Council of the Municipality of Murrysville

Regular Voting Meeting – Thursday, September 24, 2015 Council of the Municipality of Murrysville held a Special Meeting on Thursday, September 24, 2015 at 7:00 p.m. in the Municipal Building. Present at the meeting were Council members Dave Perry, Joan Kearns, Josh Lorenz, William Vance, Loren Kase, and Jeffery Kepler. Councilman Regis Synan was not in attendance. Also present were Mayor Robert Brooks, Chief Administrator James R. Morrison and Municipal Planner Allen Cohen. SPECIAL MEETING AGENDA PRESENTATIONS: A. James Morrison – Chief Administrator B. Allen Cohen – Municipal Planner C. William Sittig – Legal Chief Administrator Jim Morrison introduced himself and the other two presenters and gave his background information, as well as that of Mr. Cohen and Mr. Sittig . He said that Murrysville had an ordinance that regulated the conventional gas industry – the shallow wells. Council was of the opinion that the issue of unconventional well development had to be addressed; a task force consisting of local residents, geologists, biometalists, health & safety people, representatives of the oil and gas industry and legal and local government was put together. The group had the challenge of the 1984 Oil & Gas Act, which regulated the shallow drilling and was inadequate to handle the unconventional well development that was beginning to occur in the state. There was also the challenge of the Municipal Planning Code, which controls local land use and, in particular, Section 603(i), which says that all Municipalities must provide for the reasonable development of mineral resources. Another limitation which the group had to deal with is that approximately 93% of the Municipality is zoned residential. He said that 7% of the land in Murrysville is zoned either business, mixed use or public lands, with the public lands and business district “probably” being equally divided in the percentage of land use. There were two Supreme Court decisions controlling the industry – one involving Oakmont Borough and the other involving Salem Township. Oakmont was successful in defending its right to regulate the location of wells within the community through a conditional use process. Salem Township was challenged because of the regulatory process it put in place that essentially regulated how a developer was able to develop the well site; the developer was successful in that case. The Supreme Court said local government can say where but not how development could occur. The responsibility to regulate would fall on the DEP and other state agencies. Bearing in mind the challenges, the task force looked at many alternatives, working for over a year, and came up with what is known as the Overlay District, with the goal being to try to minimize the impact on the residents and to provide access by horizontal drilling to as much of the area of the community as possible. The group looked at gas transmission lines, roads, steep slopes, floodways and other environmental issues and came up with the proposed Overlay District, which represents approximately 35% of the community and identified the area where development could occur under a conditional use application. He explained that there were four public hearings on the ordinance, all residents in the proposed district were notified of the hearings and two educational sessions were held with experts in several fields making presentations. As a result, Ordinance 833-11, which created the Overlay District, was passed and Mr. Morrison car 10/20/15 Regular Voting Meeting – Thursday, September 24, 2015 gave a brief summary of the Ordinance. He said he was proud to say that portions of the Murrysville Ordinance have been replicated in other areas throughout western Pennsylvania, thanks to the work of local task force in developing the Ordinance. He continued by explaining that Act 13 of 2012 was passed by the State Legislature which limited, among other things, the ability of local governments to regulate oil and gas operations through traditional zoning and planning – in other words, one size fits all; well development can occur in residential areas; other uses, open pits, compressors, other gas development facilities can occur through a very stringent conditional use process. The Act also gave DEP the same authority as the local Zoning Hearing Board, as well as the ability to waive any setbacks from a certain environmental feature. Robinson Township and six other communities challenged Act 13 and the Supreme Court ruled that portions of Act 13, as they pertained to DEP’s ability to waive the setbacks and take local zoning away from local governments, were found to be unconstitutional. Mr. Morrison explained that, in light of the Supreme Court decision and a review of the existing Ordinance 833- 11, Council authorized re-visiting the Ordinance and reconvened the task force in May 2014. The task force met nine times and staff produced three briefings to Council, all of which were public documents; the task force was asked not to produce a draft ordinance, but to present options to be utilized by Council and staff in a review of the current ordinance. Mr. Morrison reviewed the tasks that were developed with the proposed responses and, after much research and discussion, a document was produced. He displayed and discussed maps regarding land use areas, projected growth areas, business districts & the number of structures in the area, zoning districts and density of structures in the areas, overlay district, possible development areas, and known leased properties in Murrysville. Municipal Planner Allen Cohen addressed those in attendance and said that planning and zoning are imperfect and ordinances are made to be amended if circumstances change or certain events happen. He said staff decided to reconvene the task force after the Robinson case came to light because there was some expertise already in place in the Municipality to tap into and to be able to re-examine the assumptions made with the mapping and regulations. He said the process to gauge and evaluate the many different perspectives has been very long, thorough and intense. The premise of the ordinance is first to follow the MPC (Municipal Planning Code), and the procedures in revising the ordinance have exactly followed those stated in the MPC. The Comprehensive Plan was also being developed as the ordinance process started; a section was added to the Comprehensive Plan which addressed the need to evaluate oil & gas issues. He discussed Act 13 and the Robinson case and the best way to approach drilling in Murrysville. The Comprehensive Plan, court cases and task force all were used in revising the ordinance, as well as keeping the parts of the existing ordinance that were defensible, logical and did not need to be revised. He then discussed the ordinance content, which utilized the conditional use process in the overlay. This is a legitimate zoning tool used to address situations that are unique and to go over areas of the zoning map to make sure there were sufficient criteria to evaluate the impacts of the use and ultimately protect the public health, safety and welfare, while allowing the use when it was appropriate. Mr. Cohen then explained setbacks and buffering, which were the main issues on which the task force focused, and were also the subject of public comment. He next discussed the regulatory aspects of the ordinance and said that staff found a tool (Comprehensive Gas Development Plan-CGDP) recommended to be used in the State of Maryland when a driller was applying to the state for a permit. It was tailored to be a requirement of the Municipality, which is not new, since the Municipality already has in its charter a car 10/20/15 Regular Voting Meeting – Thursday, September 24, 2015 requirement for an environmental impact statement for every land development submitted to the Municipality. The CGDP is an extension of the environmental impact statement. The ordinance will require a gas transmission plan, an air emissions plan, an environmental compliance plan and a risk assessment study to be submitted with the application. Compressor stations and processing plants will be moved from the overlay district to the B district as permanent industrial facilities and designated as a conditional use. The intent is to develop an ordinance that is defensible, balanced on the needs of the community and the rights of property owners, and that there is a connection between what is being required and the community’s goals and objectives. He said the proposed ordinance may be changed after public hearings and community input; it may be adopted and then changed in a few years because oil & gas is a very fluid industry in terms of changes in law, technology, best management practices, court cases, etc. Attorney Bill Sittig said that he doesn’t believe there is anything unusual about this particular area of the law, the industry and land use issues, but what is different is the volume and speed, money involved and people impacted. He stated that the issues have been around for a long time and cited the coal mining industry as an example. He said Murrysville has always had the interests of its residents in mind and has vigorously tried to protect the health, safety and welfare of the community, while also considering and trying to accommodate development and legitimate land uses. He said if the Municipality tries to ban drilling, he doesn’t believe that is a defensible and ultimately successful position and a way needs to be found to reasonably accommodate these uses. He discussed the impact of the court decisions in the Robinson Township appeal (including environmental aspects and Environmental Rights Amendment), the validity of the proposed ordinance amendment and a balancing test (overly permissive or improperly restrictive; compatibility of land use; protection of interests of neighboring property owners). COMMUNITY INPUT: Paul Burke of 2801 Pleasant Valley Road, who is the Vice-President/General Counsel for Huntley & Huntley, commented on the fact that the Municipality relied on a study conducted by the State of Maryland when, in fact, there have been no horizontal wells drilled in Maryland in the past 5 years. He noted that he attended a meeting of the Planning Commission, was not told to cut his comments short and was never contacted about future meetings regarding the ordinance. He said his company has made a significant investment in the community and questioned whether the current process is the same as the one used in drafting the existing ordinance. Addressing Council in opposition to moving the ordinance into pending status were: Lisa Wilson, 6390 Italy Road Kathy Baker, 6223 Farm Road Joe Hughes, 3310 Chisnell Lane Mike Hillebrand, 206 Lou Nita Ct. (resident and owner of Huntley & Huntley) – discussed the number of well pads needed based upon the setbacks, regulations and other restrictions Keith Mangini, Petroleum geologist & President of Bow & Arrow Land Company; CEO/President of Huntley & Huntley – asked why representatives were not permitted to sit on task force; their voice deserves to be heard car 10/20/15 Regular Voting Meeting – Thursday, September 24, 2015 Norman Franke, 4816 Sardis Road Vicki Higgins, 6185 Farm Road Grey Valenta, 2649 Haymaker Road Cindy Gesuale and David Gesuale, 3051 Hoy Farm Court Jerianne & Douglas Benish, 2869 Schade Hill Road, Irwin (own 86 acres on Hills Church Road) Alan Swiss, 6505 Hilty Road Bruce Livengood, 6202 Bollinger Road Thomas Peretic, 6525 Italy Road Ben Bruce, 6525 Italy Road Louis Grant, Jr., 114 Bella Vista Court Jennifer Reider, 5900 Kemerer Hollow Road Theodore DeCesare, 2405 Francis Lane Speaking in favor of placing the ordinance into pending status were: Barbara Sims, 3837 Hills Church Road Jean Martin, 3825 Wiestertown Road Ron Slabe, 516 Angelcrest Dr., Upper Burrell (potential Murrysville homeowner) Anita & Chet Smolenski, 3818 Windover Road Dennis Skeers, 3965 Murry Highlands Circle Kristy Trautmann, 4043 Sloanwood Drive Nancy Kenny, 4007 Benden Circle (with some suggested revisions) Alyson Holt, 4830 Primrose Lane Sarah Hough, 6718 Fieldcrest Drive Dominique Ponko, 6123 Farm Road Andrew Hartman, 2314 Country Place Court Susan Stewart-Bayne, 4810 Warner Drive Jennifer Copeland, 3111 Deerfield Court Also signing up to speak, but either passing or leaving early were: Sam Staymates Gary Mills Mark Prucnal Council President Joan Kearns thanked all for their patience, diligence and sharing their thoughts and concerns and then took a short break prior to the Workshop session. car 10/20/15 Regular Voting Meeting – Thursday, September 24, 2015 WORKSHOP ITEMS ADMINISTRATION: 5A. DISCUSSION ON RESOLUTION NO. 653-15 TO BEGIN THE ENACTMENT PROCESS OF DRAFT PROPOSED ORDINANCE NO. 930-15, AN ORDINANCE REGULATING UNCONVENTIONAL OIL AND GAS DRILLING IN THE MUNICIPALITY OF MURRYSVILLE. Chief Administrator Jim Morrison said this is the next step in the process – the culmination of over thirteen months of work at the direction of the task force and Council. He said staff believes they have completed the work as requested by Council and it is now brought forth for consideration. Municipal Planner Allen Cohen reminded everyone that this is a proposed ordinance and this action begins the process under the Planning Code. A draft ordinance has been developed to begin the official enactment process under the MPC, which involves sending it to the County Planning Department and Murrysville Planning Commission for review and comments. No action will be taken by Council and until 45 days after receipt of the draft by the Commission and Planning Department, at which time a public hearing can be scheduled and the process will proceed from there. Councilman Loren Kase commented that the ordinance provides for the health, safety and welfare of the residents, but doesn’t feel that it is produced in a balanced manner. He would like it to be tabled and then try to find a more balanced approach to it in the near future. Councilman Josh Lorenz said he has received numerous communications regarding the ordinance and thanked everyone who took time to e-mail, call and text, and also thanked those in attendance who care enough to voice their concerns. He said that there is a process in place and the process is being followed and, as an attorney, he is confident that the process being followed is a legal and appropriate one. He said he has heard that the perception is that the ordinance is being railroaded through, people have not thought about this all the way through, and there is something underhanded going on. He said that Council and those involved in the process know that is not the case, but he has concerns about the perceptions expressed to him. He said that any ordinance or changes to an ordinance need to be balanced, reasoned and defensible. He said he had not considered the effect the amendments to the proposed ordinance would have on the number of wells being drilled and that’s something that needs to be explored. He had concerns about the leasehold interests and mentioned several issues that would need to be considered in order to determine what could be drilled and where. He believes the ordinance needs to be looked at again, ALL sides need to be heard, and decisions need to be made based upon additional factual information before it is sent on to pending status. Councilman Bill Vance said he came from a very rural background with no zoning, but knows that a community like Murrysville needs zoning regulations. He is a strong believer in property rights and has concerns about the restrictions. He believes the ordinance needs more thought and some of the restrictions are a little extreme. car 10/20/15 Regular Voting Meeting – Thursday, September 24, 2015 Council President Joan Kearns said Council is very cognizant of property and mineral rights and is also aware that some residents may have signed leases for surface, as well as sub-surface, rights. Those issues have been discussed at length; it is not the intent to deprive anyone of the financial gain from leases. She said Council members have received numerous e-mails, many of which contained misconceptions, which is disturbing. She explained that, if the proposed ordinance is moved into pending status, there will be no further public hearing on it for 45 days. However, once it goes to the Planning Commission and the ordinance is on the agenda for discussion, residents can attend the meeting and comment. There was no further discussion on this item. 5B. DISCUSSION ON AUTHORIZING STAFF TO FORWARD A COPY OF DRAFT PROPOSED ORDINANCE NO. 930- 15 TO THE PLANNING COMMISSION FOR THEIR REVIEW AND COMMENT. Mr. Morrison said that, depending on Council’s action on 5A (6A under Action Items), there may be no need to discuss items 5B, 5C and 5D, and suggested moving directly on to the Action Items. 5C. DISCUSSION ON AUTHORIZING STAFF TO FORWARD A COPY OF DRAFT PROPOSED ORDINANCE NO. 930- 15 TO THE WESTMORELAND COUNTY DEPARTMENT OF PLANNING FOR THEIR REVIEW AND COMMENT. 5D. DISCUSSION TO DIRECT STAFF TO SCHEDULE A PUBLIC HEARING ON DRAFT PROPOSED ORDINANCE NO. 930-15 AT SUCH TIME AS SCHEDULED BY COUNCIL AFTER THE STATUTORY 45-DAY COUNTY PLANNING COMMENT PERIOD. COUNCIL ACTION ITEMS ADMINISTRATION: 6A. CONSIDER RESOLUTION NO. 653-15 TO BEGIN THE ENACTMENT PROCESS OF DRAFT PROPOSED ORDINANCE NO. 930-15, AN ORDINANCE REGULATING UNCONVENTIONAL OIL AND GAS DRILLING IN THE MUNICIPALITY OF MURRYSVILLE. Mrs. Kearns moved to approve. Mr. Kepler seconded. Upon a roll call vote: Mr. Perry – yes, but retained the right to recuse himself if this goes to a final vote because of a potential conflict of interest, Mrs. Kearns – yes, Mr. Lorenz – no, Mr. Vance – no, Mr. Kase – no, Mr. Kepler – yes. The vote ended in a tie. Solicitor Kotjarapoglus said that Council will be holding a regular meeting soon, with all Council members present. Mr. Lorenz then moved to table this item to the next meeting. Mr. Kepler seconded. All those present voted aye. The motion to table until the first meeting in October is approved. 6B. CONSIDER AUTHORIZING STAFF TO FORWARD A COPY OF DRAFT PROPOSED ORDINANCE NO. 930-15 TO THE PLANNING COMMISSION FOR THEIR REVIEW AND COMMENT. car 10/20/15 Regular Voting Meeting – Thursday, September 24, 2015 6C. CONSIDER AUTHORIZING STAFF TO FORWARD A COPY OF DRAFT PROPOSED ORDINANCE NO. 930-15 TO THE WESTMORELAND COUNTY DEPARTMENT OF PLANNING FOR THEIR REVIEW AND COMMENT. 6D. CONSIDER DIRECTING STAFF TO SCHEDULE A PUBLIC HEARING ON DRAFT PROPOSED ORDINANCE NO. 930-15 AT SUCH TIME AS SCHEDULED BY COUNCIL AFTER THE STATUTORY 45-DAY COUNTY PLANNING COMMENT PERIOD. ADJOURNMENT: Mr. Kase moved to adjourn. Mr. Kepler seconded. All present voted aye. The Council Meeting concluded at 9:50 p.m. The Regular Voting Meeting was broadcast on local government Channel 19. A true copy of the Council meeting DVD is available for the public to purchase from the Municipality of Murrysville and is in the Murrysville Public Library for review. car 10/20/15