In re Condemnation of Springboro Area Water Authority of Property of Gillette

DISSENTING OPINION BY

Judge COHN JUBELIRER.

I respectfully dissent.

I believe the majority errs by relying on the definitions section of the Public Utility Code (Code) to define the term “underground public utility facility” as used in the Agricultural Area Security Law (Act). The Act, which does not define the term “underground public utility facility,” also does not, either expressly or by implication, make any reference to the Code.

Mere use of the term “public utility” in a statute does not require a court evaluating the statutory language to import the definition in the Code. Ernest Renda Contr. Co., Inc. v. Commonwealth of Pa., 516 Pa. 325, 333, 532 A.2d 416, 420 (1987). In Renda, the Pennsylvania Supreme Court determined that a municipality providing sewage and water service, although not a public utility as defined by the Code, is a public utility for purposes of the Tax Reform Code of 1971 (Tax Code),¹ and so, was entitled to a public utility tax exclusion. In reaching this conclusion, the Court noted that

Granted, municipal corporations are not, under definitions set forth in the [Code], considered to be “public utilities” for purposes of the Code. Nevertheless, municipalities have long been recognized as providers of public utility services....

Renda, 516 Pa. at 333, 532 A.2d at 420 (citations omitted). The Court reasoned that applying the public utility exclusion to municipalities comported with the Tax Code’s purposes, which was to save the cost from the public, who would ultimately bear it. Id. at 334, 532 A.2d at 420-21.

Similarly, in this case, as in Renda, we must look to the purposes of the Act, as compared to the Code, before we assume that the Code definition applies. One purpose of the Code is to define which entities are regulated by the Public Utility Commission (PUC), which oversees rates, service quality, and the public necessity and convenience of entities, and for which regulation the entities are assessed. See, e.g., 66 Pa.C.S. §§ 510, 1301. The stated purpose of the Act is to prevent urban sprawl from encroaching and eliminating Pennsylvania agricultural lands.² Thus, the definition can be drawn from the purposes of the Act, and does not require recourse to the Code for discerning the meaning or intent of the words.

The majority infers, without citing any authority, that because the PUC regulates public utilities under the Code, this regulation would effectuate the purposes of the Act. However, it is not within the PUC’s statutory mandate to prevent urban sprawl or to preserve agricultural lands. The majority limits the exemption for “underground public utility facilities” in Section 13(b) of the Act³ to public utilities regulated by the PUC because:

By exempting only regulated underground public utility facilities, the purpose of the Act and section 13(b) is preserved because a regulated public utility is already required to seek approval of its plans before exercising its powers of eminent domain. See section 1511 of the Associations Code, 15 Pa. C.S. § 1511; section 1104 of the Public Utility Code, 66 Pa.C.S. § 1104.

(Maj. Op. at 9-10) (footnote omitted)(emphasis in original). The majority further reasons that

in view of the Act’s purpose, it is reasonable to conclude that the General Assembly intended all condemnations of [Act protected] land to be subject to regulatory review prior to condemnation, ensuring that due consideration is given to the impact that condemnations have on the agricultural use of the land.

(Maj. Op. at 9) (emphasis in original and emphasis added). However, neither of the two sections cited requires the PUC to consider the impact of condemnations on the agricultural use of the land.

The Code section cited, and the related provisions of the Code, provide that hearings are necessary prior to issuing the initial certificate of public convenience; however, none of these provisions require a hearing or review of any subsequent specific project arising from the same utility service within a certificated service area. Additionally, to the extent any review is necessary, Section 1102 of the Code provides that the PUC shall grant a certificate only if “the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public.” 66 Pa.C.S. § 1103(a). In contrast, the Act requires the Agricultural Condemnation Approval Board (Board) to approve a condemnation only if it determines that:

(A) the proposed condemnation would not have an unreasonably adverse affect upon the preservation and enhancement of agriculture or municipal resources within the area or upon the environmental and comprehensive plans of the county, municipality and the Commonwealth, or upon the goals, resource plans, policies or objectives thereof....

3 P.S. § 913(d)(l)(2)(ii)(A). The lens through which the respective reviewing authorities examines any project is, thus, quite different — the PUC considers such factors as convenience of the public, while the Board focuses on preserving the agricultural nature of the community. Convenience and preservation are often adversary principles, such that a regulatory oversight premised on the former, may be at the expense of the latter.

The majority also cites Section 1511 of the Associations Code, 15 Pa.C.S. § 1511. This section specifically authorizes public utilities to exercise eminent domain for any of several purposes which include water accumulation and distribution. The section also discusses when PUC approval is necessary, limiting such approval to various types of poles and aerial facilities (e.g., utility poles, aerial wires); however, nothing from this section requires PUC review of an entity’s efforts to install underground public utility facilities.

In the absence of any indication in the Act that the term “underground public utility facility” is intended to be defined by legislation that has a totally different purpose, like Renda, I would merely interpret the term according to its plain meaning. “Public utility” can be commonly defined as “[a] company that provides necessary services to the public, such as telephone lines and service, electricity, and water.” Black’s Law Dictionary 1582 (8th ed.1999). The meaning of “underground” is clear, and a common definition for “facility” is “[sjomething ... that is built, installed, or established to serve a particular purpose.” Merriam-Webster Collegiate Dictionary 447 (11th ed.2004). The water services provided here are necessary services, and the pipes and associated hardware are built to serve the purpose of providing the water service.

Therefore, I do not believe the majority’s reasoning supports a legislative intent to import the definitions of the Code into the Act.⁴ As I would find the use in question in this case falls within the underground public utility facility exemption of Section 13(b), I would affirm the trial court’s decision.

For these reasons, I believe the trial court properly decided this issue and would, therefore, affirm.

1 . Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §§ 7101-10004.

2 . The statement of legislative findings for the Act provides that:

Agriculture in many parts of the Commonwealth is under urban pressure from expanding metropolitan areas. This urban pressure takes the form of scattered development in wide belts around urban areas, and brings conflicting land uses into juxtaposition, creates high costs for public services, and stimulates land speculation. When this scattered development extends into good farm areas, ordinances inhibiting farming tend to follow, farm taxes rise, and hopes for speculative gains discourage investments in farm improvements....

3 P.S. 902.

3 . 3 P.S. § 913(b).

4 . Commentators have noted that, even as of ten years ago, the Act has saved thousands of acres of Pennsylvania farmland, and that “[t]he success of this program may lie in its emphasis on local review.” Joseph Sabino Mistick, Recent Developments in Pennsylvania Land Use Planning, 34 Duq. L.Rev. 533, 534 (1996). With such a focus on local review, it seems unlikely that the General Assembly premised the exceptions in Section 13(b) on oversight by a non-local bureaucracy. In contrast, it seems far more congruent with the Legislative intent that the exception is read in a manner that, effectively, authorizes a local water authority that works exclusively within a particular locale, and is subject to local review, to bury its pipes four feet beneath the surface.

Additionally, the Administrative Code of Boards and Commissions, in discussing the make-up, responsibilities and jurisdiction of the Board, specifically precludes the Board from having jurisdiction over cases involving underground pipes used to transport liquid waste. Section 306 of the Administrative Code of 1929 (Administrative Code), Act of April 9, 1929, P.L. 177, added by Section 1 of the Act of December 7, 1979, P.L. 478, 71 P.S. § 106. Specifically, this section provides that:

(d) The [B]oard shall have jurisdiction over condemnation for the following purposes:

(2) Disposal of solid or liquid waste material, but not including underground pipes used to transport waste.

71 P.S. § 106(d)(2)(emphasis added). As the Administrative Code and the Law "relate to the same ... things” the two are "in pari materia” and must be construed together. See Hutskow v. Washowich, 156 Pa.Cmwlth. 655, 628 A.2d 1202, 1207 (1993), pet. for allowance of appeal denied, 536 Pa. 633, 637 A.2d 293 (1993). Removing the placement of underground pipes from the jurisdiction of the Board shows a legislative intent to allow uses similar to those in the within case, without requiring approval of the Board.