A Lebanon County judge has reversed the West Cornwall Township Zoning Hearing Board’s decision on a natural gas liquids pump station, bolstering efforts to challenge the public utility status of a Sunoco Pipeline.
The case centers around a pump station Sunoco built in 2014 off Route 322 near Butler Road, but the dispute over its construction has larger implications.
That’s because the issue of whether Sunoco is a public utility is critical to the company’s plans to build the Mariner East 2 natural gas liquids pipeline through much of Pennsylvania. The company is claiming a right to use eminent domain to construct the pipeline over the objections of property owners because it is a public utility.
Lebanon County Court of Common Pleas President Judge John C. Tylwalk acknowledged in his Nov. 21 ruling that the Pennsylvania Commonwealth Court has ruled Sunoco to be a public utility for the purpose of eminent domain takings. However, he said there are different considerations for whether a business is a public utility under zoning law, and those considerations have not been properly examined.
“Due to the (Zoning Hearing) Board’s assumption of Sunoco’s status, we have no way to determine whether their finding that Sunoco is a public utility was based on substantial evidence,” Tylwalk wrote. “For this reason, we agree that a remand is necessary for the Board to take such evidence.”
In remanding the case, he asked the zoning hearing board to hear evidence about Sunoco’s public utility status.
The pump station at issue in the case was actually built in September 2014 along the already existing Mariner East 1 pipeline. However, it has remained the subject of a convoluted two-year legal struggle.
After a challenge by anti-pipeline group Concerned Citizens of Lebanon County, Sunoco surrendered its initial building permits. Instead, it applied for and received new permits in May 2015 from the Lebanon County Planning Department allowing the structure under a public utilities exemption.
Concerned Citizens and several township residents then challenged this permit on the basis that Sunoco hadn’t proven it is a public utility.
That issue was never directly reached during a September 2015 hearing, however. The zoning board sided with Sunoco on a preliminary matter, saying the appellants didn’t have standing because the pump station does not have a significant enough impact on their properties. Concerned Citizens and three township residents filed an appeal to the Lebanon County Court of Common Pleas.
In his Nov. 21 ruling, Tylwalk said appellants may present additional evidence about their standing to pursue their appeal at to the zoning hearing board “since they were unaware that standing would be contested until the time of the hearing before the Board.”
Pam Bishop, a member of Concerned Citizens and one of the appellants, said she was pleased with the decision. After two years, it should finally give them a “fair chance to prove our case” through a hearing before the zoning board that will include an examination of Sunoco’s claim to be a public utility, she said.
Bishop is also confident that the Pennsylvania Supreme Court will ultimately side against Sunoco’s public utility claim for the purposes of using eminent domain to construct the Mariner East 2 pipeline, she said.
Sunoco spokesman Jeff Shields said the company will not comment on the pipeline decision because it involves a pending matter.
This story is part of a partnership between WITF and the Lebanon Daily News.