South Coventry Township v. Philadelphia Electric Co. , 94 Pa. Commw. 289 ( 1986 )

Opinion by

Judge Babby,

.....This' appeal stems from an order of the Chester County Court of Common Pleas which permanently .enjoined and restrained South Coventry Township (township),¹ appellant, from enforcement of its zoning ordinances against Philadelphia Electric Company (PECO), appellee.

In .early 1984 PECO was engaged in the final stages..of preparing Unit, 1 of its Limerick Nuclear Power. Generating Station for commercial operation. "In order to satisfy both the requirements of .the Nuclear Regulatory Commission (NRC) and the responsibilities allocated to it by the Pennsylvania Emergency Management Agency (PEMA), PECO initiated the installation of two hundred siren towers, as part of a is-ire-n alent system, within an approximate-, ten-mile Radius of the -plant. The involved area is known, as the “plume -exposure. pathway . Emergency Planning Zone” (EPZ), and in the ease of the Limerick Station embraced forty-two .separate , municipalities located within Montgomery, Berks and Chester Co-unities,- including Sionth Coventry Township.²-. ....

Eo-Uiowdn-g the installation pf (two of the siren towers in South Coventry Township, the township’s .zoning officer informed the landowners upon whose properties the (structures had been erected that the siren towers were in violation of a' township zoning ordinance. Shortly thereafter, the township began to issue multiple citations to -PECO for violation of the ordinance. On March 9, 198,4, PECO instituted an . action to enjoin the township- from enforcing its zoning ordinance, -and ¡seeking declaratory relief to the effect that the -placement and operation of the siren alert system was exempt from the zoning ordinance.

Following the issuance of a preliminary injunction, hearings were held, before the common pleas court. The principal isisue before the court was whether PECO ’s operation ,of the siren alert system ¡was subject to regulation under the township’is zoning ordinance. The qourt determined that the Pennsylvania Municipalities Planning Code (MP.C) Was not authority for the regulation of PECO’s operation of the system, finding spieicifiqally that the siren towers constituted facilities of a public utility and were hence under the exclusive regulatory jurisdiction of the Public Utility Commission. Noting that PECO would suffer irreparable harm were it not permitted to complete construction of its siren alert system, the court concluded by directing in its decree nisi of July 12, 1984, that a permanent injunction issue. After exceptions were filed and dismissed the township then initiated this appeal.

We note as a preliminary matter that ¡the scope of our review in ithe controversy before us is limited to a determination of whether or not the trial court committed .an error of law or a manifest abuse of discretion. Rush v. Airport Commercial Properties, Inc., 28 Pa. Commonwealth Ct. 51, 52, 367 A.2d 370, 371 (1976). As we find .that the trial court has baaed its opinion upon adequate grounds ¡and correct legal interpretation, we affirm the order granting injunctive and declaratory relief .and dismiss the appeal of the township.

While .the township has hot ajt any point asserted that it possesses an exclusive or plenary jurisdiction to regulate 'the operations of a public utility such as PECO, it has relied on section 619 of the MPC³ to support its position in the present qoutroversy. Following ian enumeration of, among other things, the general powers of ¡and methods by which municipalities are to •enact, amend and repeal zoning ordinances,⁴ the MPC includes the following provision:

Exemptions: This article shall not apply to any existing oir proposed building, or extension thereof, used or to he used by a public utility corporation, if upon petition .of the corporation, the Pennsylvania Public Utility Commission 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.

The township has seized upon ¡this language and interpreted it as an implied grant of authority to zone PBGO’s siren alert system, arguing that in lieu of a successful petition to the PUC, .any “¡structure” sought to be erected by a public utility is subject to the municipality’¡s zoning regulations. As if is undisputed that PECO never submitted any such petition ,to the PUC, the township asserts that the siren towers are automatically subject to the zoning powers of the township.

This interpretation of Section 619, was, however, discredited long ago in Duqesne Light Co. v. Upper St. Clair Township, 377 Pa. 323, 105 A.2d 287 (1954). In Duquesne Light, a municipality attempted to enforce its zoning ordiniauee against a utility which wished to erect a transmission line between a new generating station ¡and a .distributing station. Following the grant of an injunction against the municipality, the latter, invoking the same statutory language then included in the First Class Township Law, 53 P.S. §19092-3110, proposed precisely the same argument as advanced by the township here — ¡that as buildings alone were to be exempted from possible application of zoning laws, a general zoning power had been .thereby granted to the township, which would enable it to regulate public utility “uses iand structures.” 377 Pa. at 333, 105 A.2d at 292. The Duquesne Light court expressly rejected this notion, biased upon reasoning we find .applicable to the present case.

Preceding the court’s explicit rejection of the township’is .argument wias its acknowledgement of another provision of the First Clasis Township Law, which then provided that “ [the latter statute] was not to ‘repeal or modify any of .the .provisions of the Public Utility Law’ of 1937.” 377 Pa. at 333, 105 A.2d at 291 (quoting 53 P.S. §19091-3502). The Court noted likewise that the original version of ¡the First Class Township Law, enacted in 1931, included exactly the .same proscription with respect to its effect on .the Public Service Company Law lof 1913. Id. The court concluded that “long before first class townships ever acquired any zoning powers, the [legislature] had clearly expressed the policy ,of the Commonwealth to commit the regulation of public utilities to a commission of statewide jurisdiction____” Id.

With this preemptive statute in mind, the court rejected the township’s construction of Section 3110:

[The] exemption merely grants an express power (not contained tat all in the section granting general zoning plower) to zone with respect to buildings of a public utility company, subject to ,a determination by the commission that the present or proposed location of snoh buildings is not reasonably necessary for the convenience of [or] welfare of the public. This ooustruction in no Way modifies the Clode, for it can be seen that ithe [Public Utility] Commission ... is entrusted with the vital determination of necessity. We therefore conclude that the policy of .the Commonwealth in entrusting to the Commission the regulation and supervision of public utilities bias excluded townships from the same field, and that no power in townships to enter that area lean be read into the First Class Township Law by implication.

377 Pia. at 334-35,105 A.2d at 292.

This reasoning must likewise control in this case. Just as the “building” exemption has survived in the MPC from its [earlier .inclusion in the First Class Township Law, so has the adjuration that the MPC “shall not repeal or modify any of the provisions of the ‘Public Utility Law’____” 53 P.S. 11202.

Still, the township has attempted to distinguish Duquesne Light, arguing that it must be read narrowly to apply only to instances where the involved structure is directly related to the transmission or conveyance of a specific utility service. Such an argument, however, is unpersuasive for two reasons. First, based on our conclusion above, Duquesne Light establishes as an enduring principle that .there is no power possessed by municipalities to zone with respect to utility structures other than buildings — and then, of course, only after the PUC has reached a determination with respect to the public convenience need for the building. And, we conclude, just as power lines were deemed ■structures .in Duquesne Light, so must the siren towers be considered in the present Case. Second, we must note that the s.ame policy concern which underlay the Duquesne Light decision is present under the facts in this case. That policy, which rejects the parochial concerns of local interests, was clearly articulated in Duquesne Light:

It is .clear that the proposed transmission line is necessary for the rendition of efficient service to the public and that that necessity transcends the legitimate objectives of 'any one of .the political .subdivision of the ‘Commonwealth. . . . [T]Ms is the reason why .the General Assembly entrusted the regulation of public utilities to a commission of statewide jurisdiction. Local authorities are ill-equipped to comprehend the needs of the public beyond their.jurisdiction . . . [and] those authorities, if they had the power to regulate necessarily would exercise that power with an eye toward the local situation and not with the best interests of the public at large as the point of reference.

377 Pa. at 335-36, 105 A.2d at 293.

This policy was succinctly reaffirmed by this court in Commonwealth v. Delaware & Hudson Railway Co., 19 Pa. Commonwealth Ct. 59, 61, 339 A.2d 155, 157 (1975) (“public utilities are to be regulated exclusively by an agency of the Commonwealth with state-wide jurisdiction rather than by a myriad of local governments with different regulations ’ ’).⁵

That this policy is in need of vindication in the involved controversy is well apparent. For PECO to comply with both federal and state requirements, it must erect its siren alert system in no less than forty-two separate municipalities; to possibly subject PECO to a miscellaneous collection of regulations upon its system would clearly burden and indeed disable it from successfully functioning as a utility.

The .township has argued in the alternative that the siren towers are not properly to be considered uses or structures of a public utility, and hence exempt from local zoning, but are rather “Emergency Management Facilities.” Pursu'aaut to this ohaTiacferizatio'n, the township argues that, because the siren alert system has not been “planned or approved” by PEMA, under the auspices of which the system was being- constructed, the very construction of the system is unlawful and hence that the siren towers are, as if by default, subject to municipal zoning. This assertion was flatly rejected by the trial court, which found the siren alert system both to come clearly within the definition of a public utility “facility,” and to be constructed pursuant to its responsibility under PEMA’s disaster operations plan.⁶ With these conclusions we are in agreement.

The Public Utility Code defines “facilities” as follows :

‘Facilities.’ All the plant and equipment of a public utility, including all tangible and infangable Real and jperaional pmopeirity wiitibout limitation, and any and all means and instrumentalities in any manner owned, operated, leased, licensed, used, controlled, furnished, or supplied for, by, or in connection with, the business of •any public utility....

66 ,Pa. C.’S.A. §102. As a vital piart iof PECO’is operation, it is clear to us that the siren tower components of the isiren alert system qome within this definition, ■and thus property fall within the zoning-exempt operations of a public utility. Further, wie find no merit in the [township’s assertion that qonsitrnction of the siren alert system was undertaken in an unlawful manner, as PECO was merely meeting the responsibilities allocated to it by PEMA, and was .doing so with full acknowledgment and approval of the agency.⁷

We will add that iit is mo doUbit correct to consider ¡the siren tower components of the siren, aleirt system to be “Emergency Management Faciliftieis.” Nevertheless, that the construction of the siren alert system was undertaken pursuant to PECO’is responsibilities under the disaster operations plan and NBC requirements in no wiay detracts from the public utility facility status of the siren towers. It may well be that the components of the system possess a dual character, but this does not wlork to deprive them, as the township suggests, from being public utility facilities.

Although the township has aisio argued that the trial court erred in finding that PECO was entitled to injunctive relief, we find no error in this respect. While it has long been held that equity will not operate to provide relief where there is an adequate remedy at law, St. Joe Minerals Corp. v. Goddarg, 14 Pa. Commonwealth Ct. 624, 324 A.2.d 800 (1974), we agree with the trial court that in this case PECO is threatened with irreparable harm, and this principle will therefore not apply. See Wood v. Goldvarg, 365 Pa. 92, 74 A.2d 100 (1950). It is undisputed that PECO cannot obtain a full-power license from the NBC unless and until an appropriate warning system is in place and operable in the EPZ. The reeiord also demonstrates that the plant will be ready to begin operations imminently, and the granting of injunctive and declaratory relief is appropriate where, as here, no. other practical administrative procedure is available, ,amd where PECO would face irreparable financial harm if numerous local jurisdictions attempt to apply zoning regulations to its operations.

In addition to PECO’® inability to obtain NEiC licensing, it is evident thiat the application of tine zoning ordinance by South. Coventry Township alone would subject PECO to “exorbitant and oppressive penalties” in the form of multiple dally .citations by the township; as the trial court found, when the erection of the third siren tower wias commenced, PECO would be subject to fines of as much as $3,000 per day. In such instance® equity miay ialso operate-, notwithstanding the presence of a legal remedy such as a challenging of the citations before a district justice. See Duquesne Light, 377 Pa. at 340-41, 105 A.2d at 295. The trial court, we conclude, committed no error when it issued the injunction in this case.

We have reviewed the record in this case and have found the township’® contentions to be lacking in merit. Accordingly, the trial court is affirmed.

Order

Now, January 22, 1986, the order of the Court of Common Pleas of Chester County, dismissing exceptions to the granting of a permanent injunction in the above captioned ease, is affirmed.

1 An additional named defendant in this proceeding and before the trial court was James Ottinger, South Coventry* Township’s zoning officer.

2 The installation of the siren alert system was undertaken pursuant to the requirement that "a system be' in place to notify the public in the EPZ of any radiological emergency. 10. C.F.R. §50.47(b) (5). .The precise- placement of the siren towers, is determined by application of a computer model which takes into account the demographic 'and topographic features of the involved territory; the underlying goal of such precise placement is to provide the EPZ with an adequate, warning sound level.' Three of the two hundred locations were-determined tb be-in South .Coventry Township. Without a siren alarm system or its equivalent in the EPZ, a full power operating license will not be granted by the NRC. Determination of the adequacy of the system and of state and local off-site emergency preparedness standards is the responsibility of the Federal Emergency Management Agency (FEMA), which makes recommendations with respect to permits for nuclear facilities to the NRC. PEMA, in turn, altoe-aites the responsibility of establishing the siren alarm system to the particular nuclear facility in annex E of its disaster operations plan. PEMA is under a statutory directive to establish the latter plan, which, significantly “may include provisions for: (i) Preparedness standards established by the Federal Emergency Management Agency.” 35 Pa. C. S. §7313(1) (i):

3 Act of July 31, 1961, P.L. 805, as amended, 53 P.S. §10619.

4 53 P.S. §§10601-10618.

5 See also Duquesne Light Co. v. Monroeville Borough, 449 Pa. 573, 580, 298 A.2d 252, 256 (1972) (PUC has exclusive regulatory jurisdiction over the implementation of public utility facilities); County of Chester v. Philadelphia, Electric Co., 420 Pa. 422, 425-26, 218 A.2d 331, 333 (1966) (regulation by a multitude of jurisdictions would result in “twisted and knotted” public utilities with consequent harm to general welfare).

6 The disaster operations plan was promulgated by PEMA pursuant to its duties under the Emergency Management Code at 35 Pa. C. S. §7313, which provides, in pertinent part:

Section 7313. Powers and Duties. The agency shall have the following powers and duties:

(1) To prepare, maintain and keep current a Pennsylvania Emergency Management Plan for the prevention and minimization of injury and damage caused by disaster, prompt and effective response to disaster and disaster emergency relief and recovery. The plan may include provisions for:

(i) Preparedness standards established by the Federal Emergency Management Agency.

(ii) Commonwealth and local disaster emergency management responsibilities.

(iii) Assistance to Commonwealth and local govem- ■ ment officials in designing emergency management plans and training programs.

(iv) Organization of manpower, chains of command, continuity of government in emergency situations and emergency operational principles.

Annex E of the plan, subtitled “Fixed Nuclear Facility Incidents,” assigns among other things, as a “facility responsibility” the duty to- “provide and maintain a siren-alert system within the plume exposure pathway EPZ. . . .”

7 The township’s specific argument is that PEMA has failed to meet its responsibilities under the Emergency Management Code and indeed under its own disaster operations plan. With reference to the siren alert system, the township argues that it was PEMA, and not PECO, that was the correct party to supervise and direct the installation of 'the system. We find no merit in this assertion; PEMA has been directed by the legislature to institute an emergency management plan, and neither section 7313, nor the agency’s own annex E designates who is to perform the precise technical undertaking of designing and constructing the system. Additionally, PEMA was fully aware, receptive and knowledgeable of PECO’s design and installation of the system. As we conclude that the siren towers are in any case facilities of a public utility, and hence not subject to zoning, determination of the organization responsible for the technical design of the siren alert system is not pertinent to our analysis.

Similarly, we decline to resolve the issue, stressed so forcefully by the township, that annex E of the disaster operations plan is actually a “regulation,” and is of no use for any purpose because of PEMA’s failure to file the plan under the Commonwealth Documents Law. See Act of July 3, 1968, P.L. 769, No. 240, Art. II §208, 46 P.S. §1208. It may very well be that at least portions of annex E rise to the level of resembling “regulations,” see Newport Homes, Inc. v. Kassab, 17 Pa. Commonwealth Ct. 317, 328, 332 A.2d 568, 574 (1975), but the issue herein involved is the legal efficacy of municipal zoning laws with respect to what we have determined to be public utility facilities. As the latter are, by their very nature, exempt from such zoning, the legal status of the plan, only partially pursuant to which the system was being installed in the first place, is likewise not dispositive of this case.