IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION

DOUG LORENZEN, PAMELA BISHOP, : NO. 2015-02106

PHILLIP J. STOBER, and CONCERNED :
CITIZENS OF LEBANON COUNTY
Appellants

v.

WEST CORNWALL TOWNSHIP

ZONING HEARING BOARD
Appellee

v.

SUNOCO PIPELINE, L.P.

Intervenor

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,

Lebanon County, Pennsylvania submitted by Appellants Doug Lorenzen, Pamela

Bishop, Phillip J. Stober, and Concerned Citizens of Lebanon County, it is hereby

Ordered that said Decision is AFFIRMED.

 BY THE COURT:

JCT/jah

Cc: J. Dwight Yoder, Esquire

Keith Kilgore, Esquire
Helen Gemmill, Esquire
Judith Huber, Esquire/Law Clerk
 IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA

CIVIL DIVISION

DOUG LORENZEN, PAMELA BISHOP, : NO. 2015-02106

PHILLIP J. STOBER, and CONCERNED :
CITIZENS OF LEBANON COUNTY
Appellants

v.

WEST CORNWALL TOWNSHIP

ZONING HEARING BOARD
Appellee

v.

SUNOCO PIPELINE, L.P.

Intervenor

APPEARANCES:

J. DWIGHT YODER, ESQUIRE FOR DOUG LORENZEN, PAMELA BISHOP,

GIBBEL, KRAYBILL & HESS, LLP PHILLIP J. STOBER, and CONCERNED
CITIZENS OF LEBANON COUNTY

KEITH KILGORE, ESQUIRE FOR WEST CORNWALL TOWNSHIP

SPITLER & KILGORE ZONING HEARING BOARD

HELEN GEMILL, ESQUIRE FOR SUNOCO PIPELINE, L.P.

MCNEES WALLACE & NURICK, LLC

1
OPINION, TYLWALK, P.J., MAY 30, 2018.

On May 7, 2015, Intervenor Sunoco Pipeline L.P. ("Sunoco") was issued a

permit on behalf of West Cornwall Township ("Township") for two unmanned

structures located on 14.17 acres of land in the M-Manufacturing Zoning District

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

pipeline and contains an existing pipeline previously used to transport petroleum

products from eastern to western Pennsylvania. The current pipeline will

transport both interstate and intrastate movements of natural gas liquids under

pressure from western to eastern Pennsylvania. The structures, a power

distribution center enclosure and a pump equipment enclosure, were built to

protect the pumping equipment from weather and to attenuate noise associated

with the equipment.

Appellants had challenged the issuance of the permit previously. That

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

additional testimony as to standing.

On remand, the Board conducted 4 hearings on April 25, 2017, June 6,

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.

Sunoco's Status as Public Utility

Section 27-122 of the West Cornwall Township Zoning Ordinance provides

public utilities with an exemption from zoning requirements for accessory support

and maintenance structures and buildings not requiring human occupancy:

West Cornwall Township Zoning Ordinance, §27-1722:

For the purposes of this Chapter, public utilities exemptions to

district requirements shall extend only to accessory support and
maintenance structures and buildings not requiring human occupancy.
Such uses and structures including fences shall be located no closer than 10
feet to any lot line or road right-of-way line. Principal utility structures
(e.g., sewage treatment plants, electrical power plants, etc.) shall be
permitted in any district but shall comply in all respects with the
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 requirements for a principal use of the district in which it will be located. In
either case, said utility corporation shall secure a building and zoning
permit from the Zoning officer prior to the start of construction. Said
permit application shall include any and all approvals required by other
agencies, etc., for the use specified.

(Ordinance 93, 9/8/97, §17.22) Appellants contend that Sunoco is not a public

utility corporation which is entitled to the exemption afforded by Section 27-

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

discretion or error of law. Ruprecht v. Zoning Hearing Board of Hampton

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

zoning board are not supported by "substantial evidence." Bernie Enter v.

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.

Lando v. Springettsbury Township Zoning Hearing Board of Adjustment, 286

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

Adjustment of City of Philadelphia, 585 A.2d 580 (Pa. Commw. 1991).

At the hearing conducted by the Board on the previous appeal, there was

no discussion on the record regarding Sunoco's status as a public utility. At the

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

determine public utility status enunciated in Crown Communications v. Zoning

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.

Based upon consideration of the evidence adduced at the hearings upon

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

abuse of discretion or an error of law.

5
 In reaching its decision, the Board considered the definition of "public

utility" under the Public Utility Code:

(1) Any person or corporations now or hereafter owning or operating in this

Commonwealth equipment or facilities for:

(v) Transporting or conveying natural or artificial gas, crude oil, gasoline,

or petroleum products, materials for refrigeration, or oxygen or
nitrogen, or other fluid substance, by pipeline or conduit, for the public
for compensation.

66 Pa.C.S.A. §102.

The Board noted Sunoco's history of regulation as a public utility by the

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

Corporation. By PUC Order of October 29, 2014, Sunoco was recognized as a

public utility under the PUC Code and was granted a certificate to transport

petroleum products within Pennsylvania.

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

for the suspension/abandonment of the east-to-west flow on the Mariner East 1

pipeline by Order of August 29, 2013 (Exhibit "48"), and then permitting Sunoco
6
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

season. (Exhibit 45, N.T. 82-85)

The Board referred to Sunoco's certification as a public utility by the PUC,

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

Commonwealth would be thrown into chaos if we were to hold that agency

decisions, reviewable by law by the Commonwealth Court, are also susceptible to

7
collateral attack in equity in the numerous common pleas courts." The Board

next noted that Sunoco pays the annual Pennsylvania Public Utility Tax

Assessment (N.T. 111-112) and the Pennsylvania Public Utility Gross Receipts Tax

(N.T. 111), neither of which are required of non-public utility entities.

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

reasonable request, noting that Sunoco serves shippers of large quantities of

natural gas liquids rather than end-use consumers. (N.T. 97-98) At the hearing

conducted on June 6, 2017, Sunoco designee Harry Alexander, Vice-President of

Business Development, explained that Sunoco held an "open season" to attract

any qualified shippers to become "committed" members of the pipeline who

would be entitled to ship their product at a premium rate. (N.T. at 57-58, 90-91,

117-118, 124-125) Three respondents became committed shippers who are

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)

Mr. Alexander testified as follows:

8
 Q: Okay Can you explain how Sunoco allows the 72,250 barrels per
day transportation capacity of ME1 to be used by all members of the
public upon reasonable request?

And I think what you're referring to is as far as the general

public, we're open to any qualified shipper can ship on our system.
We don't discriminate to anyone. We have capacity available for
those shippers and those shipments. And at the end of the day or at
the end of the month when the nominations come in, the product
movement group would evaluate all those nominations, and
understand, can we make these movements or are we over capacity,
and if we're over capacity, we have to prorate those movements, and
everybody gets a quote/unquote fair share.

(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

appeal, Sunoco supplemented its Brief by submitting a Notice of Recent Authority

9
to bring to the Court's attention the recent holding in The Delaware Riverkeeper

Network v. Sunoco Pipeline L.P., A.3d , 2018 WL 943041 (Pa. Commw.

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

construction would violate a Township Zoning Ordinance which regulated 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

agency of the Commonwealth with state-wide jurisdiction rather than by a myriad

of local governments with different regulations." Id., citing Commonwealth v.

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.

Based on the information presented to the Board regarding the PUC's

regulation of Sunoco's activities, the requirements of Crown test, and in light of

the holding in the Delaware Riverkeeper case, we believe there is substantial

10
evidence to support the Board's decision that Sunoco is a public utility for

purposes of the zoning regulation at issue here and is entitled to the benefits of

the exemption provided by Section 25-1722 of the Township's zoning ordinance.

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.

At the additional hearings, the Appellants were permitted to present testimony to

supplement what had been previously submitted with regard to the issue of

standing.

The Municipalities Planning Code, at 53 P.S. §10908(3) provides the

following with regard to the determination of who is a party before a zoning

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 order for an appellant to have standing to appeal a determination

of the ZBA, they must demonstrate that they are an "aggrieved person."
For a party to be "aggrieved," the party must "show an interest that is
substantial, direct, and immediate." For an interest to qualify as
11
 "substantial, there must be some discernible effect on some interest other
than the abstract interest all citizens have in the outcome of [the]
proceedings." An interest is direct where the party demonstrates "some
causation of harm to his interest." In order for an interest to be considered
"immediate, there must be a causal connection between the action
complained of and the injury to the person challenging it." Therefore, to
meet the three requirements for an aggrieved party, the party must
demonstrate that the challenged action personally harms his or her interest
in a way that is greater than that of another citizen.

Armstead v. Zoning Board of Adjustment of City of Philadelphia, 115 A.3d 390,

396 (Pa. Commw. 2015) (citations omitted).

In the Armstead case, the objectors were nine individuals who had

contested the proposed placement of a sign in their neighborhood and an

organization, Scenic Philadelphia, which based its standing to object on its

organizational purpose and the proximity of its members' residences to the

proposed sign. In dismissing these arguments, the Commonwealth explained:

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.

12
 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.

Armstead, 115 A.3d at 397-398 (citations omitted).

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

specific problem, such as inadequate construction or an increase in traffic that

was caused by the structures themselves. Instead, their complaints went to the

function and performance of the pipeline itself. These individuals were

13
concerned with noise, emissions, explosions, and the functions of the equipment

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

appropriately determined that the individual appellants lacked standing to

contest the issuance of the permit for the two structures.

We also agree with the Board's determination that the Concerned Citizens

Organization lacked standing. This entity is a non-profit corporation association

which was formed in October of 2014. The organization has no officers,

owns/leases no property, and its address is that of two of the individual

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

persons" as none were adjoining landowners, lived in the immediate vicinity of

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
14
other citizens residing in the Township and none had demonstrated any

substantial, direct or immediate harm. We believe this decision is likewise

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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