              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Deiter Family, L.P.                             :
                                                : No. 202 C.D. 2015
                       v.                       : Argued: September 17, 2015
                                                :
City of Easton Building Code                    :
Board of Appeals and City of                    :
Easton and W.B. Moore, Inc.                     :
                                                :
Appeal of: City of Easton and City              :
of Easton Building Code Board of                :
Appeals                                         :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                                     FILED: November 9, 2015

               The City of Easton (City) and the City of Easton Building Code Board of
Appeals (Board) (together, Appellants) appeal from the January 27, 2015, order of
the Court of Common Pleas of Northampton County (trial court) reversing the
Board’s decision to deny the request of Deiter Family, L.P. (Deiter) to install a
30,000-gallon propane storage tank on its property.1 The trial court held that the
Propane and Liquefied Petroleum Gas Act (Act 61)2 preempted City Ordinance §245-




      1
          The Pennsylvania Propane Gas Association has filed an amicus brief in support of Deiter.

      2
          Act of June 19, 2002, P.L. 421, No. 61, as amended, 35 P.S. §§1329.1-1329.19.
8G(11),3 which limits storage of liquefied petroleum gas (LPG)4 to 2,000-gallon
tanks. The trial court further held that substantial evidence did not support the
Board’s determination that the proposed 30,000-gallon propane tank was dangerous.
We affirm.


                Since 1998, Deiter has owned property located at 1025 Bushkill Drive in
Easton (Property). The Property is located in the Adaptive Reuse (AR) district,5
which permits liquid fuels. The Property, which is in excess of one-half acre, is used
for the storage and distribution of LPG and contains a Pacific Pride station. The
Property has three 10,000-gallon underground storage tanks.


                Deiter submitted an application to install one 30,000-gallon above-
ground propane storage tank. The City Bureau of Codes and Inspections denied the
application because the capacity of the proposed tank is greater than the 2,000-gallon
limit permitted under City Ordinance §245-8G(11), which provides:

       3
         The City has adopted the Uniform Construction Code (UCC), 34 Pa. Code §§401-405, but
with a series of amendments and deletions. See City Ordinance §§245-4B and 245-8.

       4
        Section 2 of Act 61 defines “LPG” as “[a]ny material in liquid form that is composed
predominately of any of the following hydrocarbons or mixtures thereof:

       (1)   Propane.
       (2)   Propylene.
       (3)   Normal butane or isobutane.
       (4)   Butylenes.”

35 P.S. §1329.2.

       5
          The purpose of the AR district is “to promote the redevelopment and revitalization of
underutilized and underperforming areas of the City with mixed residential and commercial uses
and industrial development.” §595-115A(1) of the City of Easton Zoning Ordinance.


                                              2
               The bulk storage of [LPG] is prohibited within the entire
               City limits, excepting only those areas zoned for industrial
               uses. Within the limits established by law in the adopting
               ordinance restricting the storage of [LPG] for the protection
               of heavily populated or congested areas, the aggregate
               capacity of any one installation shall not exceed a capacity
               of 2,000 gallons.


               On May 28, 2014, Deiter applied to the Board for a variance, arguing
that Act 61 preempts City Ordinance §245-8G(11). At the Board hearing, Deiter
presented evidence that the 47-foot-by-11-foot storage tank would be located at the
rear of the lot with a 6-foot-high fence surrounding the storage tank. There would be
a 20-foot rear setback and a 25-foot side-yard setback.


               Deiter also introduced a “Preliminary Fire Safety Review” prepared by
Daniel S. Watters, who concluded that the storage of propane is safe, acceptable, and
appropriate.


               Gerry Weslowski, Deiter’s manager of propane services, testified that
there are emergency shutoff valves and a backup system in case of an emergency. He
testified that 9,000 gallons of propane would be delivered to the proposed 30,000-
gallon storage tank twice each week.


               The City’s fire marshal testified that a 30,000-gallon storage tank would
pose an undue risk to public safety. Specifically, in the case of an accident, there are
not enough emergency resources available. The fire marshal discussed evacuations,
roadblocks, and a condition known as boiling liquid expanding vapor explosion

                                            3
(BLEVE), which is caused by the rupture of a storage unit containing pressurized
liquid above its boiling point. The fire marshal showed a video of a BLEVE in
Canada.


             Cindy Cawley, Chief Code Administrator for the City, testified that the
Property is less than 1,000 feet from Lafayette College and Route 22 and is heavily
populated.    W. Burns Moore, an abutting property owner, voiced his objection to
the storage tank via a letter.


             The Board determined that City Ordinance §245-8G(11) limits storage
tanks to 2,000 gallons. The Board further concluded that Act 61 does not preempt
City Ordinance §245-8G(11) because Act 61 does not regulate the capacity of a
storage tank. Thus, the Board denied the variance.


             On appeal, the trial court reversed, relying on JoJo Oil Company, Inc. v.
Dingman Township Zoning Hearing Board, 77 A.3d 679 (Pa. Cmwlth. 2013), appeal
denied, __ A.3d __ (Pa., No. 791 MAL 2013, filed April 2, 2014). In JoJo Oil, this
court examined whether Act 61 preempted the special exception standards set forth in
the municipality’s ordinance. In that case, the applicant sought to install a bulk fuel
transfer station in an RC-Resort/Commercial zoning district on a 3.3-acre tract of real
estate. Id. at 682. “The proposed use would include two underground 20,000-gallon
heating oil tanks, one above-ground 30,000-gallon propane tank, a truck-loading area
and a turn-around.” Id.




                                          4
               Because a bulk fuel transfer station was not permitted in any zoning
district, the case proceeded to the “savings provision” of the ordinance. Id. The
“savings provision” stated that when a use is not permitted in any district, the zoning
hearing board (ZHB), via application, may permit or deny the use as a special
exception. Id. The ZHB denied the applicant’s request because of the small size of
the parcel, traffic concerns, safety issues, and its close proximity to residences. Id. at
684-85, 690.


               The trial court reversed, determining that the ZHB could not regulate
setback and other safety issues by imposing different requirements than those set
forth in Act 61. Id. at 690. On appeal, this court affirmed. This court stated that
although a municipality may restrict the zoning district in which propane tanks are
located, section 15(b)(2) of Act 61, 35 P.S. §1329.15(b)(2), bars a municipality from
adopting laws that regulate the location of LPG containers. Id. at 691. This court
concluded that the safety of a bulk fuel transfer station is a matter for the
Commonwealth to regulate. Id.


               In this case, the trial court determined that propane storage is permitted
in the AR district and that Appellants attempted to regulate the storage tank’s location
by asserting a size restriction based on a determination that the tank would be
dangerous.6 The trial court also determined that Appellants introduced insufficient

       6
         The trial court noted that Deiter did not challenge the validity of the City Ordinance on the
basis that it effectively excludes bulk plants within the City, and thus this issue was not preserved
on appeal. Section 2 of Act 61 defines a “bulk plant” as “[a]n LPG storage facility, the primary
purpose of which is the distribution of LPG which has: (1) a bulk storage capacity of more than
2,000 gallons; and (2) container-filling or tank-loading facilities on the premises.” 35 P.S. §1329.2.



                                                  5
evidence that the storage tank presented a danger. Although Appellants presented
evidence regarding a variety of disasters, the evidence had nothing to do with propane
storage.7 Moreover, although the fire chief testified as to the City’s ability to respond
to a potential incident, his testimony did not establish the likelihood of an incident.
The trial court reversed the Board’s decision, and this appeal followed.8


              Initially, Appellants argue that contrary to the trial court’s determination,
City Ordinance §245-8G(11), which limits an LPG storage tank to 2,000 gallons, is
not preempted by Act 61.          Specifically, Appellants contend that Act 61 does not
regulate the capacity of a tank. Thus, City Ordinance §245-8G(11) does not conflict
in whole or in part with any provision of Act 61.


              We initially observe that “[w]hen examining an express preemption
clause, the task of statutory construction must in the first instance focus on the plain
wording of the express preemption clause, which necessarily contains the best
evidence of the legislature’s pre-emptive intent.” JoJo Oil, 77 A.3d at 690. Section
15 of Act 61 includes the following preemption clause:


              Preemption of municipal regulations.




       7
        Examples included the BP oil spill, the sinking of the Titanic, and the attack on the World
Trade Center.

       8
         Where, as here, the trial court does not take additional evidence, this court’s review is
limited to determining whether the Board committed an error of law or abused its discretion.
Residents Against Matrix v. Lower Makefield Township, 845 A.2d 908, 910 (Pa. Cmwlth. 2004).


                                                6
                   (a) Rights reserved by Commonwealth.-- The
            Commonwealth specifically reserves the sole right and
            ability to regulate any and all matters related to the
            operation of the Liquefied Petroleum Gas Industry in
            accordance with this act.

                  (b) Regulations not to conflict.-

                   (1)    No municipality or any other political
            subdivision shall adopt or enforce any ordinance or
            regulation which differs from or conflicts in whole or in
            part with the provisions of this act or with the regulations
            promulgated under this act with regard to permits,
            licensing standards, fees, construction, installation,
            maintenance, operation, inspection, location or placement
            of LPG containers or LPG facilities or any other matters
            related to this industry within this Commonwealth,
            provided, further, that a municipality may not prohibit
            placement of any LPG container in any existing yard
            setback area except to establish an absolute setback of ten
            feet from a residential property line.

                   (2) A municipality shall retain the right pursuant to
            local zoning ordinances to require any LPG facility to
            locate within approved residential, industrial, commercial or
            other zones and to require an LPG facility to obtain zoning
            permits, pay zoning fees and undergo inspections related to
            the zoning of the LPG facility. Any building at an LPG
            facility shall comply with the municipal standards applied
            to primary structures.

                   (3)   Except as provided in this subsection, a
            municipality may not prohibit or otherwise regulate the use
            or storage of LPG, including the location or replacement of
            storage tanks for LPG.

                  (c) Definitions.-As used in this section, “differs” or
            “conflicts” shall include, but not be limited to, regulation of
            any area not addressed in this statute.

35 P.S. §1329.15 (emphases added).


                                          7
             Further, the regulations specifically provide that although a municipality
may determine the district in which an LPG facility may located, 34 Pa. Code
§13.54(3), a “municipality may not prohibit placement of any LPG container in any
existing yard setback area except to establish an absolute setback of 10 feet.” 34 Pa.
Code §13.54(2) (emphasis added).


             Appellants contend that in JoJo Oil, this court acknowledged that Act 61
“specifically recognizes a municipality’s right to perform its traditional zoning
function to restrict the zone in which [a] bulk fuel transfer station may be located.”
77 A.3d at 691. Appellants claim that the City may also regulate tank capacity
because Act 61 does not do so.


             We agree with the trial court and Deiter that contrary to the prohibition
set forth in Act 61, the City is attempting to regulate the construction, installation,
and placement of the LPG tank. Specifically, although the City can zone where LPG
may be stored, it cannot regulate other matters, including the size of the tank installed
to hold the LPG.


             As stated in JoJo Oil, Act 61

             bars a municipality from adopting or enforcing any law
             which regulates the location of LPG containers, except a
             municipality shall retain the right to determine which
             zoning district would be most appropriate for such use.
             Undoubtedly, the Commonwealth specifically reserved to
             itself the sole right to regulate all matters related to the
             operation of the LPG industry, including the location of
             LPG facilities.

77 A.3d at 690 (emphases added).

                                             8
Thus, although Act 61 authorizes a municipality to regulate the location of an LPG
container, Act 61 authorizes the Commonwealth to regulate all other matters related
to the LPG industry, including container capacity. Act 61 preempts City Ordinance
§245-8G(11), and the City cannot prohibit Deiter from installing the proposed tank
on the Property.


                Appellants also rely on Northeastern Gas Company, Inc. v. Foster
Township Zoning Hearing Board, 613 A.2d 606 (Pa. Cmwlth. 1992), a case which
interpreted the language in the Act of December 27, 1951, P.L. 1793, as amended, 35
P.S. §§1321-1339 (Act 51), the predecessor to Act 61. Therein, this court observed
that Act 51 only prohibited local regulation that was “in conflict” with Act 51.
Northeastern, 613 A.2d at 608.


                Appellants’ reliance on Northeastern is misplaced because it was
decided under Act 51, not Act 61. Act 51 only prohibited municipal regulations that
conflicted with Act 51. Act 61 states that the Commonwealth shall regulate “all
matters”9 and forbids municipalities from regulating the “storage of LPG.”10 Act 51
did not contain this express language.


                Next, Appellants argue that the proposed storage tank is dangerous and
that the City is permitted to enact and enforce provisions to protect public safety.
Appellants contend that the 2,000-gallon limit, which was adopted from the


      9
          35 P.S. §1329.15(a).

      10
           35 P.S. §1329.15(b)(3).


                                            9
International Fire Code, protects citizens in heavily populated areas.         Such a
limitation is necessary so that emergency responders can adequately respond to a
disaster. Appellants introduced evidence of the potential for a fire, a BLEVE, and
terrorism. Further, Appellants assert that a leak would impact a significant area and
that the City would be incapable of evacuating the area and protecting the public.


            Appellants, however, did not introduce any evidence that a potential
incident was likely to occur.     As noted by the trial court, although Appellants
identified many disasters, none of those disasters involved the storage of propane.
The BLEVE occurred in Canada in 2008.           No evidence was presented of any
incidents involving a 30,000-gallon tank in the United States. In accordance with
JoJo Oil, a municipality is not permitted “to restrict location based on its
determination that such a facility is inherently dangerous.” 77 A.3d at 691. Although
Appellants argue that the storage tank is a safety issue, the legislature, through the
enactment of Act 61, has given the Commonwealth the authority to regulate all
matters concerning the storage of LPG.


            Accordingly, we affirm.



                                      ___________________________________
                                      ROCHELLE S. FRIEDMAN, Senior Judge




                                          10
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Deiter Family, L.P.                   :
                                      : No. 202 C.D. 2015
                  v.                  :
                                      :
City of Easton Building Code          :
Board of Appeals and City of          :
Easton and W.B. Moore, Inc.           :
                                      :
Appeal of: City of Easton and City    :
of Easton Building Code Board of      :
Appeals                               :




                                     ORDER


            AND NOW, this 9th day of November, 2015, we hereby affirm the
January 27, 2015, order of the Court of Common Pleas of Northampton County.


                                      ___________________________________
                                      ROCHELLE S. FRIEDMAN, Senior Judge
