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In re Appeal of Andover Homeowners' Association, Inc.

Commonwealth Court of Pennsylvania

August 26, 2019

In Re: Appeal of Andover Homeowners' Association, Inc. of the Sunoco Pipeline L.P. Zoning, Building and Electrical Permit Approval by the Zoning Hearing Board of Thornbury Township, Delaware County Appeal of: Andover Homeowners' Association, Inc.

          Argued: June 3, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, PRESIDENT JUDGE HONORABLE ROBERT SIMPSON, JUDGE HONORABLE ELLEN CEISLER, JUDGE

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE.

         Andover Homeowners' Association, Inc. (Association) appeals two orders issued by the Court of Common Pleas of Delaware County (trial court) that affirmed the decisions of the Zoning Hearing Board of Thornbury Township (Zoning Board) to grant permits to Sunoco Logistics and Sunoco Pipeline, L.P. (collectively, Sunoco) to allow construction of the Mariner East 2 Pipeline project in Thornbury Township. Upon review of the Association's contentions, we affirm.

         Background

         The Association owns a common area in a planned community known as the Andover Community, which is located at 190 Middletown Road in Thornbury Township's R-1 Residential District. The community's developer set aside this common area to comply with a provision in the Township Zoning Ordinance[1] that required 40 percent of a cluster development to be maintained as open space. In 1963 and 1990, the Association's predecessor in interest granted easements to Sunoco for the location of two pipelines across what is now the common area. Neither the easement document nor the property subdivision plan contains a metes and bounds description of the location of the pipelines.

         On May 18, 2016, Sunoco filed a declaration of taking to condemn land for (1) a 2.2-acre permanent pipeline easement, (2) a 1.09-acre temporary workspace easement, (3) a 0.23-acre additional temporary workspace easement, (4) a 0.06-acre permanent access road, (5) a 0.72-acre permanent block valve easement, and (6) a 0.08-acre fenced-in site over the property for purposes of constructing, operating, and maintaining two pipelines for the Mariner East 2 Pipeline project. The Association filed preliminary objections to the declaration, which the trial court overruled on September 26, 2016. This Court affirmed the trial court's decision in In re Condemnation by Sunoco Pipeline L.P. (Pa. Cmwlth., No. 1780 C.D. 2016, filed October 24, 2017) (unreported).

         A. Zoning, Building and Electrical Permits

         In February 2017, Sunoco applied to the Township for zoning, building, and electrical permits for the installation of a five-foot-high fence, utility pole, and automated pipeline monitor equipment, all in the Andover Community's common area. The Township issued the permits. The Association appealed to the Zoning Board arguing, inter alia, that Sunoco's work was being performed outside Sunoco's easement.[2] The Zoning Board consolidated the appeals.

         At the hearing on May 1, 2017, the Township manager and zoning officer, Jeffrey Seagraves, testified that he issued the zoning permit with the condition that the easement "be marked by a licensed surveyor" for purposes of "mak[ing] sure that the fence and the work that [Sunoco was] proposing was within that existing easement." Notes of Testimony, 5/1/2017, at 10 (N.T.___); Reproduced Record at 265a (R.R.___). A copy of the zoning permit, which was admitted into the record, stated that the "boundary of the existing easement must be verified prior to the installation of new fence." R.R. 15a. The Township also presented photographs showing that Sunoco staked out the easement area where the proposed construction was to occur. Seagraves testified that he inspected the area and took these photographs.

         Seagraves testified that he supervised the review of the building and electrical permits. The Township's building code officer inspected the area where the well monitoring equipment was to be placed, including the posts and footers supporting the equipment, and determined that the footers were in the proper position. Inspectors with "electrical qualifications" issued the electrical permit. N.T. 15; R.R. 270a.

         On cross-examination, Seagraves admitted that the zoning permit was not based upon "as-built drawings [demonstrating] where the actual work was done and the scale [to] be used"; nor was there a "land surveyor stamp" confirming that Sunoco's proposed construction would take place within the existing easement. N.T. 18; R.R. 273a. As to the electrical permit, Seagraves believed that the utility pole would be installed "within the right of way," but he was unsure about the wire. N.T. 25; R.R. 280a. Nevertheless, Seagraves explained to the Board:

[Board]: When [Sunoco] made the application, was the plan included in the application?
[Seagraves]: There have been multiple plans that have come through … so I wanted to make sure we had clarification that this was in fact on the existing easement. It dates back to 1963. And then the valve contract from between [the Association's predecessor in interest] and Sunoco, it was done in 1990. If it's 10 feet - basically the easement states … that it's 10 feet off of a pipeline.
[Board]: On both sides?
[Seagraves]: Well, there's two pipes. So it's - and - the only place where I know where the pipes are is where they come out of the ground, and that's at the valve station. And that's what I wanted to be ensured of, that they were within that.

N.T. 31-32; R.R. 286a-87a (emphasis added).

         The Association presented the testimony of John Mullin, a licensed professional engineer, who had prepared the subdivision plan for the Andover Community. Mullin testified that the existing pipelines "were approximately 23 feet wide," and "run from one side to the other side." N.T. 36; R.R. 291a. Mullin agreed that the easement extended 10 feet "off of the existing pipes." Id. When the Andover Community was subdivided, Sunoco "marked out the plans[, ] located [the pipes]," and determined their width. Id. As to Sunoco's proposed construction under the permits, Mullin testified:

[Counsel]: Did you see the fence was in the easement?
[Mullin]: I had a surveyor go out and locate the fence and, you know, prepare a plan showing the - where the fence was in relationship to the existing easement. Based on that plan, it looked like it was maybe a couple feet off of where the easement is shown on the subdivision plan.
[Counsel]: Where do you understand the [utility] pole to be in relation to the easement?
[Mullin]: It looked like that was outside of the easement.
[Counsel]: And what do you understand about how the electrical line between the [utility] pole and the electrical panel was located with regard to the easement?
[Mullin]: Part of it would have been outside the easement, part of it inside the existing easement.

N.T. 39-40; R.R. 294a-95a.

         On cross-examination, Mullin acknowledged that neither the subdivision plan nor the recorded easement contained a metes and bounds description. He acknowledged the best way to locate the pipes is "to go look at them" at the valve station, as Seagraves did:

[Counsel]: So rather than comparing the fence to a subdivision plan, you could have looked at where the pipes were and took a tape measure and measured it to see whether or not those - that new fence was going to be within the existing easement. Wouldn't you agree with that?
[Mullin]: Yes.

N.T. 48-49; R.R. 303a-04a. Mullin further testified about his knowledge of the easement:

[Board]: Are you familiar with the easement? Like did you read the easement when you did the [subdivision] plan to set the boundaries on the plan?
[Mullin]: I had a surveyor set the boundaries on the plan.
[Board]: Is the easement like most easements, that it's an easement from the center line of the pipe out?
[Mullin]: Yes.
[Board]: Is this how it works? So did you dig up the pipe to accurately locate it so you know exactly where it was when you did the plan?
[Mullin]: No…. Sunoco had located it and it was placed on the ...

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