O'Connor v. Pennsylvania Public Utility Com'n
| Citation | 582 A.2d 427,136 Pa.Cmwlth. 119 |
| Parties | James C. O'CONNOR, et al., Petitioners, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. |
| Decision Date | 09 November 1990 |
| Court | Commonwealth Court of Pennsylvania |
James C. O'Connor, Farage & McBride, Philadelphia, for petitioners.
Patricia Krise Burket, Asst. Counsel, with her, Frank B. Wilmarth, Deputy Chief Counsel, and John F. Povilaitis, Chief Counsel, Harrisburg, for respondent.
Donald Blanken, Philadelphia, for intervenor, Philadelphia Elec. Co.
Before SMITH and KELLEY, JJ., and BARRY, Senior Judge.
James C. O'Connor and other residents living near the proposed site of an electrical utility substation and control building (protestants) appeal from a decision of the Pennsylvania Public Utility Commission (PUC) that approved an application of the Philadelphia Electric Company (PECO) to obtain exemption from local zoning laws for the proposed facility. 1
The questions presented are (1) whether the PUC was bound to defer to an opinion expressed by the Pennsylvania Historical and Museum Commission (Historical Commission) that the area in question is of historical significance and that the proposed substation would adversely affect it, and (2) whether the findings and conclusions of the administrative law judge (ALJ) whose initial decision the PUC adopted relating to the reasonable necessity for the selected site and the adequacy of efforts to reduce the environmental incursion of the facility are supported by substantial evidence in the record.
PECO filed an application with the PUC to obtain an exemption from local zoning rules pursuant to Section 619 of the Pennsylvania Municipalities Planning Code (MPC) 2 in order to build a substation 3 on a 3.831-acre site PECO owns in a section of East Goshen Township (Township), Chester County, known as Rocky Hill. Nearby residents filed protests with the PUC, averring that the substation would have an adverse visual impact on the area, which they said was of historical value. The Township also filed a protest. The ALJ conducted a public input hearing and five days of evidentiary hearings concerning the application. He denied the request of the Historical Commission to intervene. The PUC reversed his order and allowed intervention, and the Historical Commission presented evidence. That evidence included the prepared testimony of Kurt W. Carr, Chief of the Division of Archaeology and Protection of the Historical Commission, and certain exhibits, including a letter from the Director of the Bureau for Historic Preservation of the Historical Commission to the Secretary of the PUC, stating that the opinion of that office was that "the Rocky Hill Historic District is historically significant and eligible for listing in the National Register of Historic Places as an example of the establishment and modest growth of an important type of community in Chester County, the crossroads hamlet." (Historic Commission Exhibit A-5; R.R. 735a.) The Historical Commission's recommendations for the proposed substation, in order, were (1) build it elsewhere, (2) build it underground or (3) move it to the rear of the property.
PECO presented the expert testimony of two qualified electrical engineers who testified about the need for a substation in the general area because of increased demand. They also testified that the site selected was ideal because the location afforded ease of ingress and egress for transmission lines, the size was sufficient, the cost to develop would be low because the topography was good, the site was acquired amicably for reasonable cost and had enough area for future expansion, and the corner location allowed direct access to streets for distribution lines to run north and south or east and west. Other PECO witnesses testified concerning the site selection from a real estate perspective, comparing the selected location to fifteen alternative sites that had been considered by PECO and rejected. PECO performed test archaeological digs at the site, at the request of the Historical Commission. The Historical Commission agreed with PECO's determination that no significant archaeological resources were present.
At the public input hearing one non-party witness presented a list of thirteen alternative sites. The Township also presented evidence concerning alternative sites, and a witness for the protestants presented another alternative site (Coco site). PECO's witnesses testified in rebuttal to the alternatives presented at the public input hearing and by the Township. PECO did not expressly offer rebuttal with regard to the Coco site. Its cross-examination established, however, that the witness who proposed it had never designed an electrical substation or selected a site for one and had no experience designing transmission lines. It was also established that he did not have an electrical engineering degree that he claimed to have.
The ALJ filed an initial decision approving the application subject to the conditions that PECO landscape the site in accordance with landscaping plans submitted by the Township and that noise levels at the property line not exceed levels set forth in the Township ordinance. The protestants filed exceptions to the ALJ's decision with the PUC, and PECO filed reply exceptions. The PUC issued an opinion and order denying the exceptions of the protestants, adopting the decision of the ALJ and approving the application subject to conditions the ALJ imposed. The protestants petitioned this Court for review of the PUC's action; the Township and the Historical Commission did not appeal. 4
The protestants first contend that the PUC must defer to the determinations of the Historical Commission that the Rocky Hill area is of historic significance, that the substation will have an adverse effect on the historical nature of the area, and that the substation should be located at an alternative site. Section 301(3) of the History Code (Code), 37 Pa. C.S. § 301(3), provides that the Historical Commission shall have the power and duty, among other things, to "[i]nitiate, encourage, support and coordinate and carry out historic preservation efforts in this Commonwealth." Section 508(4) of the Code, 37 Pa. C.S. § 508(4), provides that Commonwealth agencies shall "[i]nstitute procedures and policies to assure that their plans, programs, codes, regulations and activities contribute to the preservation and enhancement of all historic resources in this Commonwealth." The protestants contend that the above sections of the Code empower the Historical Commission to render decisions regarding the effect of a proposed project on the historic resources where a Commonwealth assisted, permitted or contracted project is involved.
Arguing by analogy to this Court's holding in Del-AWARE, Unlimited, Inc. v. Pennsylvania Public Utility Commission, 99 Pa. Commonwealth Ct. 634, 513 A.2d 593 (1986), protestants contend that the PUC is bound to respect such determinations of the Historical Commission. In that case the PUC approved the location of a pump house that was part of a project to divert water from the Delaware River to a creek, where it could flow to provide supplemental cooling for the Limerick nuclear generating station. The protestant citizens' group argued in part that the PUC did not adequately consider the environmental impact of the pump house under Pa. Const. art. I, § 27. 5 This Court held that Section 619 of the MPC empowered the PUC to determine only whether the site of the pump house was appropriate and in the public interest, not to reevaluate various aspects of the environmental impact of the facility that had been considered by the Pennsylvania Department of Environmental Resources (DER) when it granted construction permits for the project. We held that the PUC was obliged to defer to DER's determinations within its jurisdiction regarding environmental impact. The protestants here contend that the Historical Commission has made a similar determination within its jurisdiction, to which the PUC must defer.
The protestants contend further that although the Pennsylvania Supreme Court held in Commonwealth v. National Gettysburg Battlefield Tower, Inc., 454 Pa. 193, 311 A.2d 588 (1973), that art. I, § 27 is not self-executing, but requires legislation to define the values sought to be protected and to establish procedures by which the use of private property can be regulated to protect those values, the History Code, enacted in 1988, 6 is the type of legislation contemplated in the Supreme Court's decision.
The PUC acknowledges that this Court's decision in Payne v. Kassab, 11 Pa. Commonwealth Ct. 14, 29-30, 312 A.2d 86, 94 (1973), aff'd, 468 Pa. 226, 361 A.2d 263 (1976), established a three-pronged test for review of governmental actions challenged under art. I, § 27: (1) was there compliance with all applicable statutes and regulations relating to protection of natural resources; (2) does the record show a reasonable effort to reduce environmental incursion to a minimum; and (3) whether the environmental harm would so clearly outweigh the benefits to be derived that going ahead with the project would be an abuse of discretion. If the History Code required the PUC to defer to the Historical Commission, then the PUC's order in this case would not meet the first prong of the Payne test.
The PUC asserts, however, that nothing in the Code expressly authorizes the Historical Commission to conduct legal proceedings to determine the environmental impact of development upon a historical resource. The PUC notes that Section 502 of the Code provides in part that the Historical Commission shall have the power and duty to:
(6) Provide information and advice on historic resources and appropriate preservation procedures to public officials, private individuals and organizations.
(7) Advise public officials regarding the planning and implementation of...
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