Pa. Power Co. v. Twp. of Pine,
2007 Pa. Commw. LEXIS 318 (Pa. Cmwlth. 2007)
A municipality does not have the power to compel the underground installation of electric utilities.
Township entered into agreement with a developer that all electric utility lines to service a new development in the township must be installed underground. In order to provide electricity to the development, power company proposed to install five wooden poles for overhead electric lines on a public road right-of-way near the development. Power company asserted underground installation was overly costly and otherwise “impracticable.” Township rejected power company’s permit application as it was inconsistent with the agreement.
Trial court concluded that township had the authority to require underground installation, holding that the requirement was consistent with Public Utility Commission (PUC) regulations requiring underground installation to developments “if practicable”; power company failed to show “impracticability” under a particular section of the Public Utility Code.
On appeal, the Commonwealth Court vacated the trial court’s order and transferred the case to the PUC to determine the issue of “practicability.” The Court noted that the determination of the “practicability” of underground installation must be made by the PUC, as it is the PUC that has the authority and expertise to adjudicate the complex and technical questions associated with the location and construction of public utility facilities. The court further held that although municipalities have the power to issue permits to determine the manner in which public utilities must place their equipment on or under the land, that power is not unlimited; a municipality may not, through ordinance or otherwise, compel the underground installation of electric utilities.
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