Review of the Case as of October, 2021
Friday, November 26, 2021
In case you are wondering about PECO’s plans for a Gas Expansion Plant at the corner of Sproul and Cedar Grove Roads, here’s an update. It’s a legal issue, and it’s complicated. In the big picture, PECO asked the Marple Zoning Hearing Board (MZHB) for a Special Exception to get around a Zoning problem with their plans in August of 2020. In November of 2020, The MZHB denied PECO’s request, and then PECO began a two pronged attack on the decision of the MZHB. First, PECO went to the Pennsylvania Public Utility Commission. Second, PECO went to the Delaware County Court of Common Pleas. If PECO wins in either of these cases, that is a big problem for Marple Township; we need to win in BOTH courts.
The PUC process was the first to start moving, and it also the first to close. PECO first filed their petition on February 26, 2021, and requested that the PUC rule that the project “is reasonably necessary for the convenience and welfare of the public and, therefore, exempt from the Marple Township Zoning Code”. The Telephonic Public Input Hearings were on May 25 & 26, the Evidentiary Hearings were held in late July, and, on October 4, 2021, the official record in the case was closed. There is nothing else to be done except wait for the Judges (Emily DeVoe and Mary Long) to issue their Recommended Decision. After that, their decision will be forwarded to the full five member (currently three member) Commission, which may agree or disagree, in whole or in part, with the Recommended Decision. That will be the Final Decision of the PA PUC. It is expected that, if possible, the loser of that decision will appeal the decision to the Commonwealth Court, which is the next highest court in cases such as this.
The case in Delaware County Court of Common Pleas began on December 18, 2020 when, “PECO respectfully requests that the Honorable Court reverse the decision of the Zoning Board and grant to PECO a special exception…”. As a part of PECO’s plea, they state, “#18 – By its decision, the Zoning Board erred in its application of governing law, violated PECO’s constitutional rights, and abused its discretion because its findings were not based on any substantial or credible evidence presented at the hearing.” I just don’t understand how PECO can claim a constitutional right to a Special Exception. And then… On August 27th, Judge John Whelan remanded (sent back) the case to the Marple Zoning Hearing Board, to “supplement the record and introduce evidence” that will then be submitted to the DelCo Court. This hearing at the MZHB was to occur on November 4th, at 7PM, in the Marple Administration Building. However, on October 25th, PECO filed petitions with the PA Commonwealth Court to overrule Judge Whelan’s remand, thereby preventing the November 4th hearing.
So, where does that leave us? At the PUC, it’s just “wait and see” what the Recommended Decision is. In the DelCo Court, it will take several weeks for the Commonwealth Court to determine if there will be another hearing at the Marple Zoning Hearing Board. After that decision by the Commonwealth Court, the case should return to Delaware County, and maybe back to the MZHB again… And of course, it is expected that the loser in either of these cases will appeal to the next higher court, which is, again, the Commonwealth Court.