Council of the Municipality of Murrysville

Regular Voting Meeting – Wednesday, February 1, 2017 Council of the Municipality of Murrysville held a Regular Voting Meeting on Wednesday, February 1, 2017 at 7:00 p.m. in the Municipal Building. Present at the meeting were Council members Tony Spadaro, Loren Kase, Joan Kearns, Jamie Lee Korns, Jeffery Kepler, David Perry, and Josh Lorenz. Also present were Mayor Robert Brooks, Chief Administrator James R. Morrison, Solicitor George A. Kotjarapoglus, Finance Director Diane Heming, and Municipal Engineer Joe Dietrick. MAYOR BROOKS WELCOMES THE BOY SCOUTS Mayor Brooks welcomed Scouts from Pack 207, Troops 208, 205, 213, and Crew 220 to be recognized during National Scout Month. Each Scout introduced him/herself, identified the Pack/Troop/Crew and told what he/she liked best about Scouting. Jim Douglas, Executive Director for the Westmoreland/Fayette County area, gave an overview of Scouting in Murrysville (2 Cub Scout Packs; 3 Boy Scout Troops; 2 Venture Crews) and talked about how Scouting helps develop character in young people. He advised that there were 7 Eagle Scouts in Murrysville last year which resulted in seven projects, including installation of flag poles and walkways, and that each project requires at least 100 hours of community service. Following roll call, the Scouts advanced with the colors and led everyone in the Pledge of Allegiance. REGULAR VOTING MEETING AGENDA UNISTED AMENDMENTS: Under Council Action Items – Administration – ADD Item No. 13C – Consider Authorization to Advertise Ordinance No. 968-17, an Ordinance Granting to Dominion Transmission, Inc. an Easement for the Purpose of Installing One Gas Pipeline on a Portion of One tract of Municipal Lands Comprising a Part of the Murrysville Community Park for the Payment of $81,000. Under Executive Session – ADD Item No. 19A - Executive Session to discuss a Personnel Matter. Mr. Kase moved to approve the agenda as amended. Mr. Spadaro seconded. All present voted aye. Motion approved. CONSENT CALENDAR ITEMS: None. COMMUNITY INPUT: Forty-one members of the community addressed Council on the pending oil and gas ordinance. Sign-in sheets with names and addresses are on file at the Municipal Office with the minutes of this meeting. Several speakers also provided written copies of their presentations, which are also on file with the minutes. car 2/23/2017 Regular Voting Meeting – Wednesday, February 1, 2017 WORKSHOP ITEMS ENGINEERING: 10A. DISCUSSION ON THE ROBERTS PARCEL PARKING LOT. Municipal Engineer Joe Dietrick explained that staff is working on putting in the trailhead parking lot at the site of the Roberts property and presented some views of the property, the intended lot, materials to be used for the lot (pervious asphalt) and the proposed restroom facility. Mr. Morrison elaborated on the restroom facility and the cost to put an addition on to be used as a welcome center (approx. $90,000-$125,000, depending on the model selected). Mr. Dietrick further explained that staff is limited as to where the facility can be placed on the site and still comply with handicap accessibility requirements. A kiosk will also be placed on the site and staff is looking at a few different designs. The goal is to bid the project in early March. Mr. Morrison reminded Council that an agreement was signed with the County for $100,000 to develop the site; because the funds are passing through the County, it will bid the parking lot work and the Municipality will be responsible for the restroom and also development of the trail from Tanglewood Way, across the highway, to the site. Mr. Kase asked if staff considered the option of having someone come in, pour the concrete pad and build the restrooms. Mr. Morrison said that was considered; however, the building will be right on the highway and no one knows what will happen in the building during the day so staff wanted a very low maintenance facility. He mentioned the concrete walls, stainless steel commodes and sinks, etc. He noted, as a point of reference, the pavilion at the Wetlands that was built about 10 years ago cost around $110,000. Additionally, because the trail will be used all year, staff wanted it to be a year-round facility. Council will have to make a decision on the visitor’s center prior to the parking lot work because a tractor won’t be able to get into the site once that work is done. This item will be discussed further at the next Council meeting. COUNCIL - ACTION ITEMS ADMINISTRATION: 13A. CONSIDER APPROVAL TO ENGAGE PIPER JAFFRAY AS THE UNDERWRITER FOR THE REFUNDING OF THE PEMA LOANS, REFUNDING OF THE SERIES OF 2012 AND SERIES OF 2011 NOTE AND POSSIBLE NEW MONEY AND/OR RESTRUCTURING OF BONDS. Mrs. Lee Korns moved to approve engaging Piper Jaffray. Mr. Spadaro seconded. Finance Director Diane Heming explained that staff consulted with bond counsel to help determine whether it would be feasible to refinance the PEMA loans and the existing loan for two fire trucks purchased in 2012. The interest rates were dropping significantly in late 2016 and staff would like Council’s approval to contract with Piper Jaffray (with no fees involved) to go through with the borrowing. The firm needs an engagement letter, with Council’s approval, to access the Municipality’s data in order to present a good bond rate and work with staff to determine if the project is feasible. Mr. Morrison said this is being fast-tracked because rates appear to be ready to go up. There were no questions from Council. car 2/23/2017 Regular Voting Meeting – Wednesday, February 1, 2017 Upon a roll call vote: Mr. Spadaro – yes, Mr. Kase – yes, Mrs. Kearns – yes, Mrs. Lee Korns – yes, Mr. Kepler – yes, Mr. Perry – yes, Mr. Lorenz – yes. Motion approved. 13B. CONSIDER AUTHORIZATION TO ADVERTISE ORDINANCE NO. 967-17, AN ORDINANCE AMENDING ORDINANCE NO. 857-12 TO AMEND THE COMPETITIVE BIDDING PROCEDURES. Mr. Kepler moved to advertise the ordinance. Mrs. Lee Korns seconded. Ms. Heming explained that the change is being made because new rates have been issued by the State. The limits would be increased for written and verbal quotes, as well as RFPs. The policy will then be updated and determined at a later date if it needs to be adjusted again. Upon a roll call vote: Mr. Spadaro – yes, Mr. Kase – yes, Mrs. Kearns – yes, Mrs. Lee Korns – yes, Mr. Kepler – yes, Mr. Perry – yes, Mr. Lorenz – yes. Motion approved. 13C. CONSIDER AUTHORIZATION TO ADVERTISE ORDINANCE NO. 968-17, AN ORDINANCE GRANTING TO DOMINION TRANSMISSION, INC. AN EASEMENT FOR THE PURPOSE OF INSTALLING ONE GAS PIPELINE ON A PORTION OF ONE TRACT OF MUNICIPAL LANDS COMPRISING A PART OF THE MURRYSVILLE COMMUNITY PARK FOR THE PAYMENT OF $81,000. Mr. Kepler moved to advertise the ordinance. Mr. Kase seconded. Mr. Morrison explained that this is an expansion of an existing right-of-way; Dominion has two lines currently installed and it is proposing a third line. There were no questions from Council. Upon a roll call vote: Mr. Spadaro – yes, Mr. Kase – yes, Mrs. Kearns – yes, Mrs. Lee Korns – has a family connection to Dominion and, although she has no knowledge of the dealings with this particular easement, she is recusing herself but reserves the right to vote on Dominion issues in the future, Mr. Kepler – yes, Mr. Perry – yes, Mr. Lorenz – yes. Motion approved. ENGINEERING: None. PUBLIC WORKS AND PARKS: 15A. CONSIDER APPROVAL OF AN OVERSEEDER FOR USE AT MURRYSVILLE COMMUNITY PARK. Mrs. Lee Korns moved to approve the purchase of a slit seeder attachment from the State Costars cooperative purchasing program in the amount of $12,996 with funds from the capital reserve fund surplus equipment sales revenue. Mr. Spadaro seconded. Mr. Morrison explained that that this is a continuation of the maintenance program. The fields at MCP get a lot of use and to try to maintain the quality of the turf and get the seasonal planting done appropriately, this piece of equipment will aid in doing that. It was recommended by the turf specialist that the Municipality uses for the fields. car 2/23/2017 Regular Voting Meeting – Wednesday, February 1, 2017 Upon a roll call vote: Mr. Spadaro – yes, Mr. Kase – yes, Mrs. Kearns – yes, Mrs. Lee Korns – yes, Mr. Kepler – yes, Mr. Perry – yes, Mr. Lorenz – yes. Motion approved. COMMUNITY DEVELOPMENT: 16A. CONSIDER APPROVAL OF AUTHORIZATION TO ADVERTISE ORDINANCE NO. 930-15, AN ORDINANCE AMENDING THE ZONING ORDINANCE REGULATING OIL AND GAS DRILLING, AND ORDINANCE NO. 955-16, AN ORDINANCE AMENDING THE SUBDIVISION AND LAND DEVELOPMENT ORDINANCE, AND AUTHORIZING STAFF TO FORWARD THE ORDINANCE TO THE WESTMORELAND COUNTY DEPARTMENT OF PLANNING, THE MURRYSVILLE PLANNING COMMISSION, AND ADJACENT MUNICIPALITIES FOR THEIR 45-DAY REVIEW. Mrs. Lee Korns moved to go into Committee of the Whole; Mr. Perry seconded. Mr. Morrison presented Council with a copy of the proposed ordinance after staff had gone through with a final review with Mr. Sittig. There were some minor changes (spelling, redundancies, clarifications, etc.). The two issues for review at this meeting are the setbacks in the ordinance and the inclusion of the Environmental Rights Amendment language in the SALDO. He explained that the Environmental Impact Statement is an information-gathering process to evaluate the conditional use; the conditional use means that it is a permitted use where Council may apply reasonable conditions and the Environmental Impact Statement is one source of information presented as part of the conditional use hearing for Council to evaluate. When an application is submitted, whether it is for a subdivision or other land development activity, there is a checklist used to determine whether the Environmental Impact Statement is applicable. Mr. Morrison said that the original pending ordinance proposed a setback of 1,000 feet; when Council authorized to advertise the pending ordinance to start the process, it was reduced to 800 feet; and at the last meeting, as a compromise to move forward, language was inserted which proposes 700’ (within that 700’ is 400’ “sanctuary area” and 300’ ancillary use). Mr. Kase said Council has focused on protecting the structure and measuring from the structure: setbacks from the structure, structure to the well pad, etc. In the document (page 10, item 7C), there is reference made to “…well pad located less than 200’ from any property line….” He believes using that terminology will complicate things and add too many variables. Mr. Perry said that Council discussed 700’/400’ with no additional layer. Mrs. Kearns reminded everyone that the 700’/400’ was agreed as placeholders until a resolution could be reached. Mr. Kase suggested that 7C be deleted. Mr. Morrison brought out the maps previously produced showing setbacks of 500’, 750’, 800’ and 1200’. The maps represent consideration of all the setbacks, whether they be from parks, flood plains, DEP setbacks, and all were regenerated from a fixed point, which was a 911 location. He said as a reference, Murrysville is 37 square miles, which translates roughly into 24,000 acres, and the overlay district represents approximately 8,000 acres. Mrs. Lee Korns said she has had several residents question the definition of “access road,” specifically in item 7D “…sterile zone includes but is not limited to any access road.” Mr. Morrison said the access road is like a driveway to the site which would be developed by the pad and would not be any of the Municipality’s public roads. car 2/23/2017 Regular Voting Meeting – Wednesday, February 1, 2017 Mr. Kepler said Council owes the residents an explanation of the advantage reducing the number provides for the residents of Murrysville? Mr. Perry said in discussions with knowledgeable attorneys, he asked about the fundamental difference between a 700’ and an 800’ setback from a concern with being sued. The response he got was there is no functional difference – he will either lose at 700’ on our ordinance or he will lose at 800’. There is no difference, from the attorney’s perspective, as to how that would be defended, but it’s a big difference to a resident that has to be next to a pad. He believes it’s irresponsible to go to 700’ setback. He said Murrysville is a bedroom community with a school district; it offers no other amenities than a rural area and a great place to live. If that starts to get destroyed, Murrysville will lose that character. Council heard from three different realtors as to what will happen if Murrysville is known as a community that is very liberal towards fracking. Mr. Kepler said he has been actively seeking input on this issue for at least 7 years and firmly believes that the majority of residents want more setbacks. He doesn’t believe it’s party related, but rather is related to either who directly owns leases or whose family members hold leases or are biased towards it. He also noted that the argument is pointed toward the ability of Huntley to do the drilling and to do it safely, but there is no guarantee that Huntley will have the lease and do the drilling. There is an increased number of other industries coming in and buying oil and gas assets. There may be a company that comes in and doesn’t care about Murrysville at all and Council has to provide protection for those people who do not hold their leases. As far as the topography being exclusionary, that has been discussed and companies have had 7 years to bring evidence; he believes it is a fear tactic. The fact that the ordinance contains a clause allowing residents to waive the setback provides a balanced approach to the ordinance, but the residents who don’t own the rights don’t have any ability to have a say in the argument. Council, as elected officials, has to protect those people. Mr. Kepler said he was willing to go to 800’ setback as a compromise, but personally feels it should be 1200’. Mrs. Kearns said that she will not vote for anything less than 800’. Mr. Perry said if Council wants to stay at some lesser distance, the integrity of the community will be compromised – perceived, real, not real, false – the perception is that people do not want to live near fracking pads, whether it’s safe or not. There is a lot of conflicting data but it doesn’t matter what the data says – it’s what people believe. Mr. Lorenz explained that the state minimum is 500’ from the bore hole. Council is proposing a distance from the edge of the well pad – not the bore hole – so when talking about a number it’s only fair to recognize that it is only a minimum of 100’-150’ between the edge of the well pad and the bore hole. Mr. Perry explained how the Legislature decided on the 500’ state minimum and noted that it was a political decision and that the majority of the important parts of Act 13 related to the protection of the character of the community got tossed. Mrs. Lee Korns commented on Mr. Kepler’s mention of no compromise and said that measuring from the edge of the well pad instead of the bore hole is a compromise, as well as the sterile zone to protect residents. She believes that Council is putting protections into place, particularly with the sterile zone and measuring from the well pad. car 2/23/2017 Regular Voting Meeting – Wednesday, February 1, 2017 Mrs. Kearns said it is Council’s responsibility to protect the residents of the community while allowing for unconventional drilling to occur. Mr. Kepler said that a good decision is one where neither group is being satisfied and there is no bias one way or the other. Mr. Perry said he leased a portion of his property 10 years ago, lived through the drilling of shallow wells, and would not do it again. If he had to listen to the noise from Marcellus drilling for 1-2 years, he would probably have to go to a hotel. Paul Burke of Huntley & Huntley explained that the first stage – development of the well pad – would take approximately 30 days; drilling the vertical hole takes about 1 day for each hole; horizontal drilling would run about a week to ten days for each hole; fracking would take one week to ten days for each hole. The process is not a constant activity, but is done is stages, so the total time is between six and nine months for a well. Since the work is done in stages, the total time of actual activity (drilling & fracking) on the pad is a few months. After further discussion, Council voiced their individual opinion on the distance: Mrs. Lee Korns – 750’ from the edge of the well pad to the protected structure/350’ for the “sterile zone” Mr. Spadaro – 750’/350’ Mr. Perry – 800’/350’ Mr. Lorenz – 750’/350’ Mrs. Kearns – 750’/400’ Mr. Kase – 750’/350’ Mr. Kepler – 800’/300’ Regarding the SALDO, Mr. Perry would like it to stay as is and is non-negotiable in his opinion. Mr. Lorenz asked for an explanation of the reason and intent of having the Environmental Rights Amendment language in the SALDO. Mr. Morrison said that, after working on this for so long and knowing what he now knows, his opinion is that he wouldn’t have put the ERA language in the SALDO because it is a redundancy. When an application for conditional use is submitted, appropriate documents and evidence regarding the ERA will be presented to Council for consideration, evaluation and approval. That being said, he doesn’t think it makes a difference whether the ERA is in the SALDO or not because Council has the obligation to meet the requirements of the law as it is stated. Mr. Perry disagreed and said that the ERA allows Council, as a community, to make a decision as to how the applicant is doing best management on noise practices. There is no other way to do that absent the language in the ordinance; if it’s not in the ordinance Council no longer has the ability to ask those types of questions. Mr. Morrison said there is clear case law when testing to meet the threshold of the ERA; secondly, the environmental impact statement is the challenge to the applicant to provide the information necessary for Council to evaluate the application as to whether it meets the test. Mr. Lorenz said it is his understanding that the inclusion of the language in the ordinance is to serve as an information gathering vehicle for the Municipality to look at development. His opinion is that the vehicle is already included, not in the SALDO, but in the current Oil and Gas Ordinance. Section VI(B)(3) requires any applicant to submit to the Municipality anything that they would have to file with the DEP, EPA, or any other State or Federal regulator. Any application to the Municipality, under the ordinance as presently drafted, would be deemed incomplete unless and until any such information or filings that had been filed with DEP, EPA or the state were also filed with the Municipality. Mr. Lorenz further explained that the SALDO is not unique to the oil and gas industry, but is applicable to any development requested in the Municipality and some developer might, in the future, challenge a development on that basis simply because he may not agree with it. He doesn’t know if putting the EPA in the SALDO is the best use of the Municipality’s legislative resources. For those reasons, he is not in favor of including the ERA in car 2/23/2017 Regular Voting Meeting – Wednesday, February 1, 2017 the SALDO. Mr. Morrison explained that there was legislation passed in Murrysville that created the Home Rule Charter. The Charter specifically requires an environmental impact statement, which in unique to Murrysville. That is why Murrysville has an EAC and Planning Commission and why it goes through the review process, because it is incumbent upon staff and elected officials that any time a development proposal comes forward it is tested and information provided with an environmental impact statement. Solicitor Kotjarapoglus stated that Mr. Lorenz brought up a valid point in that if a new requirement is created in the subdivision ordinance, a developer can come in with a wonderful commercial or residential development and there may be some residents that disagree and can challenge Council’s approval of the plan for non- compliance with the new requirement added to the SALDO. The Solicitor said his concern is that Council will be getting information as part of the oil and gas application that they need to address the constitutional environmental considerations. By getting the information, Council is not putting the burden on the applicant to ensure he is complying with the constitution requirement. If the applicant provides the information and Council finds it insufficient, Council can ask for more and make a determination based on the information provided; if there is a problem, Council will have to deny the conditional use approval. Following discussion on clarification of the setback numbers, Mr. Perry proposed 800’/350’ and removing the ERA language from the SALDO. Mr. Kase said, although the comments were very well stated and he believes the ERA shouldn’t be in the SALDO, he doesn’t believe that should be a negotiating point on the setbacks. Mr. Lorenz proposed 750’/350’ and removing the ERA from the SALDO. Mr. Morrison explained that when the overlay district was created, one of the objectives was to keep that zone away from any developed area in the community that would be impacted. In looking at the maps and the green area, he believes that the closest subdivision to the closest point of the pad area is over 1200 feet. The odds of the pad being 800’ or 1000’ from an individual structure are great. Mayor Brooks said that the 750’ and 800’ maps almost mirror each other and there is very little difference between the two. He suggested 800’/400’ and be done with it. Mrs. Kearns reminded everyone that property owners have the ability to waive the setback. Solicitor Kotjarapoglus noted that if a company appeals Council’s decision and it goes up, a 7-0 vote of Council would be great; Mr. Sittig could do a good job if it’s a 6-1 vote; but if it’s a 4-3 vote, Mr. Sittig would have to defend an argument that Council was divided, so it will impact his ability to defend to a minor degree. Mr. Kase said several people have told him not to legislate in fear of a lawsuit. Mr. Perry said, when it comes down to it, Council members are compromising to avoid litigation and he doesn’t see any risk with a 7-0 vote but does with a 4-3 vote. Mr. Perry moved to come out of Committee of the Whole. Mr. Kase seconded. All present voted aye. Motion approved. Mr. Lorenz moved to advertise Ordinance No. 955-16, an ordinance amending the Subdivision and Land Development Ordinance, also known as the SALDO, and authorize staff to forward the ordinance to the Westmoreland County Dept. of Planning, the Murrysville Planning Commission and adjacent municipalities for car 2/23/2017 Regular Voting Meeting – Wednesday, February 1, 2017 their 45-day review. The motion will also include removal of the Environmental Rights Amendment language. Mr. Kase seconded. Upon a roll call vote: Mr. Spadaro – yes, Mr. Kase – yes, Mrs. Kearns – yes, Mrs. Lee Korns – yes, Mr. Kepler – no, Mr. Perry – no, Mr. Lorenz – yes. Motion approved by a 5-2 vote. Mrs. Lee Korns moved to advertise Ordinance No. 930-15, an ordinance amending the zoning ordinance regulating oil and gas drilling with amendments and revisions to change section 7A of the ordinance to 750 feet from the nearest attached portion of the protected structure; to remove section 7C with regard to no permanent facility area well pad within 200 feet of any portion of the property line; and to amend section 7D to 350 feet from the nearest attached portion of the protected structure. Mr. Spadaro seconded. After a brief discussion, Mr. Kepler moved to amend the motion to increase the distance from 750 feet to 800 feet. Mr. Lorenz seconded. Upon a roll call vote: Mr. Spadaro – no, Mr. Kase – no, Mrs. Kearns – yes, Mrs. Lee Korns – no, Mr. Kepler – yes, Mr. Perry – yes, Mr. Lorenz – no. Amended motion failed by a 4-3 vote. On the original motion, upon a roll call vote: Mr. Spadaro – yes, Mr. Kase – yes, Mrs. Kearns – no, Mrs. Lee Korns – yes, Mr. Kepler – no, Mr. Perry – no, Mr. Lorenz – yes. Motion approved by a 4-3 vote. OLD BUSINESS: None. NEW BUSINESS: None. EXECUTIVE SESSION: Council adjourned to an Executive Session at 11:10 p.m. to discuss a Personnel Issue and reconvened at 11:26 p.m. There was no action coming out of the session. ACTION ITEMS: None. ADJOURNMENT: Mrs. Lee Korns moved to adjourn. Mr. Kase seconded. All present voted aye. Motion approved. The Council Meeting concluded at 11:26 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 2/23/2017