Twp. of Marple v. Pa. Pub. Util. Comm'n

• Court: Pennsylvania Commonwealth Court
• Writing for the Court: OPINION BY JUDGE CEISLER
• Citation: 294 A.3d 965
• Docket Number: 319 C.D. 2022,No. 319 C.D. 2022
• Decision Date: 09 March 2023
• Parties: TOWNSHIP OF MARPLE, Petitioner v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent

294 A.3d 965

TOWNSHIP OF MARPLE, Petitioner

v.PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent

No. 319 C.D. 2022

Commonwealth Court of Pennsylvania.

Argued October 12, 2022

Decided March 9, 2023

Reargument/Reconsideration Denied April 25, 2023

Publication Ordered April 25, 2023

J. Adam Matlawski, Media, for Petitioner.

Christopher A. Lewis, Philadelphia, for Intervenor PECO Energy Company.

Ted Uhlman, Intervenor, Pro Se.

Adam D. Young, Assistant Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE STACY WALLACE, Judge

OPINION BY JUDGE CEISLER

Petitioner Township of Marple (Township) petitions for review of Respondent Pennsylvania Public Utility Commission's (Commission) March 10, 2022 opinion and order (Decision). Through this Decision, the Commission granted Intervenor PECO Energy Company's (PECO)¹ "Petition ... For a Finding Pursuant to 53 P.S. § 10619"² (PECO Petition), which pertained to a proposed gas reliability station (Station) PECO desired to build in the Township. Upon review, we vacate the Decision and remand this matter to the Commission for further proceedings.

I. Background

PECO initiated this project during the Spring of 2019, when it began searching for a suitable site upon which to build the Station. Reproduced Record (R.R.) at 499a. Shortly thereafter, PECO focused its attention upon a property located at 2090 Sproul Road in the Township (Property), and, on May 31, 2019, an engineering firm drafted a site plan on PECO's behalf, which diagrammed the layout of the Station as envisioned on the Property. Id. at 2125a. Per this site plan,

[t]he ... Station's design includes two buildings, a "Station Building" and a "Fiber Building." The Station Building will be enclosed and provide weather protection for the pipes, valves, regulators, and electronic equipment necessary for the operation of the Station and provide climate control for the proper functioning of this equipment. [The] Station Building will be locked to protect the equipment from unauthorized access. Additionally, the Station Building will include several sound-dampening features. The Fiber Building will protect sensitive telecommunication equipment necessary to connect the Station to PECO's control room and provide an enhanced aesthetic appeal. The ... Station will also include a perimeter security fence ... made of sound-absorbing material that will be constructed and maintained by PECO.

Decision at 7 (citations omitted). In June 2020, PECO entered into an agreement of sale with the Property's owner and, in short order, began doing roadwork and pipeline construction to facilitate a connection between its liquefied natural gas facility in West Conshohocken and the Property. See R.R. at 231a, 236a-37a, 287a-88a.³

PECO then submitted a zoning application to the Township's Zoning Hearing Board (Board), through which it requested a special exception that would authorize it to use the Property as the site of the Station, as allowed under the Township's Zoning Ordinance.⁴ See id. at 379a-89a. The Board ultimately found that PECO had failed to establish that it was entitled to its desired special exception and, on November 18, 2020, denied PECO's zoning application on that basis. See id. at 387a-94a.

On February 26, 2021, PECO filed the PECO Petition with the Commission, through which it requested that the Commission rule that the entire Project was exempt from the Township's Zoning Ordinance. Therein, PECO asked the Commission to rule that proposed locations on the Property for both the Station Building and Fiber Building were both reasonably necessary for the convenience and welfare of the public, which would have the effect of exempting the buildings from the Zoning Ordinance's strictures. Id. at 12a, 20a-21a. Additionally, PECO sought to have the Commission determine that the perimeter security fence qualified as a "facility" under Section 102 of the Code and, thus, that the requirements imposed by the Zoning Ordinance were inapplicable to the fence. Id. at 12a, 18a-20a. The Township intervened in the matter, as did a number of pro se individuals. The Commission then held a series of hearings and a panel of two administrative law judges (ALJs) subsequently granted the PECO Petition on December 8, 2021. Decision at 4. In essence, these ALJs

[found] that PECO met its burden of proving that the two buildings associated with the Gas Reliability Station should be exempt from [the] Township[’s Zoning Ordinance] because the proposed situation of the buildings is reasonably necessary for the public convenience or welfare of the public. The ALJs initially emphasized the very limited scope of the Commission's inquiry under Section 619 of the MPC. The ALJs stated that as a certificated gas utility within the meaning of the Code, PECO has the authority to build a station along the pipeline to manage the distribution and supply of natural gas in its pipes as long as it is running its facilities in compliance with state and federal regulations. Consequently, the ALJs found that concerns the municipalities and the [pro se ] Protestants raised about issues related to noise, gas emissions, aesthetics, traffic, and other health and safety concerns were beyond the Commission's review.

Decision at 13 (citations omitted).

PECO, the Township, and Theodore Uhlman, a pro se litigant, then filed exceptions to the ALJs’ ruling.⁵ Id. The Commission granted PECO's exceptions, granted in part and denied in part the Township's exceptions, and denied Uhlman's exceptions in full. See id. at 81-83. In response, the Township appealed the Commission's Decision to our Court.⁶

II. Discussion

On appeal,⁷ the Township raises two arguments, which we reorder and summarize as follows. First, the Township claims that the Commission erred by declining to consider the Station's potential negative environmental impact upon the public health, safety, and welfare, as well as its effect upon the Township's development goals, as expressed through the Township's Zoning Ordinance and comprehensive plan. Township's Br. at 25-32. Second, the Township asserts that the Commission abused its discretion by determining that PECO had established that it was reasonably necessary for the convenience and welfare of the public to site the Station on the Property. According to the Township, the evidence presented by PECO only established that its selection of the Property as the buildings’ site only benefitted PECO itself, not the general public. Furthermore, in the Township's estimation, PECO's putative site search, during which it purported to consider 15 other locations for these buildings, was essentially a sham, as PECO had already chosen the Property before conducting the search and, in doing so, ignored other viable locations and its own search criteria. Id. at 19-25.⁸

It is well settled that, by enacting the Code, the General Assembly intended to vest the Commission with preeminent authority to regulate utilities on a statewide basis. See Del. Riverkeeper Network v. Sunoco Pipeline L.P. , 179 A.3d 670, 690-95 (Pa. Cmwlth. 2018). This reflects the reality that

[l]ocal authorities not only are ill-equipped to comprehend the needs of the public beyond their jurisdiction, but, and equally important, those authorities, if they had the power to regulate, necessarily would exercise that power with an eye toward the local situation and not with the best interests of the public at large as the point of reference.

Duquesne Light Co. v. Upper St. Clair Twp. , 377 Pa. 323, 105 A.2d 287, 293 (1954). Indeed, as our Supreme Court has remarked,

[t]he necessity for conformity in the regulation and control of public utilities is as apparent as the electric lines which one views traversing the Commonwealth. If each [municipality was] to pronounce its own regulation and control over electric wires, pipe lines and oil lines, the conveyors of power and fuel could become so twisted and knotted as to affect adversely the welfare of the entire state. It is for that reason that the [General Assembly] has vested in the ... Commission exclusive authority over the complex and technical service and engineering questions arising in the location, construction and maintenance of all public utilities facilities.

Chester Cnty. v. Phila. Elec. Co. , 420 Pa. 422, 218 A.2d 331, 333 (1966) ; see 66 Pa. C.S. § 1501 (giving the Commission the power to regulate public utilities’ facilities and services throughout Pennsylvania). Accordingly, absent an express statutory directive to the contrary, municipalities are preempted from regulating public utilities’ operations. See Sunoco , 179 A.3d at 692, 694-95.

Section 619 of the MPC establishes such a carve-out, however, which gives municipalities the ability to regulate via local ordinance the location of a building that a public utility wishes to build or use, unless the "Commission decide[s] that the present or proposed situation of the building in question is reasonably necessary for the convenience or welfare of the public." 53 P.S. § 10619.⁹ This exception is one of narrow construction, for "to the extent that Section 619 ... gives any authority to local governments to regulate public utilities, that authority must be strictly limited to the express statutory language." Com. v. Del. & H. Ry. Co. , 19 Pa.Cmwlth. 59, 339 A.2d 155, 157 (1975). "Section 619 ... does not require a utility to prove that the site it has selected is absolutely necessary or that it is the best possible site." O'Connor v. Pa. Pub. Util. Comm'n , 136 Pa.Cmwlth. 119, 582 A.2d 427, 433 (1990). In order to satisfy its burden in a Section 619 proceeding, "[t]he [public utility] must show that it has made a reasonable decision, not the best possible decision. Evidence of an alternative may be the...