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Townships accused of failing to enforce ordinances over Mariner East 2

A sign marks the path of the Mariner East 1 pipeline through Chester County.

Kim Paynter / Newsworks

A sign marks the path of the Mariner East 1 pipeline through Chester County. The Mariner East 2 project would expand the current right of way and carry natural gas liquids across Pennsylvania to Marcus Hook, Delaware County.

Opponents of the controversial Mariner East 2 pipeline project are accusing two townships along the route of failing to enforce ordinances that would be violated by the pipeline in those locations.

West Goshen Township in Chester County and Thornbury Township in Delaware County have provisions in their zoning ordinances that could force the pipeline’s builder, Sunoco Logistics, to relocate the line if the municipalities chose to enforce the rules, according to the critics.

Eric Friedman of Glen Mills in Delaware County and Tom Casey of West Chester in Chester County have sent legal memos to the townships, urging them to enforce certain zoning provisions, and threatening legal action.

The initiative is the latest challenge to the project which has begun construction in some places along its 350-mile route after obtaining its final permits from the Department of Environmental Protection on Feb. 13.

Thornbury, by agreeing to Sunoco’s plan to build the pipeline in the Andover subdivision, is failing to enforce its own requirement that requires at least 40 percent of land in that subdivision to remain as open space, Friedman and Casey say.

Easements and other areas obtained by Sunoco for the pipeline amount to about 3.6 acres, reducing the open space in that subdivision to 32.5 percent, well below the 40 percent requirement, Friedman told StateImpact.

The Thornbury ordinance says the open space “shall be no less than 40 percent of the gross area of the tract.”

In West Goshen, the township is accused of not enforcing a section of a 2014 ordinance that requires pipelines to be set back from occupied structures by a “Pipeline Impact Radius” (PIR) that Friedman calculates at 1,200 feet.

The radius is not specifically measured by federal regulations but it potentially covers safety, environmental, noise or visual impacts, and in any case would at least equal the approximately 100-foot distance between Casey’s house and the proposed pipeline route, according to Friedman and Casey.

The West Goshen ordinance says pipelines that carry hazardous liquids or gases “shall be set back from all occupied structures a minimum distance equal to the pipeline impact radius.”

Casey argued that West Goshen Township is failing to enforce its ordinance because of political pressure.

“Our code does allow them to say no to the pipeline, and yet they are choosing not to,” he said. “Two-thirds of the state sits on this product, and the powers that be want this, so there’s all the political pressure.”

The memos outlining the alleged violations were sent to both townships on Feb. 10. Friedman and Casey say they will file legal complaints to a court if they don’t get responses within 30 days, and would do so on the basis of a state law that gives a private person the right to seek to enforce a zoning ordinance.

David Brooman, an attorney representing West Goshen Township, said any claim that the township is not enforcing the setback provisions in its ordinance is not “ripe” because construction is not yet taking place in that location.

“We don’t have anything to enforce right now,” Brooman said. “The township can’t enforce anything until construction begins.”

Asked whether the township would enforce the ordinance if Sunoco begins construction there, Brooman said that would have to be decided by the supervisors.

“That’s a decision the board of supervisors will have to make,” Brooman said. “We don’t know that they are actually going to start construction in that location. We’re trying to clarify that.”

Officials in Thornbury Township did not respond to several requests for comment.

The townships are among eight municipalities in the two densely populated counties that have published official statements in recent months expressing widespread public concern about the safety of the pipeline despite repeated assurances by Sunoco.

Although Sunoco recently obtained the long-awaited permits, the project is still beset by legal challenges. They include an appeal at the state’s Environmental Hearing Board by three environmental groups for a halt to construction; a pending case before the Philadelphia Court of Common Pleas over whether the project truly has “public utility” status, and now the attempt to increase local control over the project.

“It is clear from the proposed complaints that the state’s decision to authorize permits for the pipeline is not the last word on the issue,” said John Dernbach, a professor of environmental law and sustainability at Widener University in Harrisburg.

Dernbach said each of the township cases, if filed, would rely in part on a claim of the denial of due process, in which the failure to enforce an ordinance violates residents’ right to have the local government protect their health, safety and welfare.

Both the draft complaints also rely on the landmark Robinson Township case in which the Pennsylvania Supreme Court defended municipalities’ right to control oil and gas development, striking down parts of the controversial Act 13 which pre-empted towns’ ability to decide industry activity in their jurisdictions.

The complaints argue that ordinances allowing industrial development in non-industrial zoning districts violate residents’ due-process rights.

And they say that for any zoning to meet state and federal constitutional requirements, it must promote public health, safety, and welfare.

Any decision by the townships to enforce those parts of the ordinances might result in Sunoco rerouting the pipeline, Friedman said. In West Goshen, the company might achieve the required setbacks by purchasing and then demolishing properties.

But those options would be a matter for the company in its efforts to meet the requirements of newly enforced ordinances, he said.

“It’s not my role to find solutions for their recklessly planned project,” Friedman said. “I just seek compliance with thoughtfully developed municipal zoning ordinances.”

Jeff Shields, a spokesman for Sunoco, said the company has no comment on the initiative by Friedman and Casey.

On a recent call with investors, Sunoco officials expressed optimism about the construction of the Mariner East 2 pipeline, and said a third pipeline is also planned to run parallel to the current line and carry even more natural gas liquids to their Marcus Hook facility.

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