Home Rule has been dealt a set-back in Ohio, but not a death blow. Far from it. As Lady Chainsaw (aka Deborah Goldberg) explains, the court ruling did not negate a municipality’s ability to apply land use laws – zoning – to oil and gas activity – provided the ordinance is based on a comprehensive land use plan and is limited to land use zoning – not the regulation of drilling.
The ruling just prevents towns from trying to regulate the activity of oil and gas drilling – what the court refers to as “double licensing” of the activity by the town as well as the state. No can do. Not in New York, not in Texas, not in New Mexico, not nowhere. This has not gone unnoticed by real land use attorneys.
As we have seen before, there are right ways to use municipal ordinances and there are wrong ways. Nutshell, the Ohio town took the wrong approach – as the justices spelled out in their opinions.
“The press is overplaying the decision. We submitted an amicus brief on behalf of health professionals in the case. Our amicus brief argued strenuously that the Ohio Supreme Court should decide the case narrowly and not rule out the possibility of zoning that could work with state oil and gas regulatory law. The three-judge plurality ruled against the City, but in doing so, it stated:
The issue before us is not whether the law should generally allow municipalities to have concurrent regulatory authority, but whether R.C. 1509.02 and the Home Rule Amendment do allow for the kind of double licensing at issue here. They do not. We make no judgment as to whether other ordinances could coexist with the General Assembly’s comprehensive regulatory scheme. Rather, our holding is limited to the five municipal ordinances at issue in this case.
The one-judge concurrence stated:
I write separately to emphasize the limited scope of our decision; “our holding is limited to the five municipal ordinances at issue in this case.” Lead opinion at ¶ 33. This appeal does not present the question whether R.C. 1509.02 conflicts with local land use ordinances that address only the traditional concerns of zoning laws, such as ensuring compatibility with local neighborhoods, preserving property values, or effectuating a municipality’s longterm plan for development, by limiting oil and gas wells to certain zoning districts without imposing a separate permitting regime applicable only to oil and gas drilling.
Thus, in my view, it remains to be decided whether the General Assembly intended to wholly supplant all local zoning ordinances limiting land uses to certain zoning districts without regulating the details of oil and gas drilling expressly addressed by R.C. Chapter 1509. . . .
Courts of last resort in other jurisdictions have declined to view preemptive language in oil and gas statutes that preclude all local regulation of oil and gas drilling as irreconcilable with local zoning laws.In Wallach v. Dryden, 23 N.Y.3d 728, 992 N.Y.S.2d 710 (2014), the Court of Appeals of New York held that a statute expressly superseding all local laws “relating to the regulation” of the oil and gas industry “preempt[s] only local laws that purport to regulate the actual operations of oil and gas activities, not zoning ordinances that restrict or prohibit certain land uses within town boundaries.” Id. at 744, 746.
Finally, there are three dissents. The City lost by only one vote. I think this split decision leaves openings for local control in Ohio.”
Provided the ordinances are based on a comprehensive land use plan and address land use zoning, not the attempted regulation of oil and gas drilling by a municipality. Moral : Get Home Rule ordinances right.
All it takes is an honest-to-god land use planner with a pulse and a real live land use attorney that passed the bar exam in less than 4 attempts.
Any questions ? Ask a land use planner and a land use attorney licensed to practice Ohio that know the difference between land use regulations and drilling regulations.
Here’s a Real Ohio Land Use Lawyer’s Take on the Ohio Ruling: Listen to the interview here
“But gas & oil law specialist Alan Wenger sees it differently. He says fully reading the justices’ opinions shows that a majority are sympathetic to the idea that local communities have a right to control property use; but Munroe Falls over-reached the range of its authority under state law. “Four of the judges, and the swing judge, O’Donnell, very narrowly aimed the decision to specifically the five ordinances in Munroe Falls, because they require permitting and various things that should be only in the ODNR’s realm. Judge O’Donnell said, if that were not the case he may have ruled the other way. So door is left open pretty definitely, I think.”
Laws and challenges
Wenger believes that local controls on drilling can be built on zoning, consistently applied. He says true local zoning ordinances that stick to specifying where industrial activity can be in a city are likely to hold up before the court. “I’m predicting they’ll allow it…if it comes to another decision down the road. As long as its reasonable and it doesn’t single out oil & gas over other industrial uses.”
The Ohio Supreme Court didn’t shut the door on home rule after all when it shot down those Munroe Falls gas and oil drilling ordinances.
WKSU’s Tim Rudell reports.
Ohio Supreme Court Rules Towns Regulation of Oil and Gas Drilling are Improper
By Robert Higgs, Northeast Ohio Media Group
COLUMBUS, Ohio — The Ohio Supreme Court on Tuesday ruled that communities may not exercise ordinances to regulate oil and gas drilling if they conflict with a state law that regulates drilling across Ohio.
In its 4-3 decision, the court upheld an appellate court’s ruling against the city of Munroe Falls that struck down regulations the community was trying to enforce against a driller, Beck Energy.
Munroe Falls had won an injunction in Summit County Common Pleas Court that halted Beck from drilling, even after Beck had obtained permits from the state. It appealed to the Supreme Court after the Ohio 9th District Court of Appeals overturned that decision.
Ohio’s home rule provisions in the state constitution permit communities to enact local rules and regulations so long as they do not conflict with general state laws.
But in her majority opinion, Justice Judith French wrote that the Munroe Falls regulations, which were enacted between 1980 and 1995, clashed with a 2004 law enacted by the General Assembly that provided for general statewide regulation of oil and gas drilling.
“This is a classic licensing conflict under our home-rule precedent,” French wrote in her opinion. “We have consistently held that a municipal-licensing ordinance conflicts with a state-licensing scheme if the local ordinance restricts an activity which a state license permits.”
Munroe Falls’ regulations, she wrote, “prohibit — even criminalize — the act of drilling for oil and gas without a municipal drilling permit,” negating the state’s authority to regulate drilling. The state statute, though, provides that it, not municipal authorities, shall have sole authority “to regulate ‘all aspects’ of the location, drilling, and operation of oil and gas wells,” she noted.
“Article II, Section 36 vests the General Assembly with the power to pass laws providing for the ‘regulation of methods of mining, weighing, measuring and marketing coal, oil, gas and all other minerals.'” French wrote. “With the comprehensive regulatory scheme in [the regulatory statute], the General Assembly has done exactly that.”
The scope of home-rule authority, and the ability of the General Assembly to limit it, has sparked several court battles in recent years. Several times the Supreme Court has upheld the state’s authority to trump local regulations and ordinances.
The General Assembly has enacted several laws in recent years, many upheld by the Supreme Court, that were aimed at uniform regulation across Ohio. Among them:
- A law giving the state control over predatory lenders (2002).
- A law giving the state the exclusive power to regulate guns (2006)
- A law barring cities from requiring that their workers live in a certain place (such as within the city boundaries). (2006)
Indeed, the court has mentioned the need for uniformity in some of its rulings.
A 2010 case, for example, upheld the state law that blocked Cleveland and other cities from passing assault weapons bans and handgun registration requirements. Justice Evelyn Lundberg Stratton wrote that the statewide law was necessary to keep gun owners from being at the mercy of “a confusing patchwork” of licensing requirements and possession restrictions.
But the court also has recognized that home-rule power must be respected.
A ruling last year struck down part of a state law that forbid local governments from enacting any regulations over towing. That case, brought by the city of Cleveland, gave exclusive authority to regulate towing to the Public Utilities Commission of Ohio.
While the court upheld that part of the law, it said the portion forbidding any local regulation went too far.
“It is enough to say that municipalities may supplement state law in these unregulated areas, provided that the city ordinances do not conflict with general laws,” Justice Judith Lanzinger wrote.
French, in the ruling announced Tuesday, specifically cited that case, noting that the decision there was consistent with the decision in the Munroe Falls case.
French was joined by Chief Justice Maureen O’Connor and Justice Sharon Kennedy. Justice Terrence O’Donnell concurred in the judgment but wrote that he would only apply the ruling to the specific regulations in the Munroe Falls case.
Lanzinger, joined by O’Neill and Pfeifer, dissented with Tuesday’s ruling, writing that she was not convinced that the city’s regulations conflicted with the state law.
“In enacting Revised Code Chapter 1509 (the governing statute), the General Assembly sought to preempt the inconsistent patchwork of local health and safety regulations governing the technical aspects of drilling that had been permitted by the former version of the statute,”
Lanzinger wrote. “If the legislature had intended to override all local zoning ordinances that affect oil and gas drilling, it could have declared that intent. … Yet it did not do so.”
Justices Paul Pfeifer and William O’Neill each wrote their own dissents, also.
Pfeifer added that in his view the legislature left open the possibility of local input, while enacting a statute that covered what he described as the “big picture.”
O’Neill’s criticism was more direct, saying the state statute took away citizens’ ability to regulate oil and gas drilling in their own backyards, regardless of how long their local zoning codes have been in force.
“Let’s be clear here,” O’Neill wrote. “The Ohio General Assembly has created a zookeeper to feed the elephant in the living room. What the drilling industry has bought and paid for in campaign contributions they shall receive.
“The oil and gas industry has gotten its way, and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio,” he wrote. “Under this ruling, a drilling permit could be granted in the exquisite residential neighborhoods of Upper Arlington, Shaker Heights, or the village of Indian Hill — local zoning dating back to 1920 be damned.”
Except that this was not a straight-up land use zoning case. This was a municipal drilling permit case. Big difference.