Residents Prevail

I will write more shortly, but for those wondering, after listening to another packed crowd of residents, Council unanimously abandoned its new drilling plan. Resolution 6-2012 was defeated 7-0.

What now?
The city can either proceed to arbitration, as ordered by Common Pleas Judge Eileen Gallagher, or attempt to reach a financial settlement with Bass.
According to resident Stan Walczak, who presented his financial analysis to Council on Tuesday, due to the plummeting wholesale cost of natural gas, the drilling deal does not represent a very favorable return on investment for Bass.  That financial reality should have a big impact, should the parties decide to sit down across a bargaining table with each other.

Of course residents won't really be out of the woods until the Bass Energy matter is resolved.

Hopefully, however, the message they strongly and forcefully communicated---about keeping gas wells out our Community Park---was (finally) received and embraced by Mayor Coleman and Council.

Highland Heights Council’s Drilling Vote Rescheduled For March 27th

The over 200 residents who attended the March 13^th council meeting were quite perturbed when, instead of voting, council pulled its drilling resolution off the agenda.  It’s back on the agenda for the March 27^th council meeting.

Council President Cathy Murphy promised that council will vote on Resolution 6-2012 on March 27^th . That resolution would authorize Mayor Scott Coleman to sign a new lease with Bass Energy, resulting in 2 “frac” gas wells being drilled near the tennis courts and the pool in the Community Park. 

Anyone who cares about this issue should mark their calendar and plan to attend the March 27^th Council meeting.

 It will be held at 8 pm in Highland Heights City Hall (the building behind the police station, to the right of the community center). Judging by the turnout two weeks ago, you should come early if you want to get a good seat.

As the Love Our Green Space (LOGS) flyer said:

These are our representatives. Let’s get their attention!

BITS AND PIECES AND OTHER CITY NEWS

IS IT NOT OKAY TO HOLD ELECTED OFFICIALS ACCOUNTABLE?

Today’s Sun Messenger has a lot of coverage about the March 13^th Council meeting and Council’s controversial drilling resolution.

They also printed several letters to the editor.

In one of those letters, a Lyndhurst councilman criticized me for allegedly “attack(ing) the mayor,” “cross(ing) the line from talking about the issue into making it personal,” violating “proper protocol,” and “name-call(ing)”.

Pardon me?

Since when are residents not allowed to challenge and question elected officials in public regarding their official actions and decisions---especially when those actions and decisions resulted in a lawsuit being filed against the city?

And since when does questioning elected officials in public regarding their official actions and decisions constitute “name calling,” personal “attacks,” and “(im)proper protocol”?

Boy am I glad I don’t live in Lyndhurst.

My March 13^th speech to Council is set out, in full, as a  separate blog entry immediately below this one (I know that it's a pain to scroll down, but it's there if you look for it).

On March 13^th I discussed not just Mayor Scott Coleman’s part in the Bass Energy disaster, but the role of the 2007 Council and a former city engineer too, and I did so to give context to my argument that Resolution 6-2012 is an improper attempt to validate and legitimize the prior ultra vires acts that resulted in the Bass Energy suit.

Read my speech.
Decide for yourself whether Mr. Gambatese properly characterized my speech as “name calling” and an improper “personal attack”.

I think the nonresident councilman is dead wrong.

I think all of the comments made by residents at the March 13^th  Council meeting were important, legitimate and fair public discussion of a very contentious local issue.

Bottom line, if Mayor Coleman--- or any elected official---can’t stand the heat, they should get out of the kitchen.

HAPPY ANNIVERSARY

I posted my first blog entry ( http://highlandheightsohiohappenings.blogspot.com/)  on March 8, 2009.
The topics I reported on and discussed were:  the budget, gas wells, airport expansion and renovating the old pool house.

The more things change, the more they stay the same...

Three years and still going strong. Happy 3^rd anniversary!

NOW YOU SEE IT, NOW YOU DON’T…OH WAIT, I SEE IT AGAIN

I noted in my June 11, 2011 blog that the Crostatas Pizzeria’s outdoor sign mysteriously disappeared a few months after it was installed last year.

The sign returned a few weeks ago.

Will it stay? The mystery continues.

UPDATE: PLANNING & ZONING’S APPROVAL OF A NON-CONFORMING LEASING SIGN FOR NON-EXISTENT COMMERCIAL SPACE

In my February 17, 2012 blog, I questioned the Planning & Zoning Commission’s  (P&Z) decision to approve a leasing sign that developer Lance Osborne wanted to install at the rear of the vacant Catalano’s grocery store property.

There were several problems with that decision: 1) only owners can apply for sign permits and Osborne doesn’t own the Catalano’s property; 2) Osborne hadn’t even applied for a sign permit; 3) it’s up to the Building Commissioner, not P&Z, to approve sign permits; 4) the sign advertised non-existent commercial space---space that might never exist, according to Osborne, if voters reject his plan to install a mega Get-Go gas station and café on the site; and 5) the sign P&Z approved doesn’t comply with city law.

Wow, that’s quite a list, isn’t it?

The P&Z minutes from that meeting have been posted online.

http://www.highlandhts.com/docs/planning_and_zoning/meeting%20minutes/2012/02-13-12_P&Z_minutes.htm

They show one fact that I didn’t know:  the vote to approve the sign was not unanimous. After ascertaining that Osborne wasn’t the property owner, attorney Ann D’Amico voted no on approving the sign.  Too bad the boys on P&Z didn’t follow her lead.

The minutes state:

“The consensus of the Commission was that the proposed (4’ x 8’) sign meets the criteria defined in HHCO 1145.02(22):  “Definitions; real estate sign” and is subject to the requirements as outlined in HHCO 1145.06(j)…. The consensus of the Commission for approving the sign was that it conforms to City Code.”

Really?

Highland Heights Ordinance 1145.02 (22) defines “real estate sign” as:

 "…a sign pertaining to the rental, sale or lease of property on which the sign is displayed.”

Highland Heights Ordinance 1145.06(j)(4), pertaining to “Commercial for Lease and Rent Signs,” states:

“…any ground sign…shall not exceed eight (8) square feet in total area…”

Do you suppose P&Z really thought Osborne’s 32 square feet sign advertising non-existent commercial space “conform(ed) to City Code” ?

And if the guys who are supposed to safeguard and enforce our city zoning laws ignore those laws, where does that leave the rest of us---especially the rest of us who aren’t bigwig local developers?

CHANGES A’COMING AT CITY HALL?

Council adopted Mayor Scott  Coleman’s 2012 budget last week.

There were two intriguing expense items listed for the Finance Department: $11,797 in sick time payouts and $14,264 in vacation time buyouts. Last year’s expense for each of those items:  $0.

Buyouts are usually paid when someone leaves their city employment.

Could it be that one of the mayor’s nepotism issues is about to disappear?

Rumor has it that Finance Director Anthony Ianiro plans to retire this year.
 That certainly could explain those unusual expense items in the Finance Department budget.

WE DON’T WANT NO STINKING GARBAGE TOTER CARTS

Council was supposed to decide on a garbage contract on March 13^th, but the vote was postponed so they could discuss their options one more time at a March 20^th Committee of the Whole meeting.

A representative from the winning bidder (Kimble, formerly known as J&J Refuse) attended.

Council’s dilemma was whether to take the leap to automated garbage collection, which would require residents to use Kimble-supplied large garbage toter carts.

Although the final vote was 6-1 in favor of keeping our current, non-automated collection system, Council was actually quite split on the issue.

Councilmen Bob Mastrangelo, Chuck Brunello and Frank Legan, along with Mayor Coleman, favored going totally toter.

After doing a great deal of research, Mastrangelo concluded that going the toter route made most sense for the city in the long run:

“I’m not a tree hugger, it’s simply a matter of economics…If we are concerned about cost, the best way to save money in the future is to recycle.  Beachwood found that their solid waste went down because their garbage stayed dry (the toter carts have attached lids)..We can have free (toter) cans now, but that option may not be out there in the future…It may cost us more down the road..It will make us more competitive by having (automated pickup) capability.”

More persuasive to a majority of council members, however, were the many phone calls and emails they received from residents who were opposed to the idea of having toter carts thrust upon them.

Council President Cathy Murphy explained,

“I support keeping garbage collection the same. Residents are so pleased with the rubbish service as currently provided. I received an overwhelming response (from residents) not to change…I have driven around cities with large toter carts and I see them all sitting outside.  I also prefer a 3 year contract versus a 5 year ironclad contract (with toters). I think there is a lot of potential value to have the ability to revisit the rubbish contract. If you tie yourself up for 5 years, a lot could happen.”

The last point has some validity, especially given that the contract allows Kimble to bill more for its services each month, as the cost of fuel rises.

The contract uses the U.S. Energy Administration’s retail price for diesel as of January 2, 2012 as the base fuel price and allows Kimble to increase the amount it bills for its collection service each month by  .5% for each 10 cents that the actual retail price of diesel fuel exceeds the January 2^nd price that month.

Gas prices have increased significantly since January; no doubt diesel prices have followed.
The Kimble contract may prove to be far more expensive than the city anticipated---to the point that the city may not realize any anticipated savings after all.
If that’s the case, it will benefit the city to be able to rebid the garbage contract in 3 years.

In the meantime, I really wish I had a toter cart for my recyclables. It should would be swell to be able to simply toss everything---paper, bottles and plastic---into a single bin and roll it to the curb for pickup.

Maybe I’ll be able to do that---in 3 years.

My March 13th Speech To Council: Legitimate Public Discussion or Personal Attack?

In a Sun Messenger Letter to the Editor this week, a Lyndhurst Councilman pointed a finger at me, claiming that I engaged in an improper and unfair personal attack on Mayor Scott Coleman when I addressed Council on March 13th. 

I hadn't intended to publish my speech---because I was really just talking to Council---but since the content of my speech has been questioned, I figure it's appropriate to post it.
I encourage readers to decide for themselves whether what I said constitutes fair and legitimate discussion about matters of public concern or if, as Mr. Gambatese claimed, it was inappropriate commentary.
You can contact me to share your thoughts by using the email link in the right panel of this blog.
Here goes:
 

So have we convinced you yet?

Residents have been told during every council meeting for the last 6 weeks that tonight was that night that Council would vote on the new drilling resolution. 

March 13^th has arrived and instead of taking a vote, you have pulled Resolution 6-2012 off the agenda.

I hope you understand how very bad that looks.

I’d buy your excuse for postponing the vote except for the fact that you’ve known about the wetlands issue for over 4 years.

A December 6, 2007 letter to the editor pointed out that one of the original drilling sites was sitting in a wetlands. That’s essentially the same site that you’ve chosen as well site # 1, the one next to the park parking lot.

The gas well committee discussed the wetlands a year ago. After that discussion only Mayor Coleman and two others voted to drill in that spot. A majority of the committee members didn’t think drilling there was a good idea at all.

You have discussed the wetlands too. During a January 2011 committee meeting you heard the city engineer recommend undertaking a formal delineation of the wetlands.

After ignoring the issue for more than four years, Council is suddenly concerned about the wetlands?

I’m sure having a chamber full of angry residents has nothing to do with it----right?

Residents have come here as witnesses, to see for themselves just who among you has the temerity to vote to put gas wells in the Community Park.

There are so many things wrong with Resolution 6-2012 that’s it’s hard to know where to begin.

There is a saying that goes like this: if you find yourself in a hole, stop digging.

You’re in a hole, and your plan is to dig deeper.

Three ultra vires acts led us here tonight.

If you pass Resolution 6-2012 you will be committing a fourth ultra vires act. 

Ultra vires---what do I mean? Ultra vires is an exercise of power in excess of authority. Ultra vires acts cannot be ratified or made legal and they can be challenged in court.  

Council does not have the power or authority to ratify or legalize the prior ultra vires acts that brought us here tonite.

What are those acts? Let me tell you.

Ultra vires act #1:  Council passes a resolution in 2007 that conditionally authorizes the mayor to sign two drilling leases, one for the Community Park and one for the Municipal Complex.

In adopting that resolution, Council ignored Highland Heights Ordinance § 733.20(d)---an ordinance that bars gas wells from the city park.

Law Director Tim Paluf later--and quite properly---concluded that although the state took away the city’s power to issue drilling permits, Ordinance 733.20(d) was still binding on the city in its role as a municipal property owner.

So Council’s 2007 drilling resolution is ultra vires act #1.

Ultra vires act #2: Mayor Coleman’s execution of the original drilling lease for the park.

Council is allowed to limit the mayor’s authority to execute contracts, and contracts aren’t valid if the mayor doesn’t have authority to sign them.

By law, it’s up to the people who do business with the city to make sure that municipal contracts are properly authorized and validly executed.

Council’s 2007 drilling resolution didn’t take effect as soon as it was adopted. In fact, it never took effect because a precondition imposed by council---namely that the parties agree on 3 well sites first—was never met.

That’s what Common Pleas Court Judge Eileen Gallagher meant when she stated that the mayor had “no power” when he signed the drilling lease. He had no power because the resolution authorizing him to sign drilling leases hadn’t yet taken effect.

The mayor’s act in signing the original drilling lease before he was authorized to do so is ultra vires act #2.

Ultra vires act #3: the former city engineer’s selection of well sites for Bass Energy. 

The city didn’t hire Bass Energy as a contractor to drill gas wells in the park. The drilling deal, instead, was an arms length transaction between two independent entities with potentially conflicting interests.

As city engineer, Andy Blackley was supposed to work exclusively for the city, but he admitted under oath that he worked for Bass Energy too. Bass paid him to select drilling sites and to produce the site map that Bass used to get drilling permits for the park.

Blackley didn’t tell Council what he was doing, and he didn’t get written approval of the well sites from the city as required by the lease.

That’s ultra vires act #3.

Resolution 6-2012 authorizes the mayor to sign a new drilling lease for the park, and the target drilling sites that you have selected are the same ones that Bass Energy paid Mr. Blackley to select.  

That’s not a fluke. The inclusion of those wellsites clearly demonstrates that your new drilling resolution is nothing more than an improper and invalid attempt to ratify and legitimize the prior ultra vires acts of Council, of Mayor Coleman and of Mr. Blackley.

If you pass Resolution 6-2012, residents will have no choice but to file a O.R.C. § 733.59 suit, to prevent your ultra vires resolution from taking effect. Residents don’t want to have to take such a terrible, terrible step. Please, please don’t make us do that.

It’s absolutely incomprehensible that Council would pass a resolution allowing gas wells to be drilled in the park when, in 2008, residents overwhelming adopted a new Charter provision that bans gas wells from the park.

While the original drilling lease predated that vote, your new drilling lease does not.Resolution 6-2012 violates § 14.07 of our city Charter.

It’s hard to believe we are even having this discussion when residents are so clearly and adamantly opposed to drilling gas wells in the park.

 The only excuse I’ve heard is that Council is afraid to go to arbitration as ordered by Judge Gallagher because it might result in a money judgment against the city.

You justify drilling as a responsible act--one taken to protect the public purse.

I want to remind you of something.

It’s not YOUR money, its OUR money.

Residents are the ones who pay the taxes and fill the city coffers—and those residents decided four years ago to take drilling in the park off the table.

If your intent is to protect the public purse, I’ve got to say you’re doing a pretty lousy job there too.

Steubenville just agreed to a drilling deal that includes a $5,400 per acre signing bonus and a 19% royalty payment.

Your drilling deal, which involves 40 acres of city parkland, will bring in a $10,000 spud fee and 12.5% royalties. That’s it. You sure know how to be fine protectors of the public purse.

Bass Energy will be laughing all the way to the bank.

We are very fortunate in this city. The city has close to $7 million sitting in its bank account and the finance director expects that we will operate in the black again this year. A judgment for Bass---in the unlikely event that Bass actually prevailed in arbitration---isn’t going to bankrupt us.

The city is also fortunate to have thoughtful, engaged residents. In 2008, 3,607 of those residents voted to protect the Community Park from gas wells.  There couldn’t be any clearer expression of residents’ wishes than that. 

Residents don’t deserve to be ignored or treated with contempt. Council need to obey their wishes and the rule of law in our city.

If you pass Resolution 6-2012, you will fracture the city.

For your sakes and for ours---Please don’t fracture the city by allowing frac gas wells to be drilled in the park.

Stop the madness.

You’ve taken Resolution 6-2012 off the table tonite. Now go one step further and throw it in the garbage can where it belongs.

Thank you.

Residents Tell Council: No Drilling In Our Park

More than 200 residents showed up for the Council meeting last night. 

They were there to speak out against Council's plan to allow two frac gas wells to be drilled in the park and to witness Council's vote on the drilling resolution, Resolution 6-2012.

The crowd exceeded the council chamber's legal limit, so some residents had to listen on speakers installed in the City Hall rotunda.

The public spoke for an hour and a half.

Among the speakers, 2 former mayors (Fran Hogg and Tom Hughes) and the representative for a 3rd former mayor (Virginia Swanson) stepped up to the microphone to express their opposition to Council's drilling resolution. They told  Council that Highland Heights residents have always opposed drilling in the park.

Council did not vote on Resolution 6-2012 last night. 

Council President Cathy Murphy announced at the beginning of the meeting that Council had decided to pull the resolution off the agenda----not because Council had changed its mind, but because Council  ( more than 4 years after first hearing about the issue) suddenly decided to rethink the idea of drilling in the wetlands near the park parking lot.

Murphy said that the reason the drilling resolution was being pulled was because Council was:

"...looking to relocate wellhead # 1 (the wetlands one). We heard numerous concerns about the wetlands from residents last week.  We are looking at negotiating with Bass Energy to move that wellsite to an area in the adjacent parking lot."

Ironically, that parking lot sits on the very same wetlands.  Did the city obtain wetland permits before installing that parking lot? No, it did not.

Murphy told residents that the drilling resolution will be put back on the agenda sometime in the future, maybe in two weeks.

If Council members had any common sense, they would listen to what residents and our city's veteran leaders had to say and leave Resolution 6-2012 off the agenda permanently. 

Read what the reporters wrote about the meeting:

http://www.cleveland.com/hillcrest/index.ssf/2012/03/highland_heights_gas_well_meet.htm

http://hillcrest.patch.com/articles/residents-pack-highland-heights-city-hall-to-protest-gas-wells-in-park
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Council's Contempt For Residents

Council’s new drilling resolution reflects clear contempt for the 3,607 Highland Heights residents who overwhelmingly voted in 2008 to amend the charter to ban gas wells from the Community Park.

In 2007 Highland Heights Council passed a resolution that conditionally authorized Mayor Scott Coleman to sign gas well leases for the municipal center and the Community Park – an unfortunate act that resulted in a lawsuit and the adoption of a new Charter provision banning gas wells from city parks.

On March 13 Council will vote on a new drilling resolution that authorizes the mayor to sign a new lease allowing two "frac" gas wells (one a 1,600-foot directional well) to be drilled in the Community Park.

Residents' last chance to be heard on the issue of putting gas wells in the park is the March 13 Council meeting, 8 p.m., Highland Heights City Hall.

The new resolution was the product of secret, behind-closed-door executive session discussions.

Council did not consult with residents or otherwise make public that it was considering such a move.

Talk about déjà vu.

To comply with state law, council scheduled a public hearing with representatives from the Ohio Department of Natural Resources – the agency that refused to shut down a Bainbridge gas well after it contaminated an aquifer and caused a home explosion a couple of years ago.

The fact that council waited until the last minute to hold the hearing, after the resolution had two of three required readings, sent an unmistakable message to residents regarding its intention to pass the resolution despite the new charter provision, which not only bans gas wells from the park but also requires voter approval before any city parkland is sold, leased or exchanged. 

I attended the March 6  "hearing."  Council President Cathy Murphy exercised tight control over the meeting – perhaps out of fear of what Council might hear if residents were allowed to fully and openly speak their minds.

Residents were allowed to ask questions, but were quickly cut off whenever they attempted to engage in a dialogue about the drilling resolution. Significantly, Mayor Coleman and the other Council members sat mute. They did not make any comments or ask any questions during the meeting.

Council members are not kings or dictators.

They have a duty to serve and obey our charter, our laws, and the will of the people who elected them.

Council’s new drilling resolution reflects clear contempt for the 3,607 Highland Heights residents who overwhelmingly voted in 2008 to amend the charter to ban gas wells from the Community Park.

Shame, shame on them.

Notice to Residents Distributed By Love Our Green Space (LOGS)