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PENNSYLVANIA
CIVIL DIVISION
v.
v.
ORDER OF COURT
AND NOW, this 30th day of May, 2018, upon consideration of the appeal
from the decision of the Zoning Hearing Board of West Cornwall Township,
JCT/jah
CIVIL DIVISION
v.
v.
APPEARANCES:
1
OPINION, TYLWALK, P.J., MAY 30, 2018.
in West Cornwall Township. This site is the location of the West Cornwall
Township pump station and equipment facility for Sunoco's Mariner East 1
transport both interstate and intrastate movements of natural gas liquids under
protect the pumping equipment from weather and to attenuate noise associated
appeal was dismissed by the Board for lack of standing and Appellants had then
appealed to this Court. By Order and Opinion dated November 16, 2016, we
remanded the case to the Board to (1) determine whether Sunoco is a public
utility (2) which is entitled to the Public Utilities Exemption under Section 27-1722
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of the Township Zoning Ordinance and (3) to allow Appellants to provide
2017, June 8, 2017, June 13, 2017, and rendered a decision at a hearing on July
18, 2017. The Board issued findings that (1) Sunoco is a public utility, (2) it is
entitled to the exemption, (3) the permits were properly issued and (4) Appellants
lack standing. Appellants appealed this decision to the Court and Sunoco filed a
Notice of Intervention. We heard oral argument on the appeal, the parties filed
Briefs in support of their positions, and the matter is now before us for
disposition.
public utilities with an exemption from zoning requirements for accessory support
(Ordinance 93, 9/8/97, §17.22) Appellants contend that Sunoco is not a public
1722.
In a case where the trial court takes no additional evidence in a zoning case,
the scope of review is whether the zoning hearing board committed abuse of
Township, 680 A.2d 1214 (Pa. Commw. 1996), appeal denied 699 A.2d 737 (Pa.
1997); 53 P.S. §11005-A. An abuse of discretion exists when the findings of the
Hilltown Township Zoning Hearing Board, 657 A.2d 1364 (Pa. Commw. 1995),
alloc. denied 666 A.2d 1058 (Pa. 1995). Substantial evidence exists when a zoning
hearing board issues an opinion which sets forth the essential findings of fact and
sufficiently shows that the board's action was reasoned rather than arbitrary.
A.2d 924 (Pa. Commw. 1972). If a board's decision is legally sound and supported
4
by substantial evidence, it must be upheld. D'Amato v. Zoning Board of
At the hearing conducted by the Board on the previous appeal, there was
hearings held after remand, the Board took evidence regarding Sunoco's status as
a public utility, including consideration of the criteria set forth in the test to
Hearing Board of the Borough of Glenfied, 705 A.2d 427 (Pa. 1997):
[W]hen zoning ordinances fail to define the term "public utilities," the
term shall be understood to mean any business activity regulated by a
government agency in which the business is required by law to: 1) serve all
members of the public upon reasonable request; 2) charge just and
reasonable rates subject to review by a regulatory body; 3) file tariffs
specifying all of its charges; and 4) modify or discontinue its service only
with the approval of the regulatory agency.
Id. at 431-432.
our remand, the Board determined that Sunoco is a public utility entitled to the
aforementioned exemption. Our review of the record indicates that the Board's
decision is supported by substantial evidence and that it did not commit any
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In reaching its decision, the Board considered the definition of "public
66 Pa.C.S.A. §102.
Public Utility Commission ("PUC") and its registration by the PUC with Public
Utility Number 140001. In 2002, Sunoco received PUC approval for a Certificate
of Public Convenience ("CPC") with regard to the transfer, merger, possession and
use of the assets of the Sun Pipe Line Company and the Atlantic Pipeline
public utility under the PUC Code and was granted a certificate to transport
In its Decision, the Board noted the PUC's exercise of regulatory authority
over the Mariner East system as a public utility service, having granted permission
pipeline by Order of August 29, 2013 (Exhibit "48"), and then permitting Sunoco
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to resume service for west-to-east movements by Order of July 24, 2014 based on
its finding that the intrastate movement of propane was in the public interest as a
means of meeting peak demand for the fuel needed during the winter heating
noting that the issuance of CPCs is prima facie evidence of an entity's status as a
public utility under the Public Utility Code. (Exhibit "53") The Board further
noted numerous cases dealing with the Mariner 2 project and Sunoco's exercise
of the power of eminent domain, in which the courts found that Sunoco is a
public utility. See, e.g., In re Condemnation by Sunoco Pipeline, L.P., 143 A.3d
1000 (Pa. Commw. 2016), petition for allowance of appeal denied 164 A.3d 485
(Pa. 2016); In re Condemnation by Sunoco Pipeline, L.P. (Katz), 165 A.3d 1044
(Pa. Commw. 2017). The Board considered the Commonwealth Court's language
In re Condemnation by Sunoco Pipeline, L.P., 143 A.3d at 1017-18: "A CPC issued
by PUC is prima facie evidence that PUC has determined that there is a public
need for the proposed service and that the holder is clothed with the eminent
domain power. This Court has stated '[t]he administrative system of this
next noted that Sunoco pays the annual Pennsylvania Public Utility Tax
Assessment (N.T. 111-112) and the Pennsylvania Public Utility Gross Receipts Tax
With regard to the requirements of the Crown test, the Board first
concluded that Sunoco is required by law to serve all members of the public upon
natural gas liquids rather than end-use consumers. (N.T. 97-98) At the hearing
would be entitled to ship their product at a premium rate. (N.T. at 57-58, 90-91,
eligible to use up to ninety (90) percent of the pipeline capacity for their
interstate and intrastate movements on the Mariner East system. (N.T. 65-66,
125, 190) Ten (10) percent of the pipeline capacity is reserved for uncommitted
movements of those shippers who are not "committed" to the system. (N.T. 86,
117-118)
(N.T. at 54-55)
The Board further noted that Sunoco charges just and reasonable rates for
transportation services that are set by tariff after review by regulatory bodies.
(N.T. 99) For intrastate movements, the rate is set by tariff approved by the PUC.
(N.T. 89, 99-100) Sunoco filed tariffs for the rates for intrastate movements on
the Mariner East system which were approved by the PUC. (N.T. at 88-90, 100,
Exhibit "46") Also, Sunoco must obtain PUC approval before it modifies or
discontinues service on the Mariner East system. (N.T. 101-102, Exhibits "45" and
"48")
After the parties' Briefs were filed and we conducted Oral Argument on this
2018), in which the Commonwealth Court approved the trial court's finding that
Sunoco was a public utility for purposes of a zoning violation proceeding. In that
case, the plaintiffs sought injunctive relief to prevent Sunoco from constructing
the Mariner East 2 pipeline (ME2) in West Goshen Township, contending that the
location and setbacks for gas and liquid pipeline facilities. The trial court
dismissed the complaint and denied the request for injunctive relief based, in
part, on its finding that Sunoco is a public utility facility. In reaching its decision,
the trial court noted that "public utilities are to be regulated exclusively by an
Delaware and Hudson Railway Co., 339 A.2d 155, 157 (Pa. Commw. 1975). By
decision filed February 20, 2018, the Commonwealth Court affirmed the trial
court's dismissal of the complaint and denial of the request for an injunction.
purposes of the zoning regulation at issue here and is entitled to the benefits of
Standing
In the previous appeal, the Board had determined that Appellants lacked
standing to contest the issuance of the permit to Sunoco for the two structures.
supplement what had been previously submitted with regard to the issue of
standing.
hearing board:
(3) The parties to the hearing shall be the municipality, any person affected
by the application who has made timely appearance of record before the
board, and any other person including civic or community organizations
permitted to appear by the board. The board shall have power to require
that all persons who wish to be considered parties enter appearances in
writing on forms provided by the board for that purpose.
53 P.S. §10908(3).
In the Armstead case, the objectors were nine individuals who had
In the instant case, in accordance with all the Spahn cases, the nine
individual Objectors have not demonstrated that they are aggrieved by
Applicant's proposed sign. First, although an objector may demonstrate
standing based on the proximity of his or her residence to the subject
property, none of the Objectors in this case are adjoining property owners
or live in the immediate vicinity of the proposed sign. Based on the record,
the closest Objector lives one and a half blocks from the proposed sign,
however, under the Spahn cases, in which an objector lived within one and
a half blocks of a property and did not have standing, an objector does not
have standing merely because he or she lives within one and a half blocks
of a property. Thus, none of the Objectors have standing based solely on
living in the immediate vicinity of the proposed sign.
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Second, none of the individual Objectors have standing based on a
"particular harm" resulting from the proposed sign. At the ZBA hearing,
none of the nine individual Objectors testified that they will be able to see
the proposed sign from the windows of their homes, and only one of the
individual Objectors, Jovida Hill, testified that she will be able to see the
proposed sign from the front stoop of her home. Hill, who lives a block and
a half from the proposed sign, stated that the illumination of the proposed
sign "will make all the difference in the world." However, Hill did not
explain how illuminating the proposed sign would cause her injury or to
what extent its illumination will affect her. Because Hill does not live within
the immediate vicinity of the proposed sign and has not asserted any
particular harm resulting from the proposed sign, she has not established
standing, under SCRUB, to challenge the ZBA's decision. As for the other
eight individual Objectors, they also did not testify about how they would
suffer a particular injury from the proposed sign. Although Objectors argue
that the individual Objectors are aggrieved because they use the park
across from the proposed sign and frequently walk by the Property, this
interest is the same as the objector in Spahn, which the Supreme Court
determined is "no different from the abstract interest" of all other citizens.
Thus, because the individual Objectors were unable to demonstrate an
interest in the outcome of the proposed sign that was "substantial, direct
and immediate," they are not aggrieved parties and do not have standing
to pursue this appeal.
In the matter before us, a number of individuals from the general vicinity
surrounding the site testified at the hearings. The proximity of their residences
from the site ranged from one-third to two miles. None could identify any
was caused by the structures themselves. Instead, their complaints went to the
which was contained within the enclosures and the pipeline. None of the
individuals testified as to any particular harm they would suffer as opposed to the
concerns of the general public. Based on this evidence, we believe the Board
We also agree with the Board's determination that the Concerned Citizens
appellants. The membership roster is an email list. None of its members reside
within a 1,000-foot radius of the site. The members who testified had no specific
concerns regarding the enclosures and their concerns were likewise connected to
the pipeline and the equipment housed within the structures rather than the
structures themselves. The Board found that the Appellants are not "aggrieved
the site, none could see the site or hear any noise from their property, and there
was no evidence that any would suffer any particular harm from the placement of
these structures. In addition, their concerns were no different from that of all
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other citizens residing in the Township and none had demonstrated any
supported by substantial evidence and find no error on the part of the Board.
For these reasons, we will issue an Order affirming the decision of the
Board.
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