D. Lorenzen v. W. Cornwall Twp. ZHB & Sunoco Pipeline, L.P. ~ Appeal of: D. Lorenzen ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Doug Lorenzen, Pamela Bishop, :
Phillip J. Stober, and Concerned :
Citizens of Lebanon County :
:
v. : No. 851 C.D. 2018
: Argued: September 10, 2019
West Cornwall Township :
Zoning Hearing Board and :
Sunoco Pipeline, L.P. :
:
Appeal of: Doug Lorenzen, :
Pamela Bishop, Phillip J. Stober, :
and Concerned Citizens of :
Lebanon County :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY JUDGE BROBSON FILED: October 23, 2019
Doug Lorenzen, Pamela Bishop, Phillip J. Stober, and Concerned
Citizens of Lebanon County (Association) (collectively, Appellants) appeal from an
order of the Court of Common Pleas of Lebanon County (common pleas), which
affirmed a decision of the West Cornwall Township (Township) Zoning Hearing
Board (Board). We now reverse.
I. BACKGROUND
As background, in 2012, Sunoco Pipeline, LP (Sunoco) announced its
intent to develop the Mariner East Project (ME Project). The ME Project is “an
integrated pipeline system for transporting petroleum products and natural gas
liquids (NGLs) such as propane, ethane, and butane from the Marcellus and Utica
Shales in Pennsylvania, West Virginia, and Ohio to the Marcus Hook Industrial
Complex (MHIC) and points in between.” Del. Riverkeeper Network v. Sunoco
Pipeline, L.P., 179 A.3d 670, 674 (Pa. Cmwlth.) (en banc), appeal denied, 192 A.3d
1106 (Pa. 2018). The ME Project consists of two main phases: (1) Mariner
East 1 pipeline (ME1), which utilizes Sunoco’s existing pipeline infrastructure along
with an extension; and (2) Mariner East 2 pipeline (ME2), which requires
construction of a new 351-mile pipeline, largely in the existing right-of-way of ME1.
Id.On March 21, 2014, Sunoco filed 31 petitions with the Pennsylvania
Public Utility Commission (PUC), naming 31 municipalities, including the
Township. Through the petitions, filed pursuant to Section 619 of the Pennsylvania
Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended,
53 P.S. § 10619, Sunoco sought an exemption from local zoning requirements for
various buildings that Sunoco had constructed or sought to construct in connection
with its repurposing of ME1 to carry NGLs.1 In the petitions, Sunoco represented
that its ME1 would offer interstate service. During the course of proceedings, the
PUC indicated that there was a presumption that Sunoco was a public utility based
1
Section 619 of the MPC provides:
[Article VI of the MPC, 53 P.S. §§ 10601-10621, pertaining to Zoning,] shall not
apply to any existing or proposed building, or extension thereof, used or to be used
by a public utility corporation, if, upon petition of the corporation, the [PUC] shall,
after a public hearing, decide that the present or proposed situation of the building
in question is reasonably necessary for the convenience or welfare of the public. It
shall be the responsibility of the [PUC] to ensure that both the corporation and the
municipality in which the building or proposed building is located have notice of
the hearing and are granted an opportunity to appear, present witnesses,
cross-examine witnesses presented by other parties and otherwise exercise the
rights of a party to the proceedings.
2
on prior filings. The PUC directed the Office of Administrative Law Judges to hold
hearings as required by Section 619 of the MPC, so that the PUC could make a
determination as to whether Sunoco was exempt from local zoning requirements
with regard to ME1. On March 5, 2015, Sunoco withdrew all 31 petitions, stating
that it no longer needed PUC exemption from zoning requirements because it either
had obtained local zoning approval through the municipalities or would obtain such
approval, thus rendering the petitions moot. As a result of Sunoco’s withdrawal of
the petitions, the PUC never issued a final decision on whether Sunoco is a public
utility corporation with regard to ME1 and whether the repurposing of ME1 for
transporting NGLs constituted a public utility service.
On May 7, 2015, subsequent to Sunoco’s withdrawal of the permits
before the PUC, the Lebanon County Planning Department (Planning Department),
as the zoning officer of the Township, issued Sunoco a zoning permit (Permit) for
“accessory support and maintenance structures” (Structures) for a pump station
(Pump Station) and power distribution center (Power Distribution Center) located at
Route 322, 370 Horseshoe Pike, West Cornwall Township, Lebanon, Pennsylvania
(Site), and used by Sunoco as part of ME1. The Site contains 14.14 acres and
includes a segment of ME1. The Site is located in the Township’s M-Manufacturing
District (“M District”), which permits manufacturing and processing only by
approval for conditional use. The Permit allows the Structures to be erected on the
Site, described in the Permit as “unmanned accessory support and maintenance
structures, under Section 27-1722” of the Township’s zoning ordinance (Zoning
Ordinance), which the Permit refers to as a “Public Utilities Exemption.”
(Reproduced Record (R.R.) at 31a.) Basically, Sunoco built the Structures around
the already-existing Pump Station and Power Distribution Center to protect its
3
equipment and decrease noise. The Planning Department purportedly issued the
Permit pursuant to Section 27-1722 of the Zoning Ordinance. The Planning
Department did so without requiring Sunoco to submit an application for conditional
use approval and without a hearing or any other municipal review. Although the
Permit sought to “erect” the Structures, Sunoco had actually constructed the
Structures eight months prior to the issuance of the Permit.
Appellants appealed the Permit on June 5, 2015, to the Board, disputing
that Sunoco had established that it was a public utility entitled to an exemption and
challenging the issuance of the Permit without a review of the environmental, health,
and safety impacts of the Permit as allegedly required by Section 27-1503 of the
Zoning Ordinance and Article I, Section 27 of the Pennsylvania Constitution, known
as the Environmental Rights Amendment. The Board conducted a hearing on
September 15, 2015, at which Sunoco asserted that Appellants did not have standing.
As a result, the Board limited the hearing to the issue of standing. Thereafter, the
Board dismissed the appeal, having determined that Sunoco is a public utility for
purposes of Section 27-1722 of the Zoning Ordinance, thereby entitling it to an
exemption from zoning requirements, and that Appellants lacked standing.
Appellants appealed to common pleas, and Sunoco intervened.
Appellants argued that the Board incorrectly based its determination that Sunoco is
a public utility entitled to an exemption under Section 27-1722 of the Zoning
Ordinance on the PUC’s general recognition of Sunoco as a public utility through
the PUC’s issuance of a certificate of public convenience. Appellants alleged that,
as a result of that premature determination, the Board wrongly denied Appellants
standing. Appellants contend that, instead, the Board should have permitted them
to present evidence that Sunoco was not entitled to the exemption. By order dated
4
November 21, 2016, common pleas reversed the Board’s decision and remanded the
matter for further proceedings. Common pleas directed the Board to take evidence
of and consider the factors necessary to establish whether Sunoco is a public utility
entitled to an exemption under Section 27-1722 of the Zoning Ordinance as set forth
in Crown Communications v. Zoning Hearing Board of the Borough of Glenfield,
705 A.2d 427 (Pa. 1997).2 Lorenzen v. W. Cornwall Twp. Zoning Hearing Bd.,
Lebanon County Legal J. (C.P. Pa., No. 2015-02106, filed November 21, 2016)3
(Lorenzen I); (Appellant’s Br. at Exhibit 2.)
On remand, the Board conducted hearings and issued a decision, dated
August 23, 2017. The Board concluded: (1) for purposes of ME1, Sunoco is a public
utility under Section 27-1722 of the Zoning Ordinance, thereby exempting it from
Township zoning requirements for accessory support and maintenance structures
and buildings not requiring human occupancy; (2) the Planning Department properly
issued the Permit; and (3) Appellants lacked standing in the matter. Appellants
appealed to common pleas, and common pleas affirmed.
2
In Crown Communications, we held:
[W]hen zoning ordinances fail to define the term “public utilities,” the term shall
be understood to mean any business activity regulated by a government agency in
which the business is required by law to: 1) serve all members of the public upon
reasonable request; 2) charge just and reasonable rates subject to review by a
regulatory body; 3) file tariffs specifying all of its charges; and 4) modify or
discontinue its service only with the approval of the regulatory agency.
Crown Commc’ns, 705 A.2d at 431-32.
3
The online edition of the Lebanon County Legal Journal, which is the official legal
periodical and court reporter for Lebanon County, contains a copy of common pleas’ opinion in
Lorenzen I at http://lebanoncountylegaljournal.org/lorenzen-bishop-stober-and-concerned-
citizens-of-lebanon-county-v-west-cornwall-township-zoning-hearing-board-v-sunoco-pipeline-
l-p-no-2015-02106/ (last visited 10/09/2019).
5
II. ISSUES ON APPEAL
On appeal to this Court,4 Appellants maintain that the Board erred in
concluding that Sunoco’s business activity involving the repurposing of ME1 to
convey NGLs qualified Sunoco for exemption under Section 27-1722 of the Zoning
Ordinance. More specifically, Appellants argue that the Board erred as a matter of
law or abused its discretion because it based its decision under the Zoning Ordinance
on the misconceived notion that Sunoco’s use of ME1 necessarily meets the test for
a public utility given that Sunoco is a public utility under the Public Utility Code.5
Rather, Appellants contend that the Board was required to apply the test for a public
utility under Crown Communications and that Sunoco’s use of ME1 does not meet
that test because 90% of the capacity of ME1 is reserved for interstate transportation
of NGLs by three shippers subject to privately negotiated and unknown rates and,
therefore, does not serve the public or charge rates subject to review by a regulatory
body. Appellants argue that, because Sunoco does not meet the test under Crown
Communications, the Board erred by not requiring Sunoco to apply for and receive
conditional use approval for its accessory support and maintenance structures and
by not requiring the Planning Department to consider the environmental impacts of
the Permit. Appellants also argue that the Board erred in concluding that the
Planning Department properly issued the permit where the local municipality never
inquired into the environmental impacts of the Permit as required by Article I,
Section 27 of the Pennsylvania Constitution, often referred to as the Environmental
Rights Amendment. Finally, Appellants argue that the Board erred in concluding
4
Where common pleas takes no additional evidence in an appeal from a decision of the
Board, this Court is limited to considering whether the Board erred as a matter of law or abused
its discretion. Singer v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144, 148 n.1 (Pa. Cmwlth. 2011).
5
66 Pa. C.S. §§ 101-3316.
6
that they lacked standing; they maintain that they have standing based on what they
characterize as the dangerous use of ME1 to transport highly volatile NGLs as it
relates to their specific properties.
Upon review of the parties’ briefs, the Court directed the parties to file
supplemental briefs, further addressing the following two issues:
1. Whether Section 27-1722 of the Zoning
Ordinance provides for an independent “public utility
exemption” from the Zoning Ordinance, as presented by
the parties, or, instead, should be read as limiting (or
prescribing), “[f]or purposes of this Chapter,” the extent of
“public utility exemptions,” such as the exemption set
forth in Section 619 of the MPC?
2. Whether the Appellants’ challenge in this
matter encompasses the equipment housed in the
structures on the property, and, if so, how the presence of
that equipment violates, if at all, the Zoning Ordinance?
III. DISCUSSION
At the outset, we note that the issues on appeal do not affect the legality
of Sunoco’s general operation of ME1 at this Site. Rather, the issues relate only to
the accessory support and maintenance structures erected on the Site by Sunoco to
protect equipment and reduce noise.
A. Standing
We will first address the threshold question of standing. Here,
Appellants appealed the Board’s grant of the Permit based on two general grounds:
(1) the Board erred in concluding that the Planning Department properly granted the
Permit pursuant to the Zoning Ordinance because Sunoco cannot meet the test for a
public utility under Crown Communications; and (2) the Planning Department’s
grant of the Permit resulted in a violation of Article I, Section 27 of the Pennsylvania
Constitution, because the municipality did not consider the environmental impacts
7
of the Permit. A challenge to a party’s standing raises a question of law subject to
this Court’s plenary, de novo review. Ams. for Fair Treatment, Inc. v. Phila. Fed’n
of Teachers, 150 A.3d 528, 533 n.2 (Pa. Cmwlth. 2016).
In the zoning challenge context, this Court has explained standing as
follows:
A person who wishes to contest a zoning approval can
initiate an appeal or challenge if he is a “person
aggrieved.” Section 913.3 of the MPC[, 53 P.S.
§ 10913.3, added by the Act of December 21, 1988,
P.L. 1329]. To establish “aggrieved” status for purposes
of standing, a party must have a substantial, direct, and
immediate interest in the claim sought to be litigated.
Laughman v. Zoning Hearing Bd. of Newberry Twp.,
964 A.2d 19 (Pa. Cmwlth. 2009). In order to have a
substantial interest, there must be some discernible
adverse [e]ffect to some interest other than the abstract
interest of all citizens in having others comply with the
law. Pilchesky v. Doherty, 941 A.2d 95 (Pa.
Cmwlth. 2008). The interest must be immediate and not a
remote consequence of the judgment. Id. A person has
standing where he has suffered or will suffer “injury in
fact” and the interest he seeks to protect is arguably within
the zone of interest sought to be protected or regulated by
the statute or constitutional guarantee in question. William
Penn Parking Garage, Inc. v. City of Pittsburgh, . . .
346 A.2d 269 ([Pa.] 1975). Aesthetic evaluation cannot
be equated with a substantial interest in the issuance of a
zoning permit. Miller v. Upper Allen Twp. Zoning
Hearing Bd., . . . 535 A.2d 1195 ([Pa.] 1987). An objector
who is located in close proximity to the land involved in a
zoning application normally has standing to contest the
application. Active Amusement Co. v. Zoning Bd. of
Adjustment, 479 A.2d 697 ([Pa. Cmwlth.] 1984).
In re Broad Mountain Dev. Co., LLC, 17 A.3d 434, 440 (Pa. Cmwlth.), appeal
denied, 24 A.3d 864 (Pa. 2011) (footnote omitted). The proximity necessary to
confer standing varies depending on the land use at issue. Armstead v. Zoning Bd.
8
of Adjustment of City of Phila., 115 A.3d 390, 403 (Pa. Cmwlth.) (Pellegrini, J.,
concurring) (“[W]here the use has been intensive and its effect emanates off the
property, [courts] have held that property owners who live well over a mile away
have standing.”), appeal denied, 129 A.3d 1244 (Pa. 2015); see also Broad
Mountain, 17 A.3d at 440-41 (holding that property owners who resided 1½ miles
from proposed wind turbines had standing based on testimony concerning possible
fires, health problems, incidents of flickering, and low frequency vibrations); Grant
v. Zoning Hearing Bd. of the Twp. of Penn, 776 A.2d 356, 359 (Pa. Cmwlth. 2001)
(holding that property owners who resided 1¼ miles from proposed electric
generating facility had standing where “wind and sound from proposed site flow to
their land”).
In the context of a claim under the Environmental Rights Amendment,
in Clean Air Council v. Sunoco Pipeline, L.P., 185 A.3d 478 (Pa. Cmwlth. 2018) (en
banc), appeal denied, 198 A.3d 1051 (Pa. 2018), a matter involving challenges to
the construction of ME2, we explained standing as follows:
On the question of standing to bring a claim under
the Environmental Rights Amendment, we look to the
Pennsylvania Supreme Court’s decision in Robinson
Township v. Commonwealth, 83 A.3d 901 (Pa. 2013)
(Robinson Twp. II ). There, the Pennsylvania Supreme
Court held that property owners within a zoning district
had standing to bring an Environmental Rights
Amendment claim based upon “the serious risk of
alteration in the physical nature of their respective political
subdivisions and the components of their surrounding
environment.” Robinson Twp. II, 83 A.3d at 922. Here,
even if they are not actual condemnees, [the plaintiffs]
allege in the [c]omplaint that the Mariner East Project is
either on or in close proximity to their property. They
assert that the project poses an increased risk of spills or
explosions that would impair their property. . . .
Consistent with the Pennsylvania Supreme Court’s
9
decision in Robinson Twp. II, this Court is satisfied that
[the plaintiffs] have asserted an interest sufficient to
support their standing to assert their Environmental Rights
Amendment claim against Sunoco. Concomitantly, Clean
Air Council also has standing. Robinson Twp. II, 83 A.3d
at 922 (“Under Pennsylvania law, an association has
standing as representative of its members to bring a cause
of action even in the absence of injury to itself, if the
association alleges that at least one of its members is
suffering immediate or threatened injury as a result of the
action challenged.”).
Clean Air Council, 185 A.2d at 495.
Furthermore, “[a]ssociations have standing to sue on behalf of their
members if they allege that at least one of their members has or will suffer a ‘direct,
immediate and substantial injury’ to an interest as a result of the challenged action.”
Citizens for State Hosp. v. Cmwlth., 553 A.2d 496, 498-99 (Pa. Cmwlth. 1989)
(quoting Pa. Gamefowl Breeders Ass’n v. Cmwlth., 533 A.2d 838, 840 (Pa. Cmwlth.
1987)), aff’d, 600 A.2d 949 (Pa.), cert. denied, 506 U.S. 873 (1992).
Appellants contend that the Board erred in concluding that they lacked
standing, because “[t]he use at the [S]ite involves placing highly-explosive NGLs
under high pressure, which could result in explosions, fires, and loud noises directly
affecting property owners within one to two miles of the Site.” (Appellants’ Br.
at 51.) Individual Appellants argue they have standing to appeal the Permit because
they live within approximately one-half mile and one mile of the Site and have been
or may be endangered and adversely impacted by the use on the Site. The
Association maintains that it has standing by virtue of the standing of its members.
Appellants argue that the Board wrongfully focused its analysis on the Structures
only and failed to consider the use. In so doing, the Board did not account for the
fact that, in the event of an explosion at the Site, the Structures could be ejected and
launched for a half mile, thereby potentially impacting two members of the
10
Association, and that an explosion could impact properties two to three miles away,
thereby impacting a third member of the Association in addition to the other two
members. For these reasons, Appellants contend that they demonstrated a particular
harm to their properties as a result of the issuance of the Permit, and the harm is
greater to them than to other citizens in the municipality.
In support of their position, Appellants point to the expert testimony of
Rich Raiders, whom the Board qualified and accepted as an expert regarding safety,
environmental, and other risk with respect to pipelines, pump stations, and other
accessory structures for the transmission of NGLs. Mr. Raiders testified as to how
Appellants’ properties would be directly affected by the use of Sunoco’s Pump
Station and Power Distribution Center. He also testified that the NGLs ethane and
propane have the potential to explode in their vapor form and that trees and other
objects, including pieces of the Structures, could become projectiles within a
quarter-mile to half-mile radius. (R.R. at 92a-93a.) He further testified that, if a
cloud explosion were to occur, windows in a two- to three-mile range could be
impacted. (Id. at 93a.) Furthermore, in terms of noise, Mr. Raiders testified that
residents as far away as two miles could probably hear noise from the Pump Station,
and the noise would be louder if the Pump Station threw a bearing and during a
hydrostatic test.6
Appellants also point to the testimony of members of the Association.
Dr. Ron Boogaard testified that he lives one-quarter to one-half mile from the Pump
Station, and he is concerned that a leak of NGLs could cause the NGLs to travel onto
6
It is not lost on the Court that, despite Mr. Raiders’ discussion of noise levels generated
by the Pump Station, the Structures erected on the Site serve dual functions—i.e., protecting the
equipment on the Site and decreasing the noise emission from the Site. If Sunoco were to remove
the Structures, presumably the noise from the Site would become louder.
11
his property in a ravine and explode, destroying his home. He is also concerned that
NGLs could pool within the Structures and could “become like a gasoline bomb.”
(R.R. at 184a.) Sandy Tshudy testified that she resides approximately one-quarter
to one-half mile away from the Pump Station and is similarly concerned that an
explosion could send pieces of the Structures onto her home and property.
Dr. Boogaard and Ms. Tshudy also testified to hearing loud noises from the Site on
one occasion when Sunoco cleared out or released pressure in ME1. Charles Henry
testified that he resides approximately one mile from the Pump Station, and he and
his wife are concerned that the emissions from the Pump Station could affect his
wife’s asthma. He is also concerned that an explosion could cause the Structures to
land on his property and that the NGLs are not infused with an odor agent to provide
warning when there is a leak. They all testified that their concerns are greater than
the average citizen due to their proximity to the Site.
Sunoco disputes that the Board erred in determining that Appellants
lacked standing. Sunoco contends that Appellants are not in sufficient proximity to
establish standing, and they did not establish any direct injury that will result from
the Structures. Sunoco observes that most of the concerns lodged by Appellants
related to the operation of ME1 itself and not the Structures. As to Appellants’
testimony that, in the event of an explosion of ME1, the Structures might land on
their property, Sunoco contends that this objection is based on the operation of ME1
and the Pump Station, not the Structures. The operation of ME1 and the Pump
Station are not the subject of the Permit now before the Court; rather, only the
erection of the Structures is at issue. Moreover, Sunoco maintains that Appellants
did not introduce any evidence to establish that debris from any theoretical explosion
would travel onto their properties.
12
The Board, in support of its determination that Appellants lacked
standing, also largely focuses on Appellants’ lack of proximity and failure to connect
potential harm to their property different than that of the average citizen with regard
to the existence of the Structures as opposed to ME1 or the Pump Station.7
We agree with Sunoco that our consideration of the facts for purposes
of standing in this matter must be limited to the potential impact of the Structures on
the specific members’ properties noted above and not the potential impact of ME1
generally on those properties. We disagree with Sunoco, however, that Appellants
failed to introduce any evidence that debris from the Structures could land on
Appellants’ properties. Mr. Raiders testified as follows:
Q. [Mr. Raiders], do you have an opinion as to whether the
individual Appellant along with the community group
have an interest greater than that of the general public as it
relates to this facility?
A. There’s a bit of a discussion about how much interest
you have because if you’re in the quarter-mile to half-mile
range you could have specific safety concerns about if
there’s an explosion in that structure with that pump in it
and that roof lands in your yard. I’d be very concerned
about that. If you’re within the two- to three-mile range
and there’s an issue where you have specific problems
with a cloud explosion, then I would be concerned that my
windows are no longer in my house or worse.
(R.R. at 92a-93a.) Although an analysis of standing based on debris from the
Structures necessarily implicates the operation of ME1, it is not based solely on
ME1. Rather, it takes into consideration the relationship between the Structures and
7
The Board also notes that Doug Lorenzen and Pamela Bishop, who are husband and wife,
and Phillip J. Stober all live approximately two miles from the Site. We observe that Appellants
do not argue in their brief that Mr. Lorenzen, Ms. Bishop, and Mr. Stober are directly and
substantially impacted by the Structures to an extent greater than the average citizen.
13
ME1, when analyzing the impact that the Structures may have on Appellants’
properties.
Given that Mr. Raiders testified that debris from the Structures could
be dispersed one-quarter to one-half of a mile, Appellants who live within that
range—i.e., Dr. Boogaard and Ms. Tshudy—have standing to challenge the permit,
because their properties may be impacted by the Structures themselves. The other
individual Appellants, who live one mile or more away from the Structures,
however, lack standing, because their objections are based upon concerns solely
related to the operation of ME1. Given that two of the Association’s members have
standing, the Association likewise has standing to appeal the issuance of the Permit.
B. Interpretation of Section 27-1722 of the Zoning Ordinance
As to whether the Board erred in concluding that Sunoco is entitled
under Section 27-1722 of the Zoning Ordinance to an exemption from zoning
requirements, we begin with a review of the relevant zoning provision.
Section 27-1722 of the Zoning Ordinance provides:
For the purposes of this Chapter, public utilities
exemptions to district requirements shall extend only to
accessory support and maintenance structures and
buildings not requiring human occupancy. Such uses and
structures including fences shall be located no closer
than 10 feet to any lot line or road right-of-way line.
Principal utility structures (e.g., sewage treatment plants,
electrical power plants, etc.) shall be permitted in any
district but shall comply in all respects with the
requirements for a principal use of the district in which it
will be located. In either case, said utility corporation shall
secure a building and zoning permit from the Zoning
officer prior to the start of construction. Said permit
application shall include any and all approvals required
by other agencies, etc., for the use specified.
(R.R. at 25a.)
14
The Board interpreted Section 27-1722 of the Zoning Ordinance as
creating an exemption for public utilities to which a public utility is entitled without
need of a hearing or other approval process. We directed the parties to brief the issue
of whether Section 27-1722 of the Zoning Ordinance provides for an “independent
utility exemption,” because we were skeptical of the Board’s interpretation. The
parties have since submitted supplemental briefs addressing this issue. Appellants
contend that the plain language in Section 27-1722 of the Zoning Ordinance merely
limits the extent of any public utility exemptions that may otherwise apply. In
response, Sunoco argues that Section 27-1722 contains an implicit independent
public utility exception. Specifically, Sunoco contends that the language at issue is
an expansion on the exemption provided in Section 619 of the MPC. According to
Sunoco, Section 619 of the MPC provides an upper threshold on municipalities’
exercise of zoning power over public utility buildings but does not prevent
municipalities from providing further constrictions in their zoning regulations
beyond what is legislatively mandated. Section 27-1722 of the Zoning Ordinance,
Sunoco contends, does just that because it limits the application of the Zoning
Ordinance to public utility buildings beyond any limitation imposed by
Section 619 of the MPC. The Township joins with Sunoco in its supplemental brief.
A review of the Zoning Ordinance reveals that it does not provide a
mechanism or procedure for obtaining an exemption from the Township’s zoning
provisions based on public utility status, and the parties do not argue that the Zoning
Ordinance explicitly creates such an exemption. Rather, Sunoco and the Township
contend that Section 27-1722 of the Zoning Ordinance must be read to implicitly
provide for a public utilities exemption. We must disagree with Sunoco’s and the
Township’s argument that Section 27-1722 creates by implication a local exemption
15
for public utilities independent of already existing exemptions, such as those created
by Section 619 of the MPC. Rather, a close reading of Section 27-1722 of the
Zoning Ordinance reveals that it merely attempts to limit or clarify the application
of existing “public utilities exemptions to district requirements” by providing that
the exemptions “shall extend only to accessory support and maintenance structures
and buildings not requiring human occupancy” and placing limits on the location of
the structures or uses on a property. In other words, Section 27-1722 attempts to
define or shape the type of zoning relief afforded to those public utilities determined
to be entitled to public utility exemptions—presumably as determined by the PUC
pursuant to the procedures set forth in Section 619 of the MPC.8 Furthermore, we
reject the notion that an exemption from local zoning can be implied to exist. That
is not to say that a municipality cannot, through its zoning ordinance, explicitly
create an exemption from zoning requirements for public utilities. Here, however,
the Township did not enact such a provision.
8
Because the Court concludes that Section 27-1722 of the Zoning Ordinance does not
establish an independent public utility exemption, we need not address the remaining issues
pertaining to the analysis employed by the Board in granting the exemption. We also do not
address whether Section 27-1722 of the Zoning Ordinance, as construed herein, impermissibly
encroaches on the PUC’s preeminent authority to regulate public utilities, as that question is not
before the Court at this time. See Del. Riverkeeper, 179 A.3d at 695 (“[Section 619 of the MPC
and Section 1202 of the MPC, 53 P.S. § 11202,] viewed in contrast to the provisions of the Public
Utility Code, support a determination that the General Assembly intended the PUC to be
preeminent in regulation of public utilities when questions arise about local zoning, absent an
express grant of authority to a local municipality.”)
16
IV. CONCLUSION
Accordingly, we reverse the order of common pleas.
P. KEVIN BROBSON, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Doug Lorenzen, Pamela Bishop, :
Phillip J. Stober, and Concerned :
Citizens of Lebanon County :
:
v. : No. 851 C.D. 2018
:
West Cornwall Township :
Zoning Hearing Board and :
Sunoco Pipeline, L.P. :
:
Appeal of: Doug Lorenzen, :
Pamela Bishop, Phillip J. Stober, :
and Concerned Citizens of :
Lebanon County :
ORDER
AND NOW, this 23rd day of October, 2019, the order of the Court of
Common Pleas of Lebanon County is hereby REVERSED.
P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Doug Lorenzen, Pamela Bishop, :
Phillip J. Stober, and Concerned :
Citizens of Lebanon County :
:
v. : No. 851 C.D. 2018
: ARGUED: September 10, 2019
West Cornwall Township :
Zoning Hearing Board and :
Sunoco Pipeline, L.P. :
:
Appeal of: Doug Lorenzen, :
Pamela Bishop, Phillip J. Stober, :
and Concerned Citizens of :
Lebanon County :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
DISSENTING OPINION BY
SENIOR JUDGE LEADBETTER FILED: October 23, 2019
Although I agree with the majority opinion in its analysis of the merits
of this dispute, I must respectfully dissent. While Objectors could clearly establish
standing with respect to potential environmental and safety problems if the use at
the site was in issue, I believe that the testimony regarding potential harm to them
with regard to the building of a structure on the property is too speculative to carry
the day. Accordingly, I would affirm on that basis.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge