IN ATHENS COUNTY, THE CITIES OF ATHENS AND NELSONVILLE HAVE SUBDIVISION PLANNING JURISDICTION WITHIN THE THREE MILE AREA ADJACENT TO THE CORPORATE LINE

Posted on May 14, 2012 by Ghunter

Ohio Revised Code § 711.09 provides:

(A) (1) Except as otherwise provided in division (A)(2) of this section, when a city planning commission adopts a plan for the major streets or thoroughfares and for the parks and other open public grounds of a city or any part of it, or for the unincorporated territory within three miles of the corporate limits of a city or any part of it, then no plat of a subdivision of land within that city or territory shall be recorded until it has been approved by the city planning commission and that approval endorsed in writing on the plat. If the land lies within three miles of more than one city, then division (A)(1) of this section applies to the approval of the planning commission of the city whose boundary is nearest to the land.

(2) Division (A)(1) of this section does not apply to any unincorporated territory when all of the following conditions are met:

(a) The township in which the territory is located has a zoning resolution covering all the unincorporated territory in the township.

(b) The county in which the territory is located has a county or regional planning commission.

(c) Subdivision regulations other than municipal subdivision regulations are in effect in the county in which the unincorporated territory is located.

When all of these conditions are met, no plat of a subdivision of land in that unincorporated territory shall be recorded until it has been approved by the county or regional planning commission as provided in section 711.10 of the Revised Code.

. . .

(C) The approval of the planning commission, the platting commissioner, or the legislative authority of a village required by this section, or the refusal to approve, shall be endorsed on the plat within thirty days after the submission of the plat for approval or within such further time as the applying party may agree to; otherwise that plat is deemed approved, and the certificate of the planning commission, the platting commissioner, or the clerk of the legislative authority, as to the date of the submission of the plat for approval and the failure to take action on it within that time, shall be issued on demand and shall be sufficient in lieu of the written endorsement or other evidence of approval required by this section. The planning commission, platting commissioner, or legislative authority of a village shall not require a person submitting a plat to alter the plat or any part of it as a condition for approval, as long as the plat is in accordance with the general rules governing plats and subdivisions of land, adopted as provided in this section, in effect at the time the plat was submitted. The ground of refusal or approval of any plat submitted, including citation of or reference to the rule violated by the plat, shall be stated upon the record of the commission, commissioner, or legislative authority. Within sixty days after refusal, the person submitting any plat that the commission, commissioner, or legislative authority refuses to approve may file a petition in the court of common pleas of the proper county, in which the person shall be named plaintiff. The petition shall contain a copy of the plat sought to be recorded, a statement of the facts justifying the propriety and reasonableness of the proposed subdivision, and a prayer for an order directed to the recorder to record the plat and may include a statement of facts to support a claim that the rules of the planning authority under which it refused to approve the plat are unreasonable or unlawful. The planning authority refusing to approve the plat and the recorder of the county shall be joined as defendants and summons shall be issued upon those defendants as in civil actions. Within the rule day provided for a civil action, the planning authority may file an answer in which it may set forth a statement of the facts justifying its refusal to approve the plat, a copy of its rule under which it refused to approve the plat, and a statement of the facts supporting the reasonableness and lawfulness of that rule. The court shall hear the matter upon such evidence as is introduced by either party and the planning authority may introduce as a part of its case a complete transcript of any proceedings had before it. Any detail of the plat may be modified upon motion of the plaintiff before the cause is submitted to the court. If the court finds that the prayer for the recording of the plat or any modification of it as may be agreed to or proposed by the plaintiff, is supported by a preponderance of the evidence, it shall enter an order directed to the recorder to record the plat as originally submitted or as agreed to be modified. Otherwise, the petition shall be dismissed. The court shall return a separate finding upon the reasonableness and lawfulness of the refusal to approve the plat or upon the reasonableness and lawfulness of the rule under which the planning authority refused to approve the plat or both, as the case may require. The judgment or order of the court may be appealed by either party on questions of law as in other civil cases.

The planning commission, platting commissioner, or legislative authority of a village may adopt general rules governing plats and subdivisions of land falling within its jurisdiction in order to secure and provide for the coordination of the streets within the subdivision with existing streets and roads or with the plan or plats of the municipal corporation, for the proper amount of open spaces for traffic, circulation, and utilities, and for the avoidance of future congestion of population detrimental to the public health or safety but shall not impose a greater minimum lot area than forty-eight hundred square feet. The rules may provide for their modification by the planning commission in specific cases where unusual topographical or other exceptional conditions require the modification. The rules may require the county department of health to review and comment on a plat before the planning commission, platting commissioner, or legislative authority of a village acts upon it and may also require proof of compliance with any applicable zoning resolutions as a basis for approval of a plat.

However, no city or village planning commission shall adopt any rules requiring actual construction of streets or other improvements or facilities or assurance of that construction as a condition precedent to the approval of a plat of a subdivision unless the requirements have first been adopted by the legislative authority of the city or village after a public hearing. The rules shall be promulgated and published as provided by sections 731.17 to 731.42 of the Revised Code, and before adoption a public hearing shall be held on the adoption and a copy of the rules shall be certified by the commission, commissioner, or legislative authority to the county recorder of the county in which the municipal corporation is located.

In the exercise of any power over or concerning the platting and subdivision of land or the recording of plats of subdivisions by a city, county, regional, or other planning commission pursuant to any other section of the Revised Code, the provisions of this section with respect to appeals from a decision of a planning commission apply to the decision of any such commission in the exercise of any power of that kind granted by any other section of the Revised Code in addition to any other remedy of appeal granted by the Revised Code. When a plan has been adopted as provided in this section, the approval of plats shall be in lieu of the approvals provided for by any other section of the Revised Code, so far as territory within the approving jurisdiction of the commission, commissioner, or legislative authority, as provided in this section, is concerned. Approval of a plat shall not be an acceptance by the public of the dedication of any street, highway, or other way or open space shown upon the plat.

In Athens County the provisions of A(2)(b) & (c) are met, however, the provisions of A(2)(a) is not met since there is no township zoning. Therefore, the cities of Athens and Nelsonville which have subdivision regulations, have subdivision planning jurisdiction within the three mile area adjacent to their respective corporation lines.  The three mile maps are below.

Athens 3-Mile Boundary Map

Nelsonville 3-mile Map[1]

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DON’T SIGN AN OIL & GAS LEASE WITHOUT CONSULTING AN ATTORNEY

Posted on May 7, 2012 by Ghunter

For years, I have been reviewing oil and gas lease submitted to landowners. Some times before the lease is signed and sometimes after the lease is already signed and problems have occurred. Unfortunately, my review as an attorney, after the lease is signed is only good as a confirmation of the bad deal a landowner has made. My advice is don’t sign an oil and gas lease without consulting an attorney. The cost is not cheap, ranging usually from $300 to $500, and it can be more since reviews are done on an hourly basis. A bad deal can cost the landowner tens of thousands of dollar, and with the Marcellus and Utica drilling this cost could multiply. Simply consider prior to Marcellus and Utica leases, oil and gas leases in Southeastern Ohio were going for $5 to $10 per acre for the signing, with a delay rental in the same amount, and a 1/8th royalty if a production well was drilled.

A landowner had my office review an oil and gas lease recently. This oil and gas lease is the worst lease I have ever seen from a landowner’s perspective. Here is what the lease said:

1. Title: Oil and Gas Lease (PAID-UP). Paid-up means there is no annual delay rental.
2. Lease amount. $10. THAT’S IS; not even $10 per acre, and this amount would be very low considering Marcellus and Utica leases are going at $2,500 per acre and up. Very old leases prior to Marcellus and Utica were going between $5 per acre to $10 per acre.
3. The lease was exclusive meaning it belongs only to leasing company.
4. Right was given to do vertical and horizontal operations meaning lease included traditional exploration and the new Marcellus and Utica drilling.
5. Landowner’s property could be used for storage.
6. Right was given to construct pipelines, telephone lines power and electric lines, tanks, roadways, plants, equipment, and structures on land without further compensation.
7. Five year lease without delay rental, and for as much long as exploration continues OR PROPERTY IS BEING USED FOR STORAGE.
8. If there is a producing well, Oil and Gas Company can elect instead of paying the 1/8th royalty to sell the landowner’s gas or oil and then subtract costs like gathering, treating, processing, blending, marketing, compression, dehydration, transportation, removal of liquid or gaseous substances, and/or removal of impurities of or from the affected oil and gas, and costs of any activities associated with making the oil and gas ready for movement, sale or use. You can just imagine what net royalty the landowner would receive.
9. If property is used for storage a fee of $5 per acre would be paid in lieu of delay rental or any other fees.
10. If a dry hole is drilled, no delay rental.
11. If a producing well is shut-in, no royalty is paid and only $10 per acre per net royalty acre is paid to keep the lease in effect.
12. Landowner’s property can be pooled with other property.
13. Oil and Gas Company can use water for production for landowner’s property.
14. Landowner must guarantee ownership of oil and gas rights to property; usually a mineral title search is done by Oil and Gas Company. This type of title search can cost thousands of dollars since it is hard to do and usually done on an hourly basis.
15. Landowner warrants that title is clear and will defend Oil and Gas Company from claims against the mineral interest. Could be very expensive for landowner.
16. Oil and Gas Company has right to construct pipeline on property without compensation. This is usually a separate agreement with separate compensation.
17. Oil and Gas Company gets a right of first refusal on Landowner’s property.

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DRILLING FOR OIL AND GAS IN THE MARCELLUS AND UTICA SHALES OF SOUTHEASTERN OHIO

Posted on December 26, 2011 by Ghunter

The Marcellus and Utica Shales extend across many states including Ohio, New York,
Pennsylvania, Maryland, and West Virginia.  Located between 7,000 and 12,000 feet deep, they are important geologically because they hold large quantities of natural gas in the United States.

The Shales are purported to contain enough natural gas to satisfy the demands of the United States for fourteen years[1].  The shale itself is a fine grained sedimentary rock which is formed when quartz and clay minerals get compacted by the pressure of the Earth’s surface.[2] Over the years, new drilling techniques have been developed that allow corporations to extract the gas at a greater retrieval rate.

The extraction process is a two step process in which the shale is penetrated thousands of feet horizontally and fractured hydraulically. Horizontal drilling considered less disturbing to the natural environment than the fracturing process.[3] The process involves drilling vertically to just above the shale, then the drill makes a 90 degree turn gradually and drills horizontally for up to 3000 feet.[4]  This means the well begins to curve gradually and results with a well which runs sideways, away from the surface location.[5]  A thick steel pipe is placed in the hole and sealed with cement on the outside of the pipe, a second string of steel pipe is run inside the first and more cement is added to provide a better seal.[6] Horizontal wells were originally used to intersect multiple natural fractures within the
rock which would be located in the horizontal section.[7]  In Shale drilling the shale can be fractured hydraulically, creating large spaces in which gas can be withdrawn. This
maximizes the amount of gas which can be captured.

The hydraulic fracturing process is achieved by injecting water, sand, and chemical
additives to the well at high pressures, which fractures the shale and enables  the extraction of the gas reserves.  Problematic to the process is the fact that it takes up to four million  gallons of fresh water to fracture a well. This water is taken from local  streams, reservoirs, lakes, and water plants near the drilling site.[8]  Fifteen to twenty percent of this water is forced back to the surface around  seven to ten days after it is injected.[9]  This water is known as “frac water” and it  contains iron, bacteria, suspended solids, and other contaminants.[10]  “Frac water” must be disposed in a solid waste landfill or reused in the  fracturing process, and is subject to the EPA’s water quality certification
process.[11]

[1] “Drilling for Natural Gas in the Marcellus and Utica Shales: Environment Regulatory Basics.”  (November 2011), Located at: http://www.epa.ohio.gov/shale.aspx,

[2]  “The Facts About Natural Gas Exploration of  the Marcellus Shale.”  Located at: http://www.marcellusfacts.com/pdf/homegrownenergy.pdf.

[3] Id.

[4] Id.

[5] O’ Donohue, Kelvin.  “The Advantages of  Horizontal Drilling Technique Over Other Methods of Drilling.”  Located at: www.ehow.com/print/info_8326784_advantages-over-ther-methods-drilling.html

[6] “The  Facts About Natural Gas Exploration of the Marcellus Shale.”  Located at: http://www.marcellusfacts.com/pdf/homegrownenergy.pdf.

[7] O’ Donohue, Kelvin.  “The Advantages of  Horizontal Drilling Technique Over Other Methods of Drilling.”  Located at: www.ehow.com/print/info_8326784_advantages-over-ther-methods-drilling.html

[8] “Drilling  for Natural Gas in the Marcellus and Utica Shales: Environmental Regulatory Basics.”  (July 2011) Located at: www.epa.ohio.gov/portals/o/general%20pdfs/general/shale711.pdf.

[9] Id.

[10] Id.

[11] Id.

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