Agenda - Planning Commission - 09/16/2010 - Special Meeting

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July 10, 2010I Volume 4I No. 13 Zoning Bulletin More specifically, TMGS contended that its state -conferred eminent do- main power trumped/was immune from the setback requirement. TMGS also maintained that the setback requirement conflicted with, and was therefore preempted by, the PSA's express preemption of state "safety standards for pipeline facilities ...." The district court disagreed with TMGS. It held that Section 10's setback requirement was lawful. TMGS appealed. The Court's Decision: Judgment of district court affirmed. The United States Court of Appeals, Fifth Circuit, rejected TMGS's argument that its eminent domain power trumped the setback require- ment. As a matter for first impression (i.e., the first time the court con- sidered the issue), the court also held that the PSA did not preempt a setback requirement for a compressor station. In rejecting TMGS's eminent domain immunity argument, the court said that "an eminent domain entity like TMGS must comply with generally applicable zoning requirements." TMGS's argument found "no support in law." TMGS had failed to show that: state law in- tended to exempt it from zoning or setback requirements; or that state regulations preempted the City's police powers in this area. Moreover, TMGS failed to show that the City's setback requirement was "unrea- sonable or arbitrary" (i.e., that it "fail[ed] to promote public health, safety, or welfare"). Although it might be "costly or inconvenient for TMGS to acquire enough land to ensure that its compressor station conforms to [the City's] [setback] requirements .... these are normal consequences of complying with local zoning laws," said the court. As to the PSA preemption argument, the court explained that fed- eral law may exempt state (and local) law in three ways: (1) clearly and expressly; (2) implicitly by "directly conflicting with it" (conflict preemption); or (3) implicitly by "occupying a field so pervasively as to naturally exclude it" (field preemption). The court acknowledged that the PSA expressly preempted "safety standards" for pipeline facilities. Since the PSA provided this express preemption, the court determined it need not look to see if there were other implicit preemptions. The court said that the question then here was: whether the City's setback requirement was a "safety stan- dard," which was preempted by the PSA. The court found the setback requirement was not a safety standard; rather it concluded it was an aesthetic standard. Moreover, the court said that even if the setback requirement had an incidental affect on fire safety (as TMGS had ar- gued), it still was not preempted by the PSA. (Section 192.163 of the PSA mandated that compressor stations be "situated to minimize fire risks.") This was because: (1) the setback requirement did not reduce safety and hinder Congress's intent of the PSA safety standards; and 6 © 2010 Thomson Reuters 92