Tag Archive for hydrofracturing

Factions and “Frack-tions”

Image courtesy of sxc.hu

Zoning law has supported municipal power for nearly a century.

The uproar over oil and gas operations isn’t going away, regardless of the result of the Longmont election this November. Since I won’t be filing an “amicus” brief with the court in the COGCC suit, I will release here some of my “secondary batteries.”

The governing body of a home-rule city, in this case the Longmont City Council, has virtually unlimited authority in Colorado to regulate, limit, or prohibit one or more uses of land within it corporate boundaries (or attach conditions to such use or uses). My experience as an urban/regional planner spans some 50 cities and towns, a dozen metro districts, and three dozen counties, nearly all in Colorado. Zoning law and theory have supported this municipal power for nearly a century. What is the reasoning behind this body of (mostly) common law? The answer is, the concept of “nuisance.”

If an owner of a parcel of land in a city wants to, say, process animal hides to make piles of money, he is not likely to get far if his neighbors will endure or will probably – even possibly – endure noxious or dangerous fumes, flows, effluents, vapors, odors, or noises. Normally when the effects of a use of land in this manner fail to cross the operator’s property boundary, everything CAN be fine. But cases exist where even ugliness has defensibly prompted limitations on use(s), and even interruption of sunlight has made the cut. It should be noted that the effects of “fracking” can and do travel across property boundaries, both above the ground (usually by “accident”) and below it (by design).

What makes the petroleum crowd think it can avoid these kinds of precepts and precedent? Just because a previous occupant of the White House gave them a Get-Out-of-Jail-Free card for hydrofracturing, with regard to a few major federal environmental measures enforced by the dreaded and leftist EPA, they must be encouraged – forced, if necessary – to remember that in the final analysis, all politics is local. If that means a “hodgepodge” of regulations evolves, what of it? Some places will likely WELCOME drilling.

In my view, at the core of this contest is one question: does municipal zoning govern only the surface of the land? Or are the subsurface and even the air rights above it also subject to zoning? Anyone who has built or bought a condominium knows or should know that zoned air rights make up what he is selling or building. As for what is below, a gigantic land-use case from the early 1920s is instructive (Pennsylvania Coal Co. v. Mahon). There the court concluded that the owner of the subsurface owed a duty to the surface (emphasis added), and to its owner or owners above, to prevent a loss of support. Loss of support often leads to subsidence (read “sinkhole,” or worse), which can also happen as a result of oil and gas extraction. By very limited and logical, reasonable extension, this landmark decision illuminates the concept – the need – for mineral operations to tread lightly, if at all. Witness provisions in countless U.S. land patents reserving one or more minerals, together with [only] so much of the surface as is required to access the mineral estate (sic). That kind of language places a mineral owner or lessee in the legal position of operating via an easement. Whether a prescriptive (indispensable) easement, or an easement of necessity, is not truly material. Drillers, of course, consider the matter as we now encounter it, to be a true “necessity” and count on our love affair with SUV’s and other motor vehicles, to shelter any and all abuses, accidental or otherwise.

How I wish Colorado or at least its cities would by now have adopted (there’s still time!) the mechanism of a “mineral resource overlay,” as a zoning convention. Such has served states such as the Republican bastion of Wisconsin well. An overlay can operate as a means of exclusion or one for inclusion, generally by “special review” and intensive deliberation. Jefferson County (and not the “socialists over near the Flatirons) studied and considered such an overlay early in the 1970s. A thorough review of Colorado’s Constitution and statutes will reveal that Colorado’s cities enjoy significantly greater powers than do its counties.

Courts may focus on a needle’s eye, but the instant matter is a much broader issue that should receive only the most thoroughgoing consideration. For insurance, let us hope the City of Longmont henceforth includes as a condition of every future plat approval a “Covenant of Non-Development.” Many jurisdictions in Colorado apply and require such a provision; it means no mineral processing or extraction on, in, under, or through the premises forever. There is nothing new or radical there. If a developer or property owner sits atop even a partially severed mineral estate, it is thereby incumbent upon him or her to first “make a deal” with the owner of the subsurface estate PRIOR TO application for development.

It’s only right.