Another victory for local land use control

In what amounts to a victory for local land use control, administrative law judges (ALJ's) from the Pennsylvania Public Utility Commission (PUC) issued an initial decision that, if finalized, would deny petitions filed by Sunoco Pipeline, LP, seeking exemptions to local zoning ordinances for pump stations and valve control stations proposed in thirty-one locations across the state as part of Sunoco’s Mariner East pipeline. The stations help facilitate flow through the pipeline.

A municipality may apply its zoning ordinances to a public utility building unless the PUC determines that the building is reasonably necessary for the convenience or welfare of the public. Sunoco asked the PUC to find that the proposed facilities for its Mariner East pipeline fall into this category and are therefore exempt from local zoning ordinances.   

In considering the petitions, the first question the PUC must answer is whether the buildings in question are being used as part of a “public utility service.” Considering objections made by Clean Air Council, Delaware Riverkeeper Network, Concerned Citizens of West Goshen Township, and Mountain Watershed Association, the PUC’s ALJ's determined that Sunoco’s Mariner East pipeline is not a public utility service.

The ALJs reasoned in part that in proposing its project, Sunoco is acting not as a public utility making its products available to any members of the public who may require them, but instead as a common carrier serving its limited customer base. As a result, the administrative law judges determined that the buildings constructed as part of that project are not exempt from local zoning ordinances.

Assuming the initial decision is upheld, this case would stand as the second significant win for local land use control in the last year. Last December, a plurality of the Pennsylvania Supreme Court upheld municipalities’ right to regulate the location of drilling wells under the Environmental Rights Amendment to the Pennsylvania Constitution. As the Supreme Court affirmed in that case, the obligations placed on government by the Environmental Rights Amendment “bind all government, state or local, concurrently.” These decisions empower local governments to act in their citizens’ interest to protect the environmental resources entrusted to them under the Pennsylvania Constitution. 

PennFuture's law staff contributed to this post.