Making the Right Choice: No Frac Driling in Highland Heights Community Park

My message to Council last week: the Right Choice isn’t necessarily the Easy Choice when it comes to deciding what to do in the Bass Energy lawsuit.

BASS ENERGY: The Backstory and Timeline

-On  September 26, 2006, Mayor Scott Coleman told Council that  he and Law Director Tim Paluf met with Bass Energy to discuss Bass’s “interest in digging natural gas wells on city owned property.”

http://www.highlandhts.com/docs/city_council/minutes/2006/09-26-06_council_minutes.htm

-On January 23, 2007 Council adopted Resolution 63-2006, authorizing Mayor Coleman to execute two drilling leases with Bass Energy, one covering a frac gas well at the municipal complex property and one allowing two frac gas wells to be drilled in the Community Park.

 Resolution 63-2006 imposed an express limitation on the mayor’s power to execute the drilling leases. It read:

“Section 2. This Resolution is contingent upon the approval of the three sites by the City of Highland Heights and the commitment of Bass Energy to drill the wells on all three sites.”

This contingency was never met. The city never approved 3 drilling sites. 

http://www.highlandhts.com/docs/city_council/minutes/2007/01-23-07_city_council_minutes.htm

-On March 6, 2007, Mayor Scott Coleman executed a drilling lease allowing Bass Energy to drill two frac gas wells in the park. The city hadn’t approved of any specific drilling sites when he signed the lease.

Section 8 of the drilling Lease explicitly stated that Bass had to obtain the city’s written approval of the drilling sites before any drilling could begin. It read, in part:

Lessee (Bass) shall receive written approval from the  Lessor (the city) of the location of the well, well surface equipment, pipelines, and fencing material prior to commencing drilling operations...”

Significantly, the mayor did not tell Council that he had signed a drilling lease when he met with them the following week.

 http://www.highlandhts.com/docs/city_council/minutes/2007/03-13-07_city_council_minutes.htm

-Late March 2007. Bass Energy hired the city’s then-engineer Andy Blackley to select well sites for it.  Bass Energy paid for Blackley’s services and used his April 20, 2007 plat map to obtain state drilling permits in July 2007.
Council was unaware of this arrangement, and Blackley did not share the plat map with them until late fall, several months after Bass obtained drilling permits for the park.  

-On October 29, 2007, Blackley sent a letter to Bass Energy reminding it that Council’s formal approval of the well sites was required before any drilling could begin.

-November 12, 2007. Bass Energy appeared at a Planning & Zoning Commission hearing.  Several council members attended that meeting and learned, for the first time, about Blackley’s plat map and that Bass had used that map to obtain drilling permits the previous summer.

-November 13, 2007. The minutes from the  November 13, 2007 council meeting state:

"Council President (Cathy) Murphy said....it was apparent that there has been miscommunication and that the agent for Bass Energy has no understanding of the City’s approval process as outlined in Section 733 of the Codified Ordinances... In response to Mrs. Murphy’s  inquiry if the City, being the landowner of the park, has authority on approval, Law Director Paluf replied yes.
Council agreed that Bass Energy should meet with Council to discuss alternative drilling sites and for Council to determine if any of those sites are acceptable locations..”

http://www.highlandhts.com/docs/city_council/minutes/2007/11-13-07_city_council_minutes.htm

-Chapter 733 of the Codified Ordinances deals with gas and oil wells in the city. 
Ordinance 733.10 reads:

"The City’s adoption of these regulations shall be supplementary to and read in conjunction with (state) standards and regulations as they relate to drilling...of any oil or gas well within the limits of the city...”

Ordinance 733.20 states:

“Regardless of whether an appropriate permit has been obtained (from the state)....no person, firm or corporation shall ...(d) a gas or oil well within 500 feet of a...public park or playground...or any other public building used as a place of public assembly.”

Law Director Tim Paluf told Council that although the state had sole control over the permitting process, Ordinance 733.20 was binding on the city in its capacity as property owner of the Community Park and Municipal Center complex.  Pursuant to Ordinance 733.20, the city was prohibited from drilling gas wells on any city-owned property.

-January 22, 2008. Council rescinded Resolution 63-2006, thereby revoking Mayor Coleman’s authority to sign drilling leases with Bass Energy. The mayor had not yet signed the second anticipated drilling lease for the Municipal Complex.

http://www.highlandhts.com/docs/city_council/minutes/2008/01-22-08_city_council_minutes.htm

 -July 18, 2008. Bass Energy sued the city, claiming that it had breached the drilling lease for the park. Bass later argued that it was entitled to arbitrate its breach of contract claim (instead of litigating in court).

-July 2, 2009. Common Pleas Court Judge Eileen T. Gallagher issued an opinion sustaining Bass Energy’s arbitration claim. In her opinion Judge Gallagher wrote,

“...Section 2 of Resolution 63-2006 states that the resolution is ‘contingent upon the approval of the three (well) sites by the City of Highland Heights and the commitment of Bass Energy to drill the wells on all three sites.’ Pursuant to Resolution 63-2006, Defendant’s mayor (Mayor Scott Coleman) had no power to enter into the Lease until three locations were selected. Despite the fact that three locations were not selected or approved in writing , the parties signed the Lease agreement.”

“The parties agreed that Defendant would have the right to select three well locations prior to drilling...At no time prior to the submission of well locations to the ODNR (Ohio Dept. of Natural Resources) did Defendant’s Mayor or City Counsel (sic) approve, in writing, the well locations as specified in Section 8 of the lease or in Resolution No. 63-2006.”

So, there you have it.

Local ordinances prohibited gas wells from being drilled in the park, the mayor had “no power” to execute a drilling lease with Bass Energy when he signed it in March 2007, and no written approval was ever given for the drilling sites, as required by Resolution 63-2006 and the lease----but Bass Energy sued the city for breach of contract anyway.  

The Easy Solution is not the Right Solution

I spoke to Council last week, concerned that they were leaning towards letting Bass Energy drill instead of choosing the harder road of protecting our community and keeping frac gas wells out of our Community Park.

This is what I said:

"I wanted to talk to you about the Bass Energy lawsuit.
 You have 3 obvious choices are at this point: go to arbitration and fight Bass’s breach of contract claim; negotiate a financial settlement; or cave in and let Bass drill frac gas wells in the park.
 I suspect some of you view the last option as the easiest—and perhaps---best choice.

 But, to paraphrase the late Republican senator, Margaret Chase Smith, “the right way is not always the easy way.”

 Drilling might seem like the easy choice, but it’s not the right choice for our community.

 Last month, a member of the city’s Economic Development Committee declared: “We are not a lifestyle city.” I disagree.
 I think Highland Heights is a “lifestyle city” in part because of the high quality of residential life that it offers. That’s important to me, and judging by the political literature I received last fall, I know that’s important to you too.  Look at these:
 

--Re-elect Mayor Scott Coleman. The first bullet reads:  “As mayor, Scott Coleman and the city of Highland Heights have: Been named the 30^th best place to live in America by Money Magazine in August 2011.”

--Re-elect Frank Legan. The first bullet reads: “Since Frank Legan has been a member of City Council, the city of Highland Heights has: Earned the ranking as the 30^th best place to live in America by CNN/Money Magazine.”

--Re-elect Ed Hargate: “CNN Money Magazine—We were recently honored by Money Magazine as one of the best places to live in the country…Our unique residential nature has made Highland Heights a desirable place to live and work. I will continue to protect our neighborhoods and property values.”

--the September 2011 Highland Highlights magazine. On the cover, the first bullet under “From the Desk of Mayor Coleman”: “Money Magazine Names Highland Heights 30^th Best Small City.” Inside, the mayor comments, “This is the third time in as many rankings that Highland Heights has made the top 100 (best places to live).” He notes that Money Magazine “highlight(ed) our newly renovated community park and pool area...as a …reason why our city is so desirable.”

Clearly the city's top ranking by CNN/Money Magazine means alot to many of you. One of the major contributors to that ranking is our park. 

If you allow gas wells and frac drilling in the park, you might as well kiss our top ranking goodbye.

Because you were elected to sit at the Council table, you might think that it’s okay to make a decision based on your own political views or personal opinions about drilling---but you’d be wrong.

The only opinion that really counts is the opinion of the residents that elected you---and they have spoken quite clearly and decisively on the issue of gas wells in the park.
 In 2008 Highland Heights voters overwhelmingly approved amending our city Charter to ban gas wells from the park.  Charter section 14.07 begins:
 “City parks in Highland Heights are a valued natural resource that significantly contribute to, and enhance, the quality of life in our City.  “
 For that reason:
“… commercial exploitation of the parkland’s natural resources, including gas or oil wells…shall be strictly prohibited
 

You can have no doubt where residents stand on the issue.  As elected officials, you are obligated to follow their direction and obey their wishes.
 

One last thing to keep in mind: You won’t make the best decision if your decision is based on a best case scenario instead of a worst case scenario.
 Once you drill a gas well in the park you can never go back. You can never undo what has been done.
Are you really willing to risk our city becoming another Bainbridge or Youngstown or Medina? Really?
 

Like I said, the easy solution isn’t always the right one.

 I end by sharing this Russian proverb:
 Do not dig a hole for somebody else; you yourself will fall into it.
 Words to the wise, my friends, words to the wise."

Hurry Up and Wait

Life, according to my great uncle John---a crusty New Englander who lived to a ripe old age---boiled down to this: “Hurry Up and Wait.”  Supporters of Lance Osborne’s mega Get-Go project no doubt agree.

GET-GO UPDATE

Developer Lance Osborne and his supporters worked feverishly late last year, hoping to put a Get-Go related zoning issue on the March primary ballot. That effort came to an abrupt halt on January 3^rd, when Osborne conceded that the zoning issue would have to wait until the November 2012 general election.

Although he’s carefully avoided taking a public position on the project, Mayor Scott Coleman has been very involved behind the scenes.  He told Council on January 10^th that he’s been talking with Osborne “and his group” “for a period of time, ” and that his involvement resulted in some concessions---including dropping the car wash which, the mayor said, “was a huge concern of mine.” (Apparently the mega gas station is not).

Coleman showed his activism again on January 3^rd, when he recommended to Council that the city pursue a development agreement with Osborne.  The mayor said that such an agreement,

“…could be part of the issue going to the voters, so the voters know what they are voting on specifically...The project, on its face, has some merit and I think we should undertake a good effort to try to come to an agreement.”

Following Coleman’s lead, Council President Cathy Murphy asked council members to share their questions and concerns about the project with Law Director Tim Paluf, who has been tasked with negotiating on the city’s behalf.

Paluf confirmed on January 10^th that he had received Council’s submissions and that he would be meeting with Osborne and/or his attorney in the next few weeks to discuss a possible development agreement.

It’s not clear at this point just how comprehensive the development agreement will be.

While the city and Osborne might agree on some details--such as the mega Get-Go’s  appearance and lighting--it’s still up in the air whether they will agree on the most crucial issue: the nature and wording of the zoning issue that will appear on the November ballot.

As explained in my previous blog, Charter 8.02.02 requires both city-wide and Ward 4 voter approval if the ballot issue submitted to the voters is a rezoning issue, i.e. if it asks voters to approve rezoning the Catalano’s property (or a lot-split portion thereof) to allow for the proposed mega Get-Go gas station.  

Ward 4 voters will not be provided any special protection, however, if Osborne’s preferred approach is followed, i.e., if the issue submitted to the voters focuses on changing the city’s zoning laws to allow gas stations as an accepted use on all business-zoned properties in the city.

According to last week’s Sun Messenger, Ward 4 Councilwoman Lisa Stickan holds a pretty firm view on which approach should be taken. She is quoted saying:

“Allowing the residents of Ward 4 to have the final say is very important.”

http://www.cleveland.com/hillcrest/index.ssf/2012/01/highland_heights_city_council_2.html

Although he was interviewed for the same story, the mayor didn’t disclose his own position on this “very important” matter to the Sun Messenger reporter. However he has discussed the issue, on the record, in the past. Coleman stated at a June 12, 2011 Committee of the Whole meeting that:

“…he would be concerned with any proposal that takes this proposal out of the vote of the people. That is something they have talked about from the start and he thought it is pretty critical that it remains that way.  They have told the people in Ward 4 that they would have a say in addition to the City as a whole.”

http://www.highlandhts.com/docs/city_council/committee%20minutes/2011/07-12-11_council_committee_minutes.htm

Thus, according to the mayor, a very important promise has already been made to Ward 4 voters:  their Charter 8.02.02 voting rights will be protected when a Get-Go zoning issue appears on the ballot.

That should bring some comfort to those residents, whose neighborhoods and residential property values are likely to be the ones most impacted by Lance Osborne’s proposed mega Get-Go development.

BASS ENERGY LAWSUIT: DRILL OR ARBITRATE?

Rumor has it that Council may hold another executive session to discuss the Bass Energy lawsuit when it reconvenes on January 24^th . That’s the second executive session on that topic this month.

A similar flurry of discussions occurred in January last year.
It’s not hard to know why. If it’s going to drill gas wells in the park, Bass would prefer to do it in the winter, when the park is little used and residents’ windows are closed. (The site-clearing and drilling/rock fracturing operations are conducted around the clock, 24/7, using heavy equipment. It is a lengthy and far from peaceful process.)

Council continues to face the same 3 choices with regard to the lawsuit: 1) proceed to arbitration and fight Bass’s breach of contract claim; 2) pay money to make Bass go away; or 3) throw in the towel and let Bass drill in the park, thereby forever changing the character of the park and potentially endangering Highland Heights residents and the environment.

Mounting scientific evidence has connected frac drilling operations to earthquakes, explosions, underground water contamination and toxic gas releases. Despite that evidence---and voters’ overwhelming approval of a Charter amendment to protect the park from gas wells---some council members apparently still believe that allowing Bass to drill in the park is the easiest and best choice.

If you feel otherwise, now would be a good time to make your voice heard.

Council members’ emails and phone numbers are listed online at the city’s website.

http://www.highlandhts.com/city-council/members.php

Contacting Mayor Coleman wouldn’t be a bad idea either, since he’s the one who rushed to sign the drilling lease that got us into this breach of contract mess.

QUICK HITS

• Jefferson Drive relining project

Service Director Thom Evans reported that the county has awarded a contract for the Jefferson Drive relining project. The work should begin in late February/early March. That’s good news for downstream residents, especially Highland Road residents who experience sewer backups due to storm water infiltration into the Jefferson Drive sewer lines. 

Read more: http://hillcrest.patch.com/articles/flooding-relief-on-way-for-highland-heights 

• Energy Saving Lighting.

Council approved a contract to replace and/or update lighting in the Community Center and other Municipal Complex buildings. Grant money will be used to pay part of the cost. 
Evans noted that the Fire Department was not included in the project because “they received a grant several years ago to update their lighting.” Kudos to Fire Chief Bill Turner and his department for being ahead of the curve and proactively saving taxpayers money.  Read more:

http://hillcrest.patch.com/articles/highland-heights-to-install-new-lights-at-municipal-complex

• FEMA Flood Maps

Last year Council authorized the city engineer’s office to conduct several flood delineation studies in the city after December 2010 FEMA flood maps inexplicably designated several areas as high-risk, 100 year flood zones. Many residents were forced to buy pricey flood insurance as a result of that designation.

The engineer’s work reaped quick benefits for the Williamsburg neighborhood. Last spring FEMA amended their map to restore that neighborhood’s previous low-risk flood designation.

On January 10^th, Engineer Brian Mader reported that his office was about to submit additional data to FEMA concerning several other areas.  Hopefully that will lead to more map amendments in the near future.

Mader’s been pretty tight-lipped about what his office found and which properties are likely to be remapped out of the flood zone. No doubt some residents will still have to buy flood insurance. But if that’s the case, at least they’ll know that the FEMA maps prompting that coverage are accurate.

NEW COUNCIL TERM BRINGS BOTH CHANGE AND MORE OF THE SAME

Highland Heights Council got organized and listened to Lance Osborne’s newest Get-Go presentation on Jan. 3^rd

LANCE OSBORNE’S MOST RECENT GET-GO PITCH

Some Things Change

As 2011 drew to a close, developer Lance Osborne insisted---both in the press and at a December 15^th Economic Development Committee (EDC) meeting---that Council could act on January 3^rd to put a Get-Go related zoning issue on the March 2012 primary ballot.  His claim prompted Highland Heights’ Finance Director, Anthony Ianiro, to “suggest and encourage” that EDC members attend the January 3^rd Council meeting to pressure Council to do just that.

As explained in my last blog, Council couldn’t put a Get-Go-related zoning issue on the March primary ballot, even if it wanted to. 
Osborne and his supporters apparently embraced that reality after singing Auld Lang Syne.  

Osborne certainly hummed an entirely different tune when he appeared before Council on January 3^rd.
Gone was any talk about getting on the March ballot.  Instead he declared that he was there,

“to work with Council about placing it (a Get-Go zoning issue) on the November 2012 ballot.”

A surprise new element of Osborne’s development plan: an outdoor patio located next to the Get-Go convenience store/café---a perfect venue for customers who enjoy breathing in auto exhaust while eating their coffee and subs…

Osborne also revealed that Giant Eagle’s demands had altered. He said that in mid-December,

“We sent a letter to the Law Director (Tim Paluf ) agreeing that the city can…remove the language (in Osborne’s zoning initiative) regarding the size (of allowed businesses)…limit(ing) the hours of operation, and…exclud(ing) the car wash. We’d also be happy to enter into a development agreement to further protect the city.”

Osborne made clear, however, that any

“development agreement would be contingent on a successful (zoning) ballot issue and our acquiring the property (from Giant Eagle). “

The second contingency is a potential minefield. The development agreement—at least as discussed last week---would be between Osborne and the city only. That means Giant Eagle could get around it simply be waiting until after residents approve a zoning issue allowing a mega Get-Go to operate on the Catalano’s property and then refuse to sell the property to Osborne.
 

The reality is that any development agreement between the city and Osborne may be nothing more than an illusion and a public relations stunt ....unless Giant Eagle and Echo (the Giant Eagle-related company that holds title to the Catalano’s property) agree to bind themselves, in writing, to its provisions.

And Some Things Remain the Same

While making some concessions, Osborne made clear that he wasn’t willing to budge on one very important issue:

He doesn’t want any ballot issue that would give Ward 4 residents a special say with regard to using the Catalano’s property as a mega Get-Go gas station.

In 1990, Highland Heights voters amended the Charter to give added protection to the residents most affected by a proposed zoning change.
Section 8.02.02 states that, with regard to any ordinance or resolution that changes how a piece of property is zoned (i.e., changes it from one zoning classification to another), not only must there be city-wide approval, but residents in the ward(s) where the property is located must also approve the change.

Charter 8.02.02 protection was provided to Ward 3 residents a couple of years ago, when an issue pertaining to the business area at the corner of Highland and Miner Roads (where Mulligan’s is located) was put on the ballot.

That protection should also apply to the rezoning of the Catalano’s property---or at least that portion that Osborne wants to use as a mega Get-Go gas station.

 Osborne’s zoning initiative petition was drafted to deprive Ward 4 residents their special protection rights under Charter 8.02.02. 
He did that by framing his zoning law changes to affect all business-zoned properties in the city, not just the Catalano’s parcel.

Council President Cathy Murphy was clearly troubled by Osborne’s approach. She commented,

“Our Charter calls for an independent vote of the (impacted) ward. The way it’s (Osborne’s proposed zoning issue) structured now, that’s being bypassed. A lot of (Council) people went on record saying this was an important component---to put the zoning issue on the ballot so the ward (Ward 4 voters) would have approval.”

When Murphy asked for Osborne’s current position on that issue, he replied,

“We’d like the city to amend the ordinance that we basically put in front of them.”

In other words, Osborne still wants to deprive  Ward 4 voters of their rights under Charter 8.02.02.

He doesn’t want to let Ward 4 voters---the city’s most impacted residents---have the last word on whether or not a mega-Get-Go can be operated on the Catalano’s property.

COUNCIL AND CITY ADMINISTRATION

Some Things Change

In addition to listening to Lance Osborne’s presentation, Council held a special organizational meeting on January 3^rd .

Not surprisingly, the departure of Scott Mills and the arrival of Chuck Brunello meant that there would be some changes on Council.

Ward 1 Councilwoman Cathy Murphy was elected Council President. It’s a familiar role for Murphy; she has served in that capacity in the past.

Councilwoman Lisa Stickan and Councilman Ed Hargate apparently chose to switch committee seats. Hargate decided to serve on the Legislative & Finance Committee with Murphy and Councilman Leo Lombardo this year.
Stickan will serve on the Safety Services (SS) Committee with Brunello and Councilman Bob Mastrangelo.
Mastrangelo will continue serving on the Planning & Zoning Commission.  Brunello will continue to serve on the city’s Park & Recreation Commission (P&R), but change from being a P&R member to Council’s P&R rep.

Councilman Frank Legan was appointed as Council rep to the EDC. That should be a good fit given Legan’s background and interests.

And Some Things Remain the Same

In addition to its own appointments, Council approved Mayor Coleman’s 2012 appointments.

Coleman, who keeps a tight circle and apparently has no problem with nepotism, made no changes to his administrative staff. The brothers Ianiro continue in their roles as the city’s Finance and Recreation Directors.

The mayor also appointed the wife of EDC member Dan Greve (“We are not a lifestyle city”) to a paid position on the city’s Park & Recreation Commission.