          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Andover Homeowners’ :
Association, Inc. of the Sunoco Pipeline :
L.P. Zoning, Building and Electrical     :
Permit Approval by the Zoning Hearing :
Board of Thornbury Township,             :
Delaware County                          :
                                         :   No. 1214 C.D. 2018
Appeal of: Andover Homeowners’           :   Argued: June 3, 2019
Association, Inc.                        :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                FILED: August 26, 2019

             Andover Homeowners’ Association, Inc. (Association) appeals two
orders issued by the Court of Common Pleas of Delaware County (trial court) that
affirmed the decisions of the Zoning Hearing Board of Thornbury Township (Zoning
Board) to grant permits to Sunoco Logistics and Sunoco Pipeline, L.P. (collectively,
Sunoco) to allow construction of the Mariner East 2 Pipeline project in Thornbury
Township. Upon review of the Association’s contentions, we affirm.
                                   Background
             The Association owns a common area in a planned community known
as the Andover Community, which is located at 190 Middletown Road in Thornbury
Township’s R-1 Residential District. The community’s developer set aside this
common area to comply with a provision in the Township Zoning Ordinance1 that
required 40 percent of a cluster development to be maintained as open space. In


1
 THORNBURY TOWNSHIP MUNICIPAL CODE, Chapter 27, as amended, added by Ordinance No. 2-
1976, February 3, 1976.
1963 and 1990, the Association’s predecessor in interest granted easements to
Sunoco for the location of two pipelines across what is now the common area.
Neither the easement document nor the property subdivision plan contains a metes
and bounds description of the location of the pipelines.
              On May 18, 2016, Sunoco filed a declaration of taking to condemn land
for (1) a 2.2-acre permanent pipeline easement, (2) a 1.09-acre temporary workspace
easement, (3) a 0.23-acre additional temporary workspace easement, (4) a 0.06-acre
permanent access road, (5) a 0.72-acre permanent block valve easement, and (6) a
0.08-acre fenced-in site over the property for purposes of constructing, operating,
and maintaining two pipelines for the Mariner East 2 Pipeline project.                    The
Association filed preliminary objections to the declaration, which the trial court
overruled on September 26, 2016. This Court affirmed the trial court’s decision in
In re Condemnation by Sunoco Pipeline L.P. (Pa. Cmwlth., No. 1780 C.D. 2016,
filed October 24, 2017) (unreported).
                     A. Zoning, Building and Electrical Permits
              In February 2017, Sunoco applied to the Township for zoning, building,
and electrical permits for the installation of a five-foot-high fence, utility pole, and
automated pipeline monitor equipment, all in the Andover Community’s common
area. The Township issued the permits. The Association appealed to the Zoning
Board arguing, inter alia, that Sunoco’s work was being performed outside Sunoco’s
easement.2 The Zoning Board consolidated the appeals.




2
 The Association also argued that the Township’s grant of the permits and Sunoco’s construction
under those permits would cause the Association to violate the Zoning Ordinance by reducing the
open space in the Andover Community below the minimum required amount. This is not an issue
before this Court.
                                              2
            At the hearing on May 1, 2017, the Township manager and zoning
officer, Jeffrey Seagraves, testified that he issued the zoning permit with the
condition that the easement “be marked by a licensed surveyor” for purposes of
“mak[ing] sure that the fence and the work that [Sunoco was] proposing was within
that existing easement.” Notes of Testimony, 5/1/2017, at 10 (N.T.__); Reproduced
Record at 265a (R.R. __). A copy of the zoning permit, which was admitted into the
record, stated that the “boundary of the existing easement must be verified prior to
the installation of new fence.” R.R. 15a. The Township also presented photographs
showing that Sunoco staked out the easement area where the proposed construction
was to occur.    Seagraves testified that he inspected the area and took these
photographs.
            Seagraves testified that he supervised the review of the building and
electrical permits. The Township’s building code officer inspected the area where
the well monitoring equipment was to be placed, including the posts and footers
supporting the equipment, and determined that the footers were in the proper
position. Inspectors with “electrical qualifications” issued the electrical permit.
N.T. 15; R.R. 270a.
            On cross-examination, Seagraves admitted that the zoning permit was
not based upon “as-built drawings [demonstrating] where the actual work was done
and the scale [to] be used”; nor was there a “land surveyor stamp” confirming that
Sunoco’s proposed construction would take place within the existing easement. N.T.
18; R.R. 273a. As to the electrical permit, Seagraves believed that the utility pole
would be installed “within the right of way,” but he was unsure about the wire. N.T.
25; R.R. 280a. Nevertheless, Seagraves explained to the Board:

            [Board]: When [Sunoco] made the application, was the plan
            included in the application?
                                         3
             [Seagraves]: There have been multiple plans that have come
             through … so I wanted to make sure we had clarification that this
             was in fact on the existing easement. It dates back to 1963. And
             then the valve contract from between [the Association’s
             predecessor in interest] and Sunoco, it was done in 1990. If it’s
             10 feet – basically the easement states … that it’s 10 feet off of a
             pipeline.
             [Board]: On both sides?

             [Seagraves]: Well, there’s two pipes. So it’s – and – the only
             place where I know where the pipes are is where they come out
             of the ground, and that’s at the valve station. And that’s what I
             wanted to be ensured of, that they were within that.

N.T. 31-32; R.R. 286a-87a (emphasis added).
             The Association presented the testimony of John Mullin, a licensed
professional engineer, who had prepared the subdivision plan for the Andover
Community. Mullin testified that the existing pipelines “were approximately 23 feet
wide,” and “run from one side to the other side.” N.T. 36; R.R. 291a. Mullin agreed
that the easement extended 10 feet “off of the existing pipes.” Id. When the Andover
Community was subdivided, Sunoco “marked out the plans[,] located [the pipes],”
and determined their width. Id. As to Sunoco’s proposed construction under the
permits, Mullin testified:

             [Counsel]: Did you see the fence was in the easement?
             [Mullin]: I had a surveyor go out and locate the fence and, you
             know, prepare a plan showing the – where the fence was in
             relationship to the existing easement. Based on that plan, it
             looked like it was maybe a couple feet off of where the easement
             is shown on the subdivision plan.

                                              ***
             [Counsel]: Where do you understand the [utility] pole to be in
             relation to the easement?
                                          4
             [Mullin]: It looked like that was outside of the easement.

             [Counsel]: And what do you understand about how the electrical
             line between the [utility] pole and the electrical panel was located
             with regard to the easement?

             [Mullin]: Part of it would have been outside the easement, part
             of it inside the existing easement.

N.T. 39-40; R.R. 294a-95a.
             On cross-examination, Mullin acknowledged that neither the
subdivision plan nor the recorded easement contained a metes and bounds
description. He acknowledged the best way to locate the pipes is “to go look at
them” at the valve station, as Seagraves did:

             [Counsel]: So rather than comparing the fence to a subdivision
             plan, you could have looked at where the pipes were and took a
             tape measure and measured it to see whether or not those – that
             new fence was going to be within the existing easement.
             Wouldn’t you agree with that?

             [Mullin]: Yes.

N.T. 48-49; R.R. 303a-04a. Mullin further testified about his knowledge of the
easement:

             [Board]: Are you familiar with the easement? Like did you read
             the easement when you did the [subdivision] plan to set the
             boundaries on the plan?
             [Mullin]: I had a surveyor set the boundaries on the plan.

             [Board]: Is the easement like most easements, that it’s an
             easement from the center line of the pipe out?

             [Mullin]: Yes.



                                          5
            [Board]: Is this how it works? So did you dig up the pipe to
            accurately locate it so you know exactly where it was when you
            did the plan?

            [Mullin]: No…. Sunoco had located it and it was placed on the
            [subdivision plan].

N.T. 54-55; R.R. 309a-10a.
            Eric Friedman, the president of the Association, testified that the utility
pole and fence appeared to be outside the easement. He stated:

            [Counsel]: How did you base that conclusion?

            [Friedman]: [T]o be frank, I don’t know for sure. But I don’t
            think the approver [of] the permit, knew for sure either. My
            judgment is based on where the fence was before, and a
            comparison to the width of the easement as it was used to
            calculate that 40 percent in Andover [Community].

N.T. 56-57; R.R. 311a-12a.
            The Zoning Board denied the Association’s appeals and found that
Sunoco’s work was being done within its easement. Sunoco had staked out the
proposed work area, as was confirmed by the Township’s photographs. The Zoning
Board discredited Mullin’s testimony, finding it “equivocal” and not offered within
“a reasonable degree of engineering certainty.” Board Decision, 6/5/2017, at 10;
R.R. 32a. The Zoning Board held that the Association failed to meet its burden to
show that the zoning, building and electrical permits had been improperly granted.
                                B. Grading Permit
            On June 21, 2017, the Township issued Sunoco a permit to grade its
easement with the following ten conditions:

            1. Sound [p]rotection through the use of sound barriers, sound
            curtains, or the like, shall be provided for nearby residences and
            businesses. Such sound protection shall also be provided to
                                          6
residences that will lose sound buffering to [State Route (SR)]
352 traffic during the absence of their existing landscape buffer
berms.

2. Restoration of the Andover landscaping berm along SR 352
shall be required in accordance with the approved Andover
Landscaping Plan, with alternate tree species, only as approved
by the Township. The [Association] has requested coordination
in the landscaping placement and species types, particularly in
the area of the new Block Valve Site. An appropriate security,
escrow, or bond agreement shall be put into place with the
Township to guarantee replacement of the Andover Landscaping
Berm, subject to approval of the Township Solicitor.

3. Protection of nearby Septic Systems and Wells, during and
after construction including pre & post testing shall be required,
as applicable by local, state and federal regulations.

4. Protection of nearby residences and businesses from
construction lighting shall be required.

5. Sunoco shall be required to follow PA [Department of
Environmental Protection (DEP)] permit requirements when
handling contaminated soils as noted in [Erosion and
Sedimentation (E&S)] Permit No ESG 01 000 15 001.
6. It shall be unlawful for any person, copartnership, firm or
corporation to construct, build, renovate or perform any type of
construction activity which emits any light, sound or noise
whatsoever, excepting in an emergency situation, between the
hours of 9:00 p.m. and 7:00 a.m., Monday [t]hrough Saturday,
prevailing time. No work is permitted on Sundays. Any
exception to the above referenced working hours shall require
prior written approval by the Township.

7. A Stormwater Management O&M Agreement shall be
executed for the maintenance of the newly proposed stormwater
facilities prior to start of construction.

8. A copy of Sunoco’s Approved PPC (Pollution Prevention
Control) Plan, as required in E&S Permit No ESG 01 000 15 001,
shall be provided for Township records. Notice of any
                             7
              unforeseen problems encountered during construction should be
              sent to the Township in addition to the governing authority.

              9. All applicable permits, including third party permits, from
              local, state, and federal agencies shall be submitted to the
              Township for their records prior to start of work.
              10. Sunoco shall provide any necessary training, and facilitate
              any necessary clearances, which may be required to allow access
              into the proposed work zone for Township related inspections.

R.R. 21a (emphasis added).
              The Association appealed the grading permit, arguing that it violated a
100-meter setback requirement set forth in Section 1511(b)(1)(i) of the Business
Corporation Law of 1988 (Business Corporation Law),3 15 Pa. C.S. §1511(b)(1)(i).4
The Zoning Board held hearings on October 2, October 16, and November 6, 2017.
During the hearings, the Association further claimed that the Township had failed to
consider the prior use of the property as an apple orchard, which resulted in the
presence of arsenic in the soil. Thus, the Township’s grading permit also violated
the Township’s trusteeship duties under Article I, Section 27 of the Pennsylvania
Constitution (the Environmental Rights Amendment) to protect the environmental,
natural and historic resources of the Commonwealth. PA. CONST. art. I, §27.
              The Township presented the testimony of Michael Ciocco, an engineer,
who recommended the issuance of the grading permit with its conditions. Ciocco


3
  15 Pa. C.S. §§1101-4162.
4
  The Association also argued that the Township’s grant of the grading permit and Sunoco’s
construction under the permit would cause the Association to violate the Zoning Ordinance by
reducing the open space in the Andover Community below the minimum required amount. The
Association further argued that the grading permit violated Section 22-605 of the Township
Subdivision and Land Development Ordinance, which prohibits construction of a pipeline within
75 feet of a building. THORNBURY TOWNSHIP MUNICIPAL CODE, Chapter 22, as amended, added
by Ordinance No. 2-2000, April 5, 2000. These are not issues before this Court.
                                             8
testified that, in reviewing Sunoco’s grading permit, he considered the use of the
property as an orchard and conferred with the conservation district, which “works
hand in hand” with DEP “mostly [in] erosion controls,” such as “dust and mud
leaving the site and displacement of sediment[.]” N.T., 10/2/2017, at 40; R.R. 405b.
DEP issued Sunoco an E&S permit in advance of the grading permit;5 thus, Ciocco
did not review the reports that DEP considered. When the Andover Community
was developed, DEP required dilution of the arsenic levels by “blend[ing] the soil to
certain depths below the ground surface” before allowing it to be developed for
residential use. N.T. 15; R.R. 380b. The Township was not involved in DEP’s
remediation plan. Ciocco testified he also reviewed the Township Soil Erosion,
Sedimentation and Grading Control Ordinance (Grading Ordinance)6 and the
Township Stormwater Management Ordinance.7 He deferred to the Township
zoning officer on any zoning issues.
             Mullin, the Association’s expert witness, testified that Sunoco’s
placement of the pipeline would violate the requirement that utility lines be placed
100 meters from a house or its curtilage. 15 Pa. C.S. §1511(b)(1)(i). He further
testified that disturbing the soil in the easement area would cause environmental
degradation. In support, the Association offered into evidence a 2005 report that


5
   The E&S permit is published on the DEP website, DEPARTMENT OF ENVIRONMENTAL
PROTECTION, PENNSYLVANIA PIPELINE PORTAL, MARINER EAST II, Approved Chapter 105, Water
Obstruction and Encroachment Permits and Chapter 102, Erosion and Sediment Control (E&S)
Permits,         ESG0100015001-Counties:               Delaware          and     Chester,
https://www.dep.pa.gov/Business/ProgramIntegration/Pennsylvania-Pipeline-
Portal/Pages/Mariner-East-II.aspx#Approved (last visited August 23, 2019).
6
  THORNBURY TOWNSHIP MUNICIPAL CODE, Chapter 9, as amended, added by Ordinance No. 1-
1975, February 24, 1975.
7
  THORNBURY TOWNSHIP MUNICIPAL CODE, Chapter 19, as amended, added by Ordinance No. 1-
2012, September 19, 2012.
                                           9
indicated the presence of arsenic in the soil. Mullin stated that the developer
remediated the soil where the Andover Community homes were built but not,
apparently, where Sunoco’s easement lies. On cross-examination, Mullin agreed
that soils within the easement were “scraped off and placed in an area outside the
pipeline easement so they could be blended.” N.T. 21; R.R. 521b.
             The Zoning Board denied the Association’s appeal of the grading
permit issued to Sunoco. The Zoning Board concluded that the construction of the
pipeline will take place within 100 meters of the curtilage of several residences, but
this did not present a zoning issue. Rather, it presented an eminent domain issue.
Thus, the Zoning Board rejected The Association’s claim that the grant of the
grading permit would violate Section 1511(b)(1)(i) of the Business Corporation
Law.
             Finally, the Zoning Board held that the Township did not violate the
Environmental Rights Amendment, which protects public natural resources. The
land at issue is privately owned, which distinguished this case from Pennsylvania
Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017), on
which the Association relied. However, even assuming the Environmental Rights
Amendment was applicable, the Zoning Board concluded that the Township fulfilled
its duties as trustee by placing conditions on the grading permit. The Association
appealed to the trial court.
                               II. Trial Court Decision
             In two orders issued on August 14, 2018, the trial court affirmed the
Zoning Board’s decisions to issue the zoning, building, and electrical permits and
the grading permit to Sunoco. The trial court did so without taking additional
evidence.


                                         10
              In its opinion filed pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), the trial court held that the issues raised by the Association in
the instant appeal were barred by collateral estoppel because they had been
previously litigated in the eminent domain proceeding, in which this Court affirmed
the trial court’s decision to overrule the Association’s preliminary objections. In re
Condemnation by Sunoco Pipeline L.P. (Pa. Cmwlth., No. 1780 C.D. 2016, filed
October 24, 2017). The trial court affirmed the Zoning Board’s holding that the
Township did not violate its trusteeship duties under the Environmental Rights
Amendment.
                                         III. Appeal
              On appeal,8 the Association argues that the Zoning Board erred in
rejecting its appeals and raises three issues for our consideration. First, it argues that
the Zoning Board erred because the Township violated its duties as a trustee under
the Environmental Rights Amendment in issuing the grading permit. Second, it
argues that the Zoning Board erred because the grading permit violated Section
1511(b)(1)(i) of the Business Corporation Law. Finally, it argues that the Zoning
Board erred in upholding the zoning, building and electrical permits because Sunoco
did not prove that its proposed construction work was being performed within the
easement area. We address these issues seriatim.




8
  Where the trial court does not accept additional evidence, our review determines whether the
zoning board committed an error of law or “a manifest abuse of discretion.” Valley View Civic
Association v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa. 1983). A zoning board abuses
its discretion “only if its findings are not supported by substantial evidence.” Id. at 640.
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
                                              11
                                             Analysis
                          A. Environmental Rights Amendment
               The Association argues that the Township violated its duties as a trustee
under the Environmental Rights Amendment in issuing the grading permit in spite
of the arsenic contamination on the property. The Township improperly relied upon
DEP and its permitting process, which did not address the contamination. The
Township failed to protect the community from this known harm and failed to
protect “historic resources,” i.e., a house that could be damaged by Sunoco’s project.
Association Brief at 22. The Association further contends that it is not collaterally
estopped from pursuing this claim9 because the law in this area was changed
dramatically by the Supreme Court’s ruling in Pennsylvania Environmental Defense
Foundation, 161 A.3d 911.
               The Zoning Board and Sunoco counter that the Township has no duty
to preserve and protect private land under the Environmental Rights Amendment.10
In any event, the record demonstrates that the Township fulfilled its duties as a
trustee by considering the environmental issues when it reviewed the grading permit
application.     The Association offered no evidence that Sunoco’s construction


9
   In its appeal of the trial court’s decision overruling its preliminary objections to Sunoco’s
declaration of taking, the Association asserted that no entity was serving as trustee of the
Commonwealth’s natural resources with respect to the Mariner East 2 Pipeline project. This Court,
in affirming the trial court, held that the issue had been waived because the Association did not
raise it in its preliminary objections before the trial court. In re Condemnation by Sunoco Pipeline
L.P., slip op. at 16.
10
    Alternatively, the Zoning Board and Sunoco argue that the Association did not include the
constitutional claim in its notice of appeal to the Zoning Board, and thus, the issue has been waived.
A review of the record shows that counsel for the Association raised the constitutional issue for
the first time at the May 1, 2017, Zoning Board hearing, to which counsel for Sunoco objected
based on “relevance.” N.T., 5/1/2017, at 42; R.R. 297a. Because the Zoning Board addressed the
Association’s constitutional challenge in its decision, we will consider the issue.
                                                 12
activities will cause environmental contamination. The Association could have
appealed DEP’s issuance of the E&S permit but did not.

            The Environmental Rights Amendment states as follows:

            The people have a right to clean air, pure water, and to the
            preservation of the natural, scenic, historic and esthetic values of
            the environment. Pennsylvania’s public natural resources are the
            common property of all the people, including generations yet to
            come. As trustee of these resources, the Commonwealth shall
            conserve and maintain them for the benefit of all the people.

PA. CONST. art. I, §27. In Pennsylvania Environmental Defense Foundation, our
Supreme Court explained the scope of the Environmental Rights Amendment:

            [The Environmental Rights Amendment] grants two separate
            rights to the people of this Commonwealth. The first right is
            contained in the first sentence, which is a prohibitory clause
            declaring the right of citizens to clean air and pure water, and to
            the preservation of natural, scenic, historic and esthetic values of
            the environment. This clause places a limitation on the state’s
            power to act contrary to this right, and while the subject of this
            right may be amenable to regulation, any laws that unreasonably
            impair the right are unconstitutional.

            The second right reserved by Section 27, set forth in its second
            sentence, is the common ownership by the people, including
            future generations, of Pennsylvania’s public natural resources.
                                       ***

            The third clause of Section 27 establishes a public trust, pursuant
            to which the natural resources are the corpus of the trust, the
            Commonwealth is the trustee, and the people are the named
            beneficiaries.

Pennsylvania Environmental Defense Foundation, 161 A.3d at 931-32 (citations and
footnote omitted) (emphasis added). The trustee’s obligations under Article I,

                                         13
Section 27 “are not vested exclusively in any single branch of Pennsylvania
government, and instead all agencies and entities of the Commonwealth government,
both statewide and local, have a fiduciary duty to act toward the corpus with
prudence, loyalty, and impartiality.” Id. at 931 n.23 (citing Robinson Township,
Washington County v. Commonwealth, 83 A.3d 901, 956-57 (Pa. 2013)) (emphasis
added).
             The Zoning Board held that the Andover Community common area is
not part of the “corpus of public trust” because it is privately owned. This Court has
held that Article I, Section 27 covers

             not only state-owned lands, waterways, and mineral reserves, but
             also resources that implicate the public interest, such as ambient
             air, surface and ground water, wild flora, and fauna (including
             fish) that are outside the scope of purely private property.

Marcellus Shale Coalition v. Department of Environmental Protection, 193 A.3d
447, 470 (Pa. Cmwlth. 2018) (quoting Robinson Township, 83 A.3d at 955)
(emphasis added). Stated otherwise, “[t]he concept of public natural resources [is]
flexible to capture the full array of resources implicating the public interest, as these
may be defined by statute or at common law.” Id. at 470 (quoting Robinson
Township, 83 A.3d at 955).          Here, the Association contends that Sunoco’s
construction activities will disturb the contaminated soils, which will be “discharged
into stormwater” and “ambient air.” Association Brief at 14. “Clean air” and “pure
water” are among the values expressly addressed in the first clause of the
Environmental Rights Amendment. PA. CONST. art. I, §27.
             However, the Association offered no evidence to support its claim that
there will be degradation of these natural resources. The 2005 site investigation
report indicated arsenic contamination on the property, but it is undisputed that the

                                           14
soil was remediated at the direction of DEP.        Mullin acknowledged that the
contaminated soils within the easement area were “scraped off and placed in an area
outside the pipeline easement so they could be blended.” N.T., 10/16/2017, at 21;
R.R. 521b. Simply, Mullin’s testimony that contaminated soil remained in the
easement was not consistent. The Zoning Board did not err in rejecting Mullin’s
testimony. Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677,
690 (Pa. Cmwlth. 2018) (“Testimony that merely speculates on possible harm lacks
probative value.”).
             In any event, we conclude that the Township has fulfilled its obligations
under the Environmental Rights Amendment. The Township placed ten conditions
on the grading permit, one of which required Sunoco to “follow [DEP] permit
requirements when handling contaminated soils as noted in [the E&S] Permit[.]”
R.R. 21a. The Association argues that this is not enough; the Township must also
take affirmative steps to protect the public from potential arsenic contamination.
Association Brief at 21.
             This Court considered, and rejected, a similar argument in Frederick,
196 A.3d 677. There, the township’s zoning ordinance permitted oil and gas
development in all zoning districts so long as certain health, safety and welfare
standards were met. The zoning ordinance also required operators to satisfy all state
and federal permitting requirements. The township issued a “zoning compliance
permit” to a gas company to develop an unconventional gas well on property zoned
for agricultural and residential uses. Objectors, owners of nearby property, appealed
to the zoning board and asserted, inter alia, that the township violated the
Environmental Rights Amendment. The zoning board denied the objectors’ appeal,
and the trial court affirmed.


                                         15
             On further appeal, this Court affirmed the trial court. In rejecting the
objectors’ Article I, Section 27 challenge, we stated that “the first clause of Section
27 does not impose express duties on the political branches to enact specific
affirmative measures to promote clean air, pure water, and the preservation of the
different values of our environment.” Frederick, 196 A.3d at 694 (quoting Robinson
Township, 83 A.3d at 951). In other words, Article I, Section 27 does

             not give municipalities the power to act beyond the bounds of
             their enabling legislation. Municipalities lack the power to
             replicate the environmental oversight that the General Assembly
             has conferred upon DEP and other state agencies. Neither
             Environmental Defense Foundation [] nor Robinson Township []
             has altered these fundamental principles of Pennsylvania’s
             system of state and local governance.

Frederick, 196 A.3d at 697. When the government acts, “it must reasonably account
for the environmental features of the affected locale.” Id. at 695. When an objector
challenges a governmental action, it must demonstrate, with evidence, that the
government acted in derogation of this duty. Because no such evidence was
presented in Frederick, this Court held that the objectors failed to prove that the
township unreasonably impaired their rights under the Environmental Rights
Amendment.
             In the case sub judice, the Township conditioned the grading permit on
Sunoco’s compliance with the DEP requirements “as noted in [the E&S] Permit[.]”
R.R. 21a.    The E&S permit required, inter alia, that Sunoco implement a
preparedness, prevention, and contingency plan for toxic or hazardous materials on
site. The permit also provided that Sunoco must implement such plans “at any
location of the project site where it knows or has reason to believe that soils are or
may be contaminated due to past land uses or receipt of written notification from

                                          16
DEP.”11 The Township engineer, Ciocco, testified that when reviewing the grading
permit, he considered the prior use of the property as an orchard and spoke with the
conservation district. He further testified that DEP had tested the soil at the property
and determined that it was safe for residential development. The Zoning Board
found Ciocco’s testimony both credible and persuasive.
               In sum, the record establishes that the Township “reasonably
account[ed] for the environmental features” of the property and, thus, satisfied its
obligations under the Environmental Rights Amendment. Frederick, 196 A.3d at
694. The Association’s concerns about the potential for environmental harm caused
by Sunoco’s construction activities should have been addressed to DEP when it
issued Sunoco the E&S permit.12
               The Association also raises an Article I, Section 27 challenge with
respect to “historic resources” on the property. The Zoning Board and Sunoco argue
that this issue was not raised before the Zoning Board, but the Association contends
that it was and, in support, cites to the October 2, 2017, hearing transcript.
Association Brief at 22. The cited transcript contains testimony from Andover


11
   E&S Permit (No. ESG 01 000 15 001) at 16, Part C-XIII. DEPARTMENT OF ENVIRONMENTAL
PROTECTION, PENNSYLVANIA PIPELINE PORTAL, MARINER EAST II, Approved Chapter 105, Water
Obstruction and Encroachment Permits and Chapter 102, Erosion and Sediment Control (E&S)
Permits,         ESG0100015001-Counties:              Delaware           and     Chester,
https://www.dep.pa.gov/Business/ProgramIntegration/Pennsylvania-Pipeline-
Portal/Pages/Mariner-East-II.aspx#Approved (last visited August 23, 2019).
12
  The DEP’s approval letter of February 13, 2017, as attached to the E&S permit, stated that “[a]ny
person aggrieved by this action may appeal … to the Environmental Hearing Board.” E&S permit
approval letter, 2/13/2017, at 2; DEPARTMENT OF ENVIRONMENTAL PROTECTION, PENNSYLVANIA
PIPELINE PORTAL, MARINER EAST II, Approved Chapter 105, Water Obstruction and
Encroachment Permits and Chapter 102, Erosion and Sediment Control (E&S) Permits,
ESG0100015001-Counties:                    Delaware                   and                 Chester,
https://www.dep.pa.gov/Business/ProgramIntegration/Pennsylvania-Pipeline-
Portal/Pages/Mariner-East-II.aspx#Approved (last visited August 23, 2019).
                                               17
Community residents complaining about the impact of Sunoco’s construction
activities on their houses and one statement that two buildings in the Andover
Community are historic.          This testimony was too conclusory to preserve the
constitutional issue, and the Association did not cite the Environmental Rights
Amendment in its argument to the Zoning Board. We hold that the Association’s
constitutional claim with respect to the alleged historic resources has been waived.
                               B. Business Corporation Law
                The Association argues that the Township’s grant of the grading permit
violated the Business Corporation Law, 15 Pa. C.S. §1511(b)(1)(i), which relates to
a public utility’s eminent domain authority. The Association contends that the
Public Utility Code13 does not preempt the Business Corporation Law, and no public
authority has reviewed the pipeline siting for the project at issue. The Zoning Board
and Sunoco counter that the Association should have raised its challenge to the
location of the pipeline in the eminent domain proceedings and it is too late to do so
in this appeal.
                Section 1511 of the Business Corporation Law states, in relevant part,
as follows:

                (a) General rule.--A public utility corporation shall, in addition
                to any other power of eminent domain conferred by any other
                statute, have the right to take, occupy and condemn property for
                one or more of the following principal purposes and ancillary
                purposes reasonably necessary or appropriate for the
                accomplishment of the principal purposes:

                                           ***
                       (2) The transportation of artificial or natural gas,
                       electricity, petroleum or petroleum products or

13
     66 Pa. C.S. §§101-3316.
                                            18
                   water or any combination of such substances for the
                   public.

                   (3) The production, generation, manufacture,
                   transmission, storage, distribution or furnishing of
                   natural or artificial gas, electricity, steam, air
                   conditioning or refrigerating service or any
                   combination thereof to or for the public.
                                          ***

            (b) Restrictions.--The powers conferred by subsection (a)
            shall not be exercised:

                   (1) To condemn for the purpose of constructing
                   any street railway, trackless-trolley omnibus,
                   petroleum or petroleum products transportation or
                   aerial electric transmission, aerial telephone or
                   aerial telegraph lines:

                         (i) Any dwelling house or, except in
                         the case of any condemnation for
                         petroleum or petroleum products
                         transportation lines, any part of the
                         reasonable curtilage of a dwelling
                         house within 100 meters therefrom and
                         not within the limits of any street,
                         highway, water or other public way or
                         place.

15 Pa. C.S. §1511 (emphasis added). Section 1511(a) authorizes a public utility to
implement its power of eminent domain and regulates the exercise of that power.
The Association asserts that Sunoco’s pipeline siting violated the 100-meter setback
required by Section 1511(b)(1)(i). This presents a challenge to Sunoco’s exercise of
its eminent domain power and, as such, was required to be raised in the
condemnation proceeding. Even so, the grading permit did not determine the



                                        19
location of the pipeline. We affirm the Zoning Board’s holding that it lacked
jurisdiction over the Section 1511(a) issue.

                                 C. Right-of-Way
             The Association contends that the Zoning Board erred by upholding the
grant of the zoning, building, and electrical permits because Sunoco failed to show
that the construction work will be performed within its right-of-way. The Zoning
Board and Sunoco counter that the Zoning Board’s findings were supported by
substantial evidence. Seagraves testified to the site inspection he performed and his
determination that Sunoco’s construction work was being performed within the
easement area.
             This Court may not substitute its interpretation of the evidence for that
of the Zoning Board. Taliaferro v. Darby Township Zoning Hearing Board, 873
A.2d 807, 811 (Pa. Cmwlth. 2005). “It is the function of the Zoning Board to weigh
the evidence before it.” Id. The Zoning Board is “the sole judge of the credibility
of witnesses and the weight afforded their testimony.” Id. The Zoning Board is free
to reject “even uncontradicted testimony it finds lacking in credibility, including
testimony offered by an expert witness.” Id. We are bound by the Zoning Board’s
findings “that result from resolutions of credibility and conflicting testimony.” Id.
             Seagraves testified that he requested Sunoco to stake out the proposed
work area, and he performed a site inspection to ensure that this was done. Seagraves
testified that he went to the valve station, where the pipes “come out of the ground,”
to ensure the proposed construction “was in fact on the existing easement.” N.T.,
5/1/2017, at 32; R.R. 287a. Mullin opined that the fence “looked like [] maybe a
couple feet off of where the easement [was].” N.T. 39; R.R. 294a. However, he
acknowledged that because there was no metes and bounds description of the

                                         20
easement in any of the relevant documents, the best way to locate the pipes was “to
go look at them” at the valve station. N.T. 48; R.R. 303a. Seagraves testified that
he did just that, and the Zoning Board credited his testimony to find that Sunoco’s
proposed construction was being done within the easement area. By contrast, the
Zoning Board found Mullin’s testimony “equivocal” and not offered “to a
reasonable degree of engineering certainty.” Board Decision, 6/5/2017, at 10; R.R.
32a. The Zoning Board’s findings are fully supported by substantial evidence and
cannot be disturbed. Taliaferro, 873 A.2d at 811.
                                  IV. Conclusion
             Because the Association offered no evidence to support its contention
that Sunoco’s construction activities will have an adverse environmental impact or
that the Township acted unreasonably in issuing the grading permit to Sunoco, we
reject its claim under the Environmental Rights Amendment. The Association’s
contention that the Township violated Section 1511(b) of the Business Corporation
Law should have been brought in the condemnation proceeding before the trial court.
Finally, the Zoning Board’s finding that Sunoco’s proposed construction was being
performed within the easement area is supported by substantial evidence and may
not be disturbed. For these reasons, we affirm the trial court’s August 14, 2018,
orders.


                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge

Judge Fizzano Cannon did not participate in the decision in this case.




                                         21
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Andover Homeowners’ :
Association, Inc. of the Sunoco Pipeline :
L.P. Zoning, Building and Electrical     :
Permit Approval by the Zoning Hearing :
Board of Thornbury Township,             :
Delaware County                          :
                                         :   No. 1214 C.D. 2018
Appeal of: Andover Homeowners’           :
Association, Inc.                        :

                                    ORDER

            AND NOW, this 26th day of August, 2019, the orders of the Court of
Common Pleas of Delaware County dated August 14, 2018, in the above-captioned
matter, are AFFIRMED.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge
