Agenda - Planning Commission - 05/07/2015

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Zoning Bulletin March 25, 2015 1 Volume 9 1 Issue 6 City contended that R.C. 1509.02 did not apply to all parts of the state alike. According to the City, R.C. 1509.02 failed the uniformity requirement because only the eastern part of Ohio had economically viable quantities of gas and oil. The court found that argument "unpersuasive." The court said that "a general law can operate uniformly throughout the state 'even if the result . . . is that the statute does not operate in all geographic areas within the state.' " The court said that "[w]hether or not every acre of Ohio consti- tutes viable drilling land, R.C. 1509.02 imposes the same obligations and grants the same privileges to anyone seeking to engage in oil and gas drill- ing and production operations within the state." Moreover, the court noted, "the statute applies to all municipalities in the same fashion." Finally, the court concluded that the City's five ordinances conflicted with R.C. 1509.02 in two ways. The court found that there was a "classic licensing conflict" in that the ordinances prohibited what R.C. 1509.02 allowed—state-licensed oil and gas production within the City, and the court found that the statute did not allow for concurrent regulatory authority or "double licensing." The statute explicitly prohibited municipalities from exercising their municipal powers to regulate infrastructure in a way that "discriminates against, unfairly impedes, or obstructs" the activities and operations covered by R.C. 1509.02. The City had argued that there was no conflict because the statute and or- dinances regulated two different things: the ordinances addressed "tradi- tional concerns of zoning," while the statute related to "technical safety and correlative rights topics." The court disagreed, finding that under the "plain text of the ordinances, as well as the statute," they both regulated "the same subject matter—oil and gas drilling—and they conflict[ed] in doing so." The City's ordinances prohibited "any excavation" or the drilling of a well for oil, gas, or other hydrocarbons without fully complying with local provi- sions, while the statute prohibited drilling for oil or gas "without having a permit to do so issued by the chief of the [ODNR]." The court concluded that because Beck Energy obtained a valid state permit in accordance with R.C. Chapter 1509, the City could not "extinguish privileges arising there- under through the enforcement of zoning regulations." See also: Clermont Environmental Reclamation Co. v. Wiederhold, 2 Ohio St. 3d 44, 442 N.E.2d 1278, 13 Envtl. L. Rep. 20466 (1982). See also: Auxter v. City of Toledo, 173 Ohio St. 444, 20 Ohio Op. 2d 71, 183 N.E.2d 920 (1962). Case Note: In its decision, the court emphasized that its holding was limited to the five munici- pal ordinances at issue in this case; it made no judgment as to whether other ordi- nances could coexist with R.C. 1509.02. • © 2015 Thomson Reuters 11