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,
HANNAH LEAVITT, PRESIDENT JUDGE.
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.
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 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.
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)
Zoning, Building and Electrical Permits
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. The Zoning Board consolidated the appeals.
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
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;
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).
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,
[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.
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?
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?
[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 ...