Appeal from the Order of the Court of Common Pleas of Erie County in case of Richard Heintzel et ux., et al. v. The Zoning Hearing Board of Millcreek Township and The City of Erie and The Township of Millcreek, No. 3520-A-1984.
Bruce L. Getsinger, for appellants.
Richard W. Perhacs, Elderkin, Martin, Kelly, Messina & Zamboldi, for appellee.
Judges MacPhail, Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.
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A group of landowners (Appellants) appeals a decision of the Erie County Court of Common Pleas which
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missed an appeal from a decision of the Millcreek Township Zoning Hearing Board (Board). For the reasons which follow, we must vacate.
After extensive hearings, some of which were pursuant to a remand order of the common pleas court, the Board granted the City of Erie (City) a special exception permitting the City to erect a water tower in Millcreek Township in an area zoned "B Residence." The City plans to build the tower as part of its effort to comply with an order of the Pennsylvania Public Utility Commission (PUC) directing the City to improve water service to Millcreek Township.
Appellants attack the Board's granting of the special exception on numerous grounds. We find these grounds unavailing as it is now clear under South Coventry Township v. Philadelphia Electric Co., 94 Pa. Commonwealth Ct. 289, 504 A.2d 368 (1986), that the township has no power to regulate under its zoning ordinance the erection of the water tower.
In supplying water outside of its corporate boundaries, the City is operating as a public utility. See Borough of Boyertown Appeal, 77 Pa. Commonwealth Ct. 357, 466 A.2d 239 (1983); Phoenixville v. Pennsylvania Public Utility Commission, 3 Pa. Commonwealth Ct. 56, 280 A.2d 471 (1971); Sections 1102(a)(5), 1301 and 1501 of the Public Utility Code, 66 Pa. C.S. §§ 1102(a)(5), 1301 and 1501. In South Coventry, this Court extended our Supreme Court's holding in Duquesne Light Co. v. Upper St. Clair Township, 377 Pa. 323, 105 A.2d 287 (1954), which was decided under language then found in the First Class Township Law, at 53 P.S. § 19092-3110, to cases involving the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 -- 11202. In South Coventry we said " Duquesne Light establishes as an enduring principle that there is no power possessed
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by municipalities to zone with respect to utility structures other than buildings. . . ." South Coventry Township at 295, 504 ...