Doug Lorenzen, Pamela Bishop, Phillip J. Stober, and Concerned Citizens of Lebanon County
v.
West Cornwall Township Zoning Hearing Board and Sunoco Pipeline, L.P. Appeal of: Doug Lorenzen, Pamela Bishop, Phillip J. Stober, and Concerned Citizens of Lebanon County
Argued: September 10, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, JUDGE HONORABLE MICHAEL
H. WOJCIK, JUDGE HONORABLE BONNIE BRIGANCE LEADBETTER, SENIOR
JUDGE.
OPINION
P.
KEVIN BROBSON, JUDGE.
Doug
Lorenzen, Pamela Bishop, Phillip J. Stober, and Concerned
Citizens of Lebanon County (Association) (collectively,
Appellants) appeal from an order of the Court of Common Pleas
of Lebanon County (common pleas), which affirmed a decision
of the West Cornwall Township (Township) Zoning Hearing Board
(Board). We now reverse.
I.
BACKGROUND
As
background, in 2012, Sunoco Pipeline, LP (Sunoco) announced
its intent to develop the Mariner East Project (ME Project).
The ME Project is "an integrated pipeline system for
transporting petroleum products and natural gas liquids
(NGLs) such as propane, ethane, and butane from the Marcellus
and Utica Shales in Pennsylvania, West Virginia, and Ohio to
the Marcus Hook Industrial Complex (MHIC) and points in
between." Del. Riverkeeper Network v. Sunoco
Pipeline, L.P., 179 A.3d 670, 674 (Pa. Cmwlth.) (en
banc), appeal denied, 192 A.3d 1106 (Pa. 2018). The
ME Project consists of two main phases: (1) Mariner East 1
pipeline (ME1), which utilizes Sunoco's existing pipeline
infrastructure along with an extension; and (2) Mariner East
2 pipeline (ME2), which requires construction of a new
351-mile pipeline, largely in the existing right-of-way of
ME1. Id.
On
March 21, 2014, Sunoco filed 31 petitions with the
Pennsylvania Public Utility Commission (PUC), naming 31
municipalities, including the Township. Through the
petitions, filed pursuant to Section 619 of the Pennsylvania
Municipalities Planning Code (MPC), Act of July 31, 1968,
P.L. 805, as amended, 53 P.S. § 10619, Sunoco
sought an exemption from local zoning requirements for
various buildings that Sunoco had constructed or sought to
construct in connection with its repurposing of ME1 to carry
NGLs.[1] In the petitions, Sunoco represented that
its ME1 would offer interstate service. During the course of
proceedings, the PUC indicated that there was a presumption
that Sunoco was a public utility based on prior filings. The
PUC directed the Office of Administrative Law Judges to hold
hearings as required by Section 619 of the MPC, so that the
PUC could make a determination as to whether Sunoco was
exempt from local zoning requirements with regard to ME1. On
March 5, 2015, Sunoco withdrew all 31 petitions, stating that
it no longer needed PUC exemption from zoning requirements
because it either had obtained local zoning approval through
the municipalities or would obtain such approval, thus
rendering the petitions moot. As a result of Sunoco's
withdrawal of the petitions, the PUC never issued a final
decision on whether Sunoco is a public utility corporation
with regard to ME1 and whether the repurposing of ME1 for
transporting NGLs constituted a public utility service.
On May
7, 2015, subsequent to Sunoco's withdrawal of the permits
before the PUC, the Lebanon County Planning Department
(Planning Department), as the zoning officer of the Township,
issued Sunoco a zoning permit (Permit) for "accessory
support and maintenance structures" (Structures) for a
pump station (Pump Station) and power distribution center
(Power Distribution Center) located at Route 322, 370
Horseshoe Pike, West Cornwall Township, Lebanon, Pennsylvania
(Site), and used by Sunoco as part of ME1. The Site contains
14.14 acres and includes a segment of ME1. The Site is
located in the Township's M-Manufacturing District
("M District"), which permits manufacturing and
processing only by approval for conditional use. The Permit
allows the Structures to be erected on the Site, described in
the Permit as "unmanned accessory support and
maintenance structures, under Section 27-1722" of the
Township's zoning ordinance (Zoning Ordinance), which the
Permit refers to as a "Public Utilities Exemption."
(Reproduced Record (R.R.) at 31a.) Basically, Sunoco built
the Structures around the already-existing Pump Station and
Power Distribution Center to protect its equipment and
decrease noise. The Planning Department purportedly issued
the Permit pursuant to Section 27-1722 of the Zoning
Ordinance. The Planning Department did so without requiring
Sunoco to submit an application for conditional use approval
and without a hearing or any other municipal review. Although
the Permit sought to "erect" the Structures, Sunoco
had actually constructed the Structures eight months prior to
the issuance of the Permit.
Appellants
appealed the Permit on June 5, 2015, to the Board, disputing
that Sunoco had established that it was a public utility
entitled to an exemption and challenging the issuance of the
Permit without a review of the environmental, health, and
safety impacts of the Permit as allegedly required by Section
27-1503 of the Zoning Ordinance and Article I, Section 27 of
the Pennsylvania Constitution, known as the Environmental
Rights Amendment. The Board conducted a hearing on September
15, 2015, at which Sunoco asserted that Appellants did not
have standing. As a result, the Board limited the hearing to
the issue of standing. Thereafter, the Board dismissed the
appeal, having determined that Sunoco is a public utility for
purposes of Section 27-1722 of the Zoning Ordinance, thereby
entitling it to an exemption from zoning requirements, and
that Appellants lacked standing.
Appellants
appealed to common pleas, and Sunoco intervened. Appellants
argued that the Board incorrectly based its determination
that Sunoco is a public utility entitled to an exemption
under Section 27-1722 of the Zoning Ordinance on the
PUC's general recognition of Sunoco as a public utility
through the PUC's issuance of a certificate of public
convenience. Appellants alleged that, as a result of that
premature determination, the Board wrongly denied Appellants
standing. Appellants contend that, instead, the Board should
have permitted them to present evidence that Sunoco was not
entitled to the exemption. By order dated November 21, 2016,
common pleas reversed the Board's decision and remanded
the matter for further proceedings. Common pleas directed the
Board to take evidence of and consider the factors necessary
to establish whether Sunoco is a public utility entitled to
an exemption under Section 27-1722 of the Zoning Ordinance as
set forth in Crown Communications v. Zoning Hearing Board
of the Borough of Glenfield, 705 A.2d 427 (Pa.
1997).[2] Lorenzen v. W. Cornwall Twp. Zoning
Hearing Bd., Lebanon County Legal J. (C.P. Pa., No.
2015-02106, filed November 21, 2016)[3](Lorenzen I);
(Appellant's Br. at Exhibit 2.)
On
remand, the Board conducted hearings and issued a decision,
dated August 23, 2017. The Board concluded: (1) for purposes
of ME1, Sunoco is a public utility under Section 27-1722 of
the Zoning Ordinance, thereby exempting it from Township
zoning requirements for accessory support and maintenance
structures and buildings not requiring human occupancy; (2)
the Planning Department properly issued the Permit; and (3)
Appellants lacked standing in the matter. Appellants appealed
to common pleas, and common pleas affirmed.
II.
ISSUES ON APPEAL
On
appeal to this Court, [4] Appellants maintain that the Board erred
in concluding that Sunoco's business activity involving
the repurposing of ME1 to convey NGLs qualified Sunoco for
exemption under Section 27-1722 of the Zoning Ordinance. More
specifically, Appellants argue that the Board erred as a
matter of law or abused its discretion because it based its
decision under the Zoning Ordinance on the misconceived
notion that Sunoco's use of ME1 necessarily meets the
test for a public utility given that Sunoco is a public
utility under the Public Utility Code.[5]Rather, Appellants
contend that the Board was required to apply the test for a
public utility under Crown Communications and that
Sunoco's use of ME1 does not meet that test because 90%
of the capacity of ME1 is reserved for interstate
transportation of NGLs by three shippers subject to privately
negotiated and unknown rates and, therefore, does not serve
the public or charge rates subject to review by a regulatory
body. Appellants argue that, because Sunoco does not meet the
test under Crown Communications, the Board erred by
not requiring Sunoco to apply for and receive conditional use
approval for its accessory support and maintenance structures
and by not requiring the Planning Department to consider the
environmental impacts of the Permit. Appellants also argue
that the Board erred in concluding that the Planning
Department properly issued the permit where the local
municipality never inquired into the environmental impacts of
the Permit as required by Article I, Section 27 of the
Pennsylvania Constitution, often referred to as the
Environmental Rights Amendment. Finally, Appellants argue
that the Board erred in concluding that they lacked standing;
they maintain that they have standing based on what they
characterize as the dangerous use of ME1 to transport highly
volatile NGLs as it relates to their specific properties.
Upon
review of the parties' briefs, the Court directed the
parties to file supplemental briefs, further addressing the
following two issues:
1. Whether Section 27-1722 of the Zoning Ordinance provides
for an independent "public utility exemption" from
the Zoning Ordinance, as presented by the parties, or,
instead, should be read as limiting (or prescribing),
"[f]or purposes of this Chapter," the
extent of "public utility
exemptions," such as the exemption set forth in
Section 619 of the MPC?
2. Whether the Appellants' challenge in this matter
encompasses the equipment housed in the structures on the
property, and, if so, how the presence of that equipment
violates, if at all, the Zoning Ordinance?
III.
DISCUSSION
At the
outset, we note that the issues on appeal do not affect the
legality of Sunoco's general operation of ME1 at this
Site. Rather, the issues relate only to the accessory support
and maintenance structures erected on the Site by Sunoco to
protect equipment and reduce noise.
A.
...