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SOUTH COVENTRY TOWNSHIP AND JAMES OTTINGER v. PHILADELPHIA ELECTRIC COMPANY (01/22/86)

decided: January 22, 1986.

SOUTH COVENTRY TOWNSHIP AND JAMES OTTINGER, APPELLANTS
v.
PHILADELPHIA ELECTRIC COMPANY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in the case of Philadelphia Electric Company v. South Coventry Township and James Ottinger, No. 84 01645.

COUNSEL

Robert W. Lentz, Lentz, Cantor, Kilgore & Massey, LTD, for appellants.

Bernard Chanin, with him, Jeffrey S. Saltz, Wolf, Block, Schorr and Solis-Cohen, and John G. Kaufman, with him, Edward J. Hughes, Kaufman & Hughes, for appellee.

Judges Rogers, Barry and Palladino, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 94 Pa. Commw. Page 290]

This appeal stems from an order of the Chester County Court of Common Pleas which permanently enjoined and restrained South Coventry Township (township),*fn1 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

[ 94 Pa. Commw. Page 291]

    of a siren alert 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 case of the Limerick Station embraced forty-two separate municipalities located within Montgomery, Berks and Chester Counties, including South Coventry Township.*fn2

Following the installation of 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, 1984, 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.

[ 94 Pa. Commw. Page 292]

Following the issuance of a preliminary injunction, hearings were held before the common pleas court. The principal issue before the court was whether PECO's operation of the siren alert system was subject to regulation under the township's zoning ordinance. The court determined that the Pennsylvania Municipalities Planning Code (MPC) was not authority for the regulation of PECO's operation of the system, finding specifically 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 the 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 based 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 not at 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 MPC*fn3 to support its position in the present ...


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