Motion-Secondary: SMITH FAMILY TRUST VS CITY OF HUDSON BOARD OF BUILDING AND

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IN THE COURT OF COMMON PLEAS ° HOBRIGNY
SUMMIT COUNTY, OHIO 2007
AUC IS AK 9)
SUMMIT Cc
SMITH FAMILY TRUST, ) CASE NO. 2007 05 36: LERK QF COUD;e
Appellant, ) JUDGE JUDITH HUNTER
v. )
AFFIDAVIT AND BRIEF IN SUPPORT
CITY OF HUDSON BOARD OF ) OF APPELLANT’S MOTION TO
ZONING ANP BUILDING APPEALS INTRODUCE ADDITIONAL EVIDENCE

Appellee,

Now comes Appellant, Smith Family Trust (“Trust”), by and through counsel, and
respectfully moves this Court to permit Appellant’s filing instanter the. Affidavit of
undersigned counsel in support of Appellant’s Motion to Introduce Additional Evidence and
request for a Hearing, which was filed with this Court on July 19, 2007. Through
inadvertence, the Affidavit was not filed at that time; however, Appellant believes that the

interests of justice will be served hereby and will cause no undue prejudice to Appellee.

Respectfully submitted,

hw Erwerttr Aref

‘aren Edwards-Smith (0042882)
17888 Snyder Road

Chagrin Falls, Ohio’ 44023

Tel: 330-329-5003

Fax: 440-543-6532

Email: KarenSmith54@adelphia.net
Counsel for Appellant, Smith Family TrustAFFIDAVIT OF KAREN EDWARDS-SMITH

STATE OF OHIO COUNTY }
COUNTY OF GEAUGA } ss

Karen Edwards-Smith, being first duly swom, states, upon personal knowledge and information,
as follows:

1. That Affiant is duly licensed to practice law in the State of Ohio;

2. That Affiant prepared the pleading captioned Appellant’s Motion to Introduce
Additional Evidence;

3. That to Affiant’s best knowledge and belief the facts, circumstances and legal bases upon
which the Motion has in good faith been made are true,

That Further Affiant saith not.
How (udastl Ld

Karen Edwards-Smith

State of Ohio
County of Geauga

Before me, a notary public in and for G foes County, came the affiant Karen
Edwards-Smith, on August 13, 2007, who stated that the’ contained in this affidavit are true

upon affiant’s own knowledge.

SHVETA BAAN hla
Notary Public, State
My Commisgion Expires June 27,2010COPY

BRIEF

Summit County Court of Common Pleas Local Rule 19 governs appeals to the Court of
Common Pleas from administrative agencies pursuant to R.C.§ 119.12 and RC. Chapter
2506. Appellant timely filed a Motion to Introduce ‘Additional Evidence on July 19, 2007.
Appellee filed the transcript of proceedings with the Court on July 2, 2007. The certificate of
service attached to the Notice of Filing of the Transcript states that “a copy of the foregoing
Notice of Filing Transcript of Proceedings was placed in the USS. Mail, postage prepaid, this
2" day of July, 2007.”

Local Rule 19.4 provides that a motion to supplement the record shall be within
fourteen days after the filing of the record. Civ. R. 6(A) provides “in computing any period
of time prescribed or allowed by the local rules of any court ... the date of the act ... from
which the designated period of time begins to run shall not be included.” Further, Civ.R. 6(E)
provides “whenever a party has the right or is required to do some act... within a prescribed
period after the service of a notice or other paper upon him and the notice or paper is served
upon him by mail, three days shall be added to the prescribed period.” Thus, Appellant’s
filing of a Motion to Introduce ‘Additional Evidence on July 19, 2007 was timely filed as it
was filed within seventeen days.

Rule 19.04, which pertains to administrative appeals, requires an affidavit to support
the request for additional evidence, specifying the nature and type of additional evidence to
be submitted and reasons therefore. Through inadvertence, the Affidavit was not attached to
the pleading. Accordingly, Appellant asks permission of this Court to permit the filing of

said Affidavit instanter.COPY

Appellant’s request for additional evidence is not strictly tied to the administrative
appeal under the statutory framework. Appellant’s request expressly addresses constitutional
issues that cannot as a matter of law be heard by an administrative body. Therefore, in
addition to the appeal, Appellant raises issues to be tried de novo by this Court. Appellant’s
Motion requests the right to pursue discovery under this Court’s aegis regarding those
constitutional issues that were outside the scope of the administrative body.

The Trust is the owner/developer of certain real property formerly known as the Dranek
Tree Farm on Middleton Road in the City of Hudson, Ohio and now known as Woodland
Estates. The Trust, on October 12, 2004, entered into an oil and gas lease for the
approximately 12.5 acres of land, with Ohio Valley Energy Systems, Inc. (“Ohio Valley”).
[Tr. at p. 392-393.] The City of Hudson, Planning Commission (“Commission”), approved a
revised preliminary plan, the final plat, and the Improvement Plans with conditions on
February 14, 2005. [Tr. at p. 385]. The Commission did not make findings of facts and
conclusions of law as required by Hudson’s Land Development Code (“LDC”). On February
18, 2005 the Clerk for the Commission mailed a copy of the decision to the Trust. [Tr. at p.
388.] The Clerk stated “Per the Planning Commission decision, revisions to the plat and
improvement plans need to be submitted to address those conditions. After you have made
those submissions, we will then ascertain if you have satisfactorily addressed all of the
conditions. ....Per the Planning Commission Decision, if the conditions of the approvals are
not met by April 15, 2005, this matter must return to the Planning Commission for review.”

On March 3, 2005, the Ohio Department of Natural Resources (“ODNR”) notified the
City of Hudson that Ohio Valley Energy Systems, Corp. (“Ohio Valley”) had applied for a

permit to drill an oil/gas well on the Trust’s property in Hudson, a copy of which is attachedCOPY

hereto as Exhibit A. On March 25, 2005, Mark Richardson of the City of Hudson
Community Development Department, notified Ohio Valley that it would be required to
apply for a zoning certificate and a right of way permit, a copy of the letter is attached as
Exhibit B. In order to obtain a zoning certificate, the letter stated that Ohio Valley would
have to meet “the City’s applicable code requirements.” The LDC, in 1205.04(C), a copy of
which is attached as Exhibit C, specified that oil and gas exploration and extraction was a
conditional use in District One and must comply with Section 1206.02, Conditional Uses.
Further, under Section 1205.04 (C) (4) an oil and gas lot was also required to be 20 acres and
meet Section 1206.03. Under Section 1206.02 (29) (A), @ copy of which is attached as
Exhibit D, Special Conditions for Oil and Gas Exploration, “the use shall demonstrate
compliance with the special development standards set forth in Section 1207.19(c), a copy of
which is attached hereto as Exhibit E, of this Code and with the standards set forth in Chapter
838 of the City’s codified ordinances”, a copy of which is attached as Exhibit F. Under
Section 1206.03(19), a copy of which is attached hereto as Exhibit G, Oil and Gas
Extraction, subject to the following conditions: (A) The use shall demonstrate compliance
with the special development standards set forth in 1207. 19 of this code and with the
standards set forth in Chapter 838 (a copy of which is attached as Exhibit H) of the City’s
codified ordinances; and (B) Drilling, storage and tank batteries are located at least 300 feet
or more from lot lines with adjoining properties. .. ”

Thereafter, the City did not enforce any of the above conditional use code sections
applicable to oil and gas exploration and extraction. Neither, Ohio Valley nor the Trust was
required to obtain a conditional use permit. See attached Exhibit I Affidavit of Robert Smith.

‘A conditional use application would be heard by the Commission, a copy of an applicationCOPY

for approval of a conditional use by the Planning Commission is attached as Exhibit J. Nor
did the City require Ohio Valley to obtain a zoning certificate. The City merely required
Ohio Valley to obtain a right of way permit.

On April 29, 2005, Mark Richardson notified the Trust of the status of the tasks relative
to file the final plat. [Tr. at p. 389-390]. No requirements relative to the oil and gas well or
setbacks was included in this notice. The letter indicates that the City has provided the
written language necessary for the final plat to your attorney and engineer and has approved
the plat drawing.

The Transcript of Proceedings, in the Index for March 15, 2007, states that it includes
an “oversized copy of recorded Woodland Estate Subdivision plat, recorded on May 20,
2005”. [Tr. at p. 484-485]. However, the copy of the plat is not in fact a copy of the recorded
plat. The first page (Tr. at p. 484] bears the Fiscal Officer’s recordation number 55187995,
Pg. 1 of 2. Page 2 of the plat attached to the transcript [Tr. at 485] is not a copy of the
recorded page 2 which bears the same recordation number and page 2 of 2, a copy of which
is attached hereto as Exhibit K.

On May 13, 2005 the Trust and the City executed the final plat which was recorded on
May 20, 2005. The Planning Commission Chairman signed the plat as approved by the
Commission “this 14" day of February, 2005”. However, the plat as submitted to the
Commission for the February 14, 2005 meeting differed substantially from the final plat as
signed and approved on May 13, 2005. A copy of the plat submitted to the City for the
February 14, 2005 Commission meeting is attached hereto as Exhibit L. The City had
provided the written language necessary for the final plat as stated in Mark Richardson’s

letter of April 29, 2005, [Tr. at p. 389-390.]COPY

The final plat as recorded, and as reflected on page 485 of the Transcript, sets forth the
building setbacks for lots 1 through 19. “Lots 1-19 inclusive have a ten foot (10’) sideyard
setback unless noted otherwise on this subdivision plat. Lots 7-19 inclusive have a twenty-
five foot (25’) rear yard setback.” The front yard building line for lots 1 through 19 is shown
on the final plat at twenty feet (20°). The rear yard setbacks for lots 1 through 6 are shown on
the final plat at thirty feet (30’). The open space conservation subdivision requirements are
set forth in Section 1207.06 of the LDC, a copy of which is attached as Exhibit K. 1207.06
(e) (2) (B) Case-by-Case determination states: “Building setbacks and yard requirements for
lots within an Open Space Conservation Subdivision in these districts shall be determined on
a case-by-case basis by the City Manager and PC during the subdivision approval process or
the site plan approval process. All determinations of setbacks and yard requirements shall
use as a starting point the minimum setbacks set forth in subsection (c) below, which may be
modified to meet the criteria set forth in 1207.01, ‘Maximum Impervious Surface
Coverage.”

On November 1, 2005, Tom King, Community Development Director of the City of
Hudson, notified the Trust that its request to move the oil tank battery from Block A of the
approved plat of Woodland Estates would be a violation of the Land Development Code. [Tr.
at p. 394.]

On December 8, 2006 the Trust, pursuant to the demand of Tom King, Director of
Community Development, applied for a variance from Section 1207.19(c) (11) for lots 9, 10,
11, 12, and 13 to relocate the tank battery within Block A of Woodland Estates and a
variance from Section 1207.19(c) (10) for lots 9, 10, 12, and 13. Neither the Commission

nor the City Manager had required the Trust or Ohio Valley to obtain a conditional useCOPY

permit for the oil and gas well. Neither the Commission nor the City Manager applied or
required the Trust to comply with the setbacks now being applied to lots 9, 10, 11, 12, and 13
at the time of the case by case determination of the setbacks for the open space conservation
plat approval process. The setbacks established are stated on the final plat signed by the
Trust and the City.
The BZBA denied the Trust’s request for variances on March 15, 2007.
Appeal on Questions of Law and Fact
R.C.§2505.05 and the related Sections, R.C.§§2505.01(A)(3) and 2504, authorize
appeals on questions of law and fact in administrative appeals, to be heard de novo by the
Court. R.C.§2505.05 provides, in pertinent part:
The notice of appeal described in section 2505.04 of the Revised Code shall conform,
in the case of an appeal of a final order, judgment, or decree of a court, with the Rules
of Appellate Procedure or the Rules of Practice of the Supreme Court and shall
designate, in the case of an administrative-related appeal, the final order appealed
from and whether the appeal is on questions of law or questions of law and fact.
An appeal on questions of law and fact is defined at R.C.§2505.01(A)(3) as follows,
“TA]ppeal on questions of law and fact’ or ‘appeal on question of fact’ means a rehearing
and retrial of a cause upon the law and facts.” “Rehearing” and “retrial” obviously provide
for a trial de novo and for the admission of evidence in addition to that in the transcript filed
by the administrative agency
Historically the phrase “appeal on questions of law and fact” has referred to a trial de
novo in the appellate court. Prior to the adoption of the Rules of Appellate Procedure in 1971,
which at App.R. 2 abolished appeals on questions of law and fact, litigants in chancery cases

had the option of appealing to the courts of appeal from the court of common pleas on

questions of law or on questions of law and fact. In a law and fact appeal the parties wereCOPY

entitled to a trial de novo and to introduce additional evidence. Dehmer v. Camel (1932), 124
Ohio St. 634; Union Trust Co. v. Lessovitz (1930), 122 Ohio St. 406, Kiriakis v. Fountas
(1924), 109 Ohio St. 553. The syllabus in Kiriakis, succinctly sets forth the holdings of these
cases and provides:

Ina chancery case in the Court of Appeals, the parties have a constitutional right to

Have their case tried de novo, being permitted to introduce competent evidence under

the legal rules applicable in the trial of questions of fact in trial courts.
The General Assembly has in Chapter 2505 (which is read in pari materia with Chapter
2506) incorporated this history into administrative appeals and has directed that such appeals
be tried de novo and that the introduction of additional evidence be permitted under the
safeguards of the Rules of Evidence. See, In re Rocky Point Plaza Corp. (Franklin 1993), 86
Ohio App.3d 486, 491.

Constitutional Issues

Jurisdiction over the issue of whether land use regulation and administration infringe
constitutionally protected property rights is vested exclusively in the courts; and so, in that
administrative agencies are without authority to consider such issues, the matter is presented
de novo upon appeal to the court of common pleas. State ex rel. Sibarco Corp. v. Berea
(1966), 7 Ohio St.2d 85; Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23.

The exclusive jurisdiction of the courts over the issue of constitutionality raised by
R.C.§ 2506.04 mandates the introduction of additional evidence in that the constitutional
guarantees to property owners are not properly before the administrative agency, and so
additional evidence must be heard by the court on appeal. SMC, Inc. v. Laudi (Cuyahoga
1975), 44 Ohio App.2d 325; FRC of Kamms Corner v. Cleveland Bd. of Zoning Appeals

(Cuyahoga 1984), 14 Ohio App.3d 372;COPY

Appellee concedes in its Brief in Opposition to Appellant’s Motion to Introduce
Additional Evidence, page 9, that “if constitutional issues are raised, the trial court reviews
those issues de novo and may allow additional evidence to be introduced for the reason that
the administrative body lacked jurisdiction to hear the constitutional issues. (Citations
Omitted.)”

In this case we expect the evidence to show that the administrative decision of the
Hudson BZBA denying the Trust’s request for a variance so as to allow the relocation of the
tank battery and the variances from the oil and gas well “deprives appellant of its property
rights without due process of law.” State ex rel. Fairmount Center Co. v. Arnold (1941), 138
Ohio St. 259, at page 266.

In a hearing before this Court upon issues of law and fact, we expect to establish that
the City of Hudson’s requirement that the Trust had to apply for these variances in order to
be allowed to relocate the tank battery, and the BZBA’s actions in denying said variances isa
clear unconstitutional use of power that has deprived the Trust of the reasonable,
economically viable use of the land as zoned. Additionally, this Court is in the best position
to review the conduct of City officials preceding and subsequent to the Planning
Commission’s approval of the open space conservation subdivision; including the
establishment of setbacks as recorded on the plat; and the extent to which City officials
subverted the process to deny the Trust the use of lots 9, 10, 11, 12, and 13.

Appellant respectfully submits that the Motion to Introduce Additional Evidence should
be granted and that the parties should be permitted to introduce additional evidence in

addition to that set forth in the Transcript filed by the Appellee.COPY

Respectfully submitted,

17888 Snyder Road

Chagrin Falls, Ohio 44023

Tel: 330-329-5003

Fax: 440-543-6532

Email: KarenSmith54@adelphia.net
Attorney for AppellantCOPY

CERTIFICATE OF SERVICE

Thereby certify that a true copy of the foregoing Motion, Brief and Affidavit was
il to Charles Riehl, Attorney for the City of Hudson, 1301 Eo"

sent by regular U. S. Mail
Street, Ste. 3500, Cleveland, Ohio 44114-1821 this 13th day of August, 2007.
op

; QALM Lf QL
Katen Edwards-Smith (004288 )

Attorney for AppellantOhio Department of Natural Resources

BOB TAFT, GOVERNOR, ‘SAMUEL W. SPECK, DIRECTOR
ODNR-Division of Mineral Resources Management
Michael L. Sponsler, Chief
2045 Morse Road—Bldg. H-3
‘Columbus, Ohio 43229-6693
Phone: (614) 265-6633 Fax: (614) 265-1998

March 3, 2005

Attention: Mr. Douglas R. Elliott, Jr., City Manager
City of Hudson

27 East Main Street

Hudson, Ohio 44236-3099

RE: Edwards-Smith Unit, well #1

Dear Mr. Elliott:

Pursuant to your request, we are notifying you of an application that we have received
from The Ohio Valley Energy Systems, Corp. They have applied for a permit to drill an
oil/gas well in Hudson. Attached please find a copy of the application and surveyor’s
plat for this proposed well.

Sincerely,

2, DNiuveltiais
Patty Ni¢klaus
Permitting, Hydrology and Bonding Section
(614) 265-6939

Enclosures

Bi main none Ex. &City of Hudson, Ohio .

Department of Community Development
46 Ravenna Street, Suite D-3; Hudson, OH 44236-3099
330-342-1790 330-656-1753 Fax: 330-342-1880

www. hudson.oh.us
.-preserving and enhancing Hudson's character and quality of life by administering,
the City’s adopted development codes and regulations.

March 25, 2005

Ohio Valley Energy Systems Corp
200 Victoria Road, Building 4
Austintown, Ohio 44515

Dear Sir:

The Community Development Department has become aware that you intend to drill an oil
and/or gas well within the City of Hudson. Although the State of Ohio has assumed
responsibility for most of the regulations pertaining to such operations, the City of Hudson
maintains authority over some aspects of these operations to protect public infrastructure in
the event it is damaged, to insure the operations are properly permitted before they begin,
to inform City staff that your operation is properly ited, and to be able to respond to
public inquiry. To accomplish these goals you must apply for and receive a zoning
certificate before your operations begin as follows:

1. You must complete an application for a zoning certificate and submit the required
fee. With your application you must submit the permit from the State of Ohio
authorizing your operation and the site plan associated with your application.

2. Upon review of the above materials and assurance that the City’s applicable Code
requirements are or will be met, the City of Hudson will issue a zoning certificate
for your project. It is likely the City will require a right-of-way bond to assure
repair of existing public infrastructure in the event it is damaged.

Mr. Smith has stated you will begin cutting the street right-of-way grade and utility
easement grades adjacent to the streets. This activity must be limited to clearing and access
road construction only to the extent necessary for your drilling operation. Anything more
than that, including clearing more than necessary and grading, would become
improvements for your proposed subdivision which requires a separate permit. Should you
proceed without a zoning certificate or disturb the site more than necessary for your drilling
operation you will be in violation of the Planning Commission decision of February 14,
2005 that states in part that "no clearing, grading or construction of any kind shall
commence prior to the issuance of a Zoning Certificate." This decision is in conformance
with Section 1212.02(b)(2) that states that "It shall be a violation of this (LDC) to
undertake any of the following activities: grade, cut, clear, or undertake any other land
disturbance activity without a zoning certificate." If this violation occurs, you will be
subject to penalties for civil infractions.

Applications for a zoning certificate and right-of-way permit are attached. The fee for the
zoning certificate is $120. Ifa right-of-way bond is required, the fee will be $150. You

ex, BCOPY

-2- March 25, 2005

will be informed of the amount of the bond upon review of your zoning certificate
application. Please contact me if you have any questions.

Mark Richardson
City Planner

cc: Tom King
Robert Smith
Greg Hannan
Judy WestfallCOPY

Chapter 1205 Zoning Districts Section 1205.04 District 1: Suburban Residential Neighborhood

SECTION 1205.04 District 1: SUBURBAN RESIDENTIAL NEIGHBORHOOD

(a)

Purpose

District 1 is established to preserve and protect an existing community character
typified by single-family detached residential housing developed at densities varying,
from 1 dwelling unit per one-half acre to 1 dwelling unit per 2.5 acres. The district
js relatively more rural in density given its distance from the’ Village Core. The
amount of prior development has left few environmental constraints on additional

use, while providing for additional parks and open space, supporting institutional uses
(such as churches and schools), and public service uses. Densities will mirror existing
densities and character, and be permitted up to a maximum of 2 dwelling units per
acre. Protection of remaining sensitive environmental areas will also be a high
priority.

(b) Uses By-Right
The following uses shall be permitted by right in District 1 subject to meeting all
applicable requirements set forth in this section and this Code.
(1) Residential:

(A) Family day care homes, small (1-6 children).

(B) _ Residential group homes for up to five handicapped or elderly people.

(C) Single-family, detached. .

(2) Agricultural:

(A) General agricultural operations on parcels of more than four (4) acres

and do not involve the keeping of farm animals.
(3) Planned Developments

(A) _ Residential planned devel: , subject to standards and

procedures set forth in Sections 1203.04 and 1204.02 of this Code.
(4) itutior i ic:

(A) Public park or recreation areas, including multipurpose trails.

(B) Public recreational facilities, indoor or outdoor, provided they are no

than 10,000 square feet in gross floor area.

(C) _ Essential public utility and public service installations, including bus
shelters and bus stops, but not including water towers, power
generating stations, transfer stations, or outdoor storage.

(5) Accessory Uses: See Section 1206.03, “Accessory Uses.”

(c) Conditional Uses
The following uses shall be conditionally ited in District 1 subject to meeting all
applicable requirements set forth in this section and in Section 1206.02, “Conditional
Uses.”
Q) ~~ Agricultural:

(A) General agricultural operations...

City of Hudson Land Development Code Page 63 ‘September 2003COPY

oe

Chapter 1205 Zoning Districts

Section 1205.04 District 1: Suburban. Residential Neighborhood

@

Q)

Q)

(B) Model Homes.

(©) Residential group homes for the handicapped or elderly (from 6to8
people).

(D) Single-family, attached.

(E) Townhomes.

Commercial/Retail:

(A) _ Bed and breakfast inn.

(B) _ Golfcourses, private.

(C) Private-membership recreational facilities or clubs.

Institutional/Civic/Public:

(A) Cemeteries.

(B) Golf courses, public.

(C) ‘Places of religious worship, including churches and synagogues
Religious schools and day care centers may be permitted as accessory
uses within the same structure as the principal conditional use.

(D) Public recreational facilities, indoor or outdoor, greater than 10,000
square feet in gross floor area.

(EB) Public safety and emergency services, including police or fire stations
and emergency medical services, provided the size of the building
housing the facility or service shall not exceed 10,000 square feet.

(F) Schools, public or private—preschool, elementary, secondary, or

post-secondary.

Accessory Uses:

(A) Oil and Gas Exploration and Extraction of lots of at least 20 acres in
size under single ownership.

(B) See Section 1206.03, “Accessory Uses.”

unless otherwise noted):

(a) i 2 dwelling units per acre.

(2) Open Space: In addition to compliance with the standards and requirements
governing open space set forth in Section 1207.05 of this Code, developments
in District 1 “tall get aside a minimum of 25% of the gross land area for
private open space.

(3) | Minimum Lot Size:

(A) Residential Uses on Lots Fronting an Arterial: One (1) acre.
@®) ‘All Other Residential Uses: 20,000 square feet, except that the

minimum lot size may be reduced to a minimum of 6,000 square feet

City of Hudson Land Development Code Page 64 ‘Septeraber 2003COPY

Chapter 1207 Zoning Development & Site Plan Standards Section 1207.19 Special Development Standards

© oxhing in this section shall be construed 0 probit or iit the pay. sl
or rental of descriptive, printed, film or video material or anylive
we performance i taken as a whole, contains serious literary, arusur,
political, medi educational or scientific value.

(v) Outdoor Sales, Storage, and Activities -
(1) Outdoor Storage. Loading Areas, Trash Collection Areas, and Other

Servis .

(A) Any outdoor storage, loading areas, trash collection areas on a lot
shall be screened from public view pursuant to the requirements set
forth in Section 1207.04(n), “Screenings and Landscaping for
Service Structures.” This provision shall not apply to residentially
zoned and used parcels in the City.

(B) No loading areas, trash collection areas, service entrances, and
similar accessory uses shall be located in a front yard.

(C) Outside storage ‘must be on a dust-free surface.

(Bb) Materials stored outdoors shall be located so as to permit the free
access of fire fighting equipment around the periphery of all
structures at all times.

(BE) Outdoor sales or merchandise for sale, which cannot be stored
indoors, is prohibited unless approved by council.

(2) Vending Machines. Vending machines shall not be permitted outdoors.
&
(c) Oil/Gas Exploration and Drilling Uses

(1) Inaddition to the requirements set forth in this Chapter, oil/gas exploration
and drilling uses shall comply with all applicable standards set forth in the
City’s Business Code, Chapter 838, of the Codified Ordinances. In case of.

conflict between the provisions of this section and Chapter 838, the stricter
provision shall apply. oe

(2) The location of the tank sites, access roads and barriers, and landscape
screening shall comply with the following requirements. In addition, the
location of the tank sites, access roads and barriers, and landscape
screening shall comply with any other applicable requirements of this
Code to the maximum extent feasible:
(A) Storage tanks, separators, and well installations and other
permanent producing facilities shall be entirely enclosed by a six
(6) foot chain-link fence, with a gate capable of being locked, plus
three (3) strands of barbed wire above. Fences shall be kept in
good state of repair until the well is abandoned and the tanks taken

(B) =‘ Tank batteries shall be screened by evergreens, Jandforms, or
wooden fencing. With any use of screening, the chain link fencing

screening around the tanks should be at least twenty-four (24)
inches off the ground and set away from diking to permit air
circulation inside the enclosure. Any well screening should be

City of Hudson Land Development Code Page 270 September 2003

Ex. €COPY

Chapter 1207 Zoning Development & Site Plan Standards Section 1207.19 Special Development Standasds

(4)

6)

(6)

(8)

(9)

(10)

designed for removal and replacement when the well head is
serviced. .

(C) All storage tanks shall be diked to prevent any spillover which may
damage surrounding property.

(D) Access roads shall be paved with suitable road materials to help
prevent mud deposits on public roads and to provide emergency
vehicular access during inclement weather. Access roads shall be
adequately fenced and have a gate with a locking device installed
at or near the public road entrance to prevent unauthorized entry
from the public road.

(E) During the time wells are in operation, a metal sign showing the
street or road numbers, as may be approved by the Community
Development Director, shall be installed on the access road gate so
that the Police and Fire Departments may find the area when
necessary.

The names, addresses and telephone numbers of the persons responsible
for the operation and maintenance of each well and tank site shall be
registered with the Fire, Police, and Community Development
Departments.

All waste materials, such as sludge, salt water, or other waste effluents.
from the wells or tanks sites shall be hauled off the property and deposited
at state-approved dump sites. No existing well within the City of Hudso&
shall be used as a brine injection well or for annular disposal of brine or
any other process that may be developed that involves storing brine or
other waste products in producing or exhausted wells.

Where access roads connect with city roads, culvert and ditching shall be

done under the supervision of the City of Hudson Engineer, who shall also /

be notified before operations are started. The City Engineer's final
inspection shall be made after completion of all such road work.

When drilling any well for oil/gas, the drilling rig shall have a “Blow-Out”
preventer in good working order attached to the drilling equipment to
prevent gas or oil from blowing out of control and causing damage to the
surrounding area.

No internal combustion engine shall be used to operate an external well
pump.

“Cuttings” or residue material, at all well drilling sites shall be treated in
the same way as those which fall under regulations for Special Permit .
required by Ohio Department of Natural Resources, Division of Oil and
Gas. .

No structure suitable for occupancy shall be erected within one hundred
(100) feet of any unplugged oil and gas well head. Ifthe well has been

City of Hudson Land Development Code Page 271 September 2003COPY

Chapter 1207 Zoning Development & Site Plan Standards Section 1207.19 Special Development Standards

abandoned and plugged, no habitable structure shall be erected within
twenty-five (25) feet of the plugged well head.

Tank batteries shall not be located or relocated closer than two hundred
(200) feet to a structure suitable for occupancy, nor can any such structure ~
be erected within this distance. Tank batteries shall not be located or
relocated closer than three hundred (300) feet from a property line of any
parcel not in the original drilling unit(s).

To reduce the potential of a brush fire, weeds shall be cleared periodically
from inside the tank battery fencing and shall be cut outside the perimeter
of the fencing to a distance of at least 36 inches.

(d) Special Setback Requirements Respecting Agricultural Uses

~ a)
(12)
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No structure suitable for occupancy shall be located or constructed closer
than 100 feet to an accessory building or fenced enclosure associated with
an agricultural use except for the residence of the person engaged in the
agricultural use.

No accessory building or fenced enclosure associated with an agricultural
use shall be located or constructed closer than 100 feet from a structure
suitable for occupancy or closer than fifty (50) feet from the property’ line
ofa residentially zoned lot, other than that of aresidence of the person®
engaged in the agricultural use.

For purposes of this subsection, a “fenced enclosure” may include any
perimeter fencé associated with an agricultural use as long as such
perimeter fence forms part of an enclosure that contains such agricultural . -
use.

Cy of'Hiuilioa Lend Development Code ‘Page 272 ‘Seplember 2003COPY Page 1 of 12
Hudson, OH Code of Ordinances

PART EIGHT.- BUSINESS REGULATION AND TAXATION CODE

TITLE TWO - Business Regulation

CHAPTER 838 Gas and Oil Wells
CHAPTER 8338
Gas and Oil Wells
838.01 Permit required; fee; authority of Planning Commission.
838.02 Site plan and vicinity map requirements.
838.03 Performance guarantee.
$38.04 Distances from boundary lines, public buildings and residences,
838.05 Variances; authority of Board of Zoning and Building Appeals.
$38.06 Limit on unitizing properties.
838.07 Easements or options.
838.08 State permit required.
838.09 Emergency information.
838.10 Disposal of waste materials.
838.11 Landscaping; color of equipment.
838.12 Fences; padlocks.
838.13 Signs.
838.14 _ Site restoration prior to production.
838.15 Maintenance of site, access drives and public roads.
838.16 Use of public roads.
838.17 Construction of access drives.
838.18 Security.
838.19 Underground facilities across streets and easements.
&. ©

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838.20 Floodways.
838.21 Nuisances.
$38.22 Pollution prevention.
838.23 Abandoning wells.
$38.24 Additional safeguards.
838.25 Inspections.

38.26 Insurance.
838.27 Liability.
838.28 Application of other State and local requirements.
838.29 Conditions for nonissuance or revocation of permits; stop orders.
838.30 Conflict of laws.
838.99 Penalty.

CROSS REFERENCES

State law provisions - see Ohio R.C. Ch. 1509
Defiling of wells - see GEN. OFF. 660.21
Street pavements - see S.U. & P.S. Ch. 1010
Excavations - see 8.U. & P.S. Ch. 1016

838.01 PERMIT REQUIRED; FEE; AUTHORITY OF PLANNING
COMMISSION.

No drilling operation for the exploration of gas and/or oil which exceeds a penetration of greater than
fifty feet from site-grade level shall be commenced until a drilling permit is obtained from the
Municipality. A separate permit is required for each gas and/or oil well. A nonrefundable fee of one
thousand dollars ($1,000), payable to the Municipality to cover the costs of application review, shall be
submitted with the permit application.

(a) The Planning Commission shall schedule and advertise a public hearing to give adjoining
property owners and citizens an opportunity to obtain information from the applicant regarding the
location of wells, equipment, roadways, dates of drilling, and safety and health precautions.

(b) The Planning Commission shall schedule and advertise a public hearing whenever a tank
battery or other producing equipment has to be relocated.

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(Ord. 94-165. Passed 1-4-95.)
838.02 SITE PLAN AND VICINITY MAP REQUIREMENTS.

Each application for a permit to drill a gas or oil well or to relocate a tank battery or other producing
equipment shall be accom ied by a site plan and vicinity map of the area involved in the application,
drawn to scale, and showing thereon or attached thereto, the following:

(a) The owners' names and addresses and the current lot lines of all properties within the proposed
drilling unit and within 1,000 feet of the proposed location of the well, storage tanks, and associated
equipment;

(b) The current locations, dimensions and uses of all buildings, structures, ponds, lakes, wetlands
and streams within the drilling unit, and structures suitable for occupancy within 1,000 feet of the
proposed location of the well, storage tanks and associated equipment;

(©) The proposed location of the well and all associated appliances and facilities, such as the
wellhead, piping, separators, scrubbers, tank batteries, access roads, dikes, fences and the like;

(d) The proposed landscaping, screening and restoration plans;

(e) The proposed locations of pipelines to be utilized to transmit the gas and/or oil to off-site
locations, and the facilities to be established at receiving facility locations;

(f) For emergency purposes, a schematic diagram of all flowlines, connections and shut-off valves,
the diagram to be modified and resubmitted to the Municipality any time that a change in the equipment
or facility occurs;

(g) Specific plans for the removal, disposal methods and disposal sites of all drilling fluids, spoils,
cuttings, brine water and other residues and waste materials resulting from the drilling, fracturing or
production of the well;

(h) Existing contours with intervals of not more than five feet where the slope is greater than ten
percent, and not more than two feet where the slope is less than ten percent. However, one-foot contours
are recommended and will be required in relatively flat topography. Elevations shall be based on sea
level datum.

(i) The names and addresses of all property owners of mineral rights within a radius of 1,000 feet
of the proposed location of the well, storage tanks and associated equipment,

@) The names, addresses and telephone numbers of all persons who will be contracted to haul oil,
condensate and/or brine salt water, together with the names, addresses and telephone numbers of all
subcontractors thereof,

(k) The proposed truck routes in and out of the site on public roads during drilling and/or plugging
operations;

() Copies of all easements or options for easements for the pipeline, production and processing,
equipment, and access roads;

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(m) A statement stipulating that copies of the Spill Prevention Control and Countermeasure Plan
for certain site storage facilities, per Title 40, C.F.R. No. 237, Part 112, shall be submitted prior to
commencement of production; and

(x) A policy of public liability insurance, specifically covering damage to property and
contamination of potable well water, with a certificate listing the Municipality as the named insured.

The applicant shall provide for independent testing for the presence of chlorides and/or total
dissolved solids, either by a qualified consultant or a qualified Ohio Department of Natural Resources
laboratory, prior to drilling, upon turn-on, and annually thereafter, in any water wells within 1,000 feet
of the proposed location of the well, storage tanks and associated equipment. (Ord. 94-165. Passed 1-4-
95.)

838.03 PERFORMANCE GUARANTEE.

A cash deposit, letter of credit, performance bond, or other instrument acceptable to the Solicitor in
an amount as determined by the Manager or his or her authorized representative, shall be deposited with
the Manager or his or her authorized representative, along with the other submittal requirements, to
serve as a financial guarantee of compliance with this chapter. Such guarantee shall not only be
conditioned upon compliance with this chapter by any assignee and owner of any drilling permit granted
under this chapter, but also by any employee, contractor, subcontractor or other party performing
services in connection with the permit. Guarantees shall be released upon completion of the plugging of
the well bore and the restoration of the site. Completion shall be determined by the Manager or his or
her authorized representative after inspection of the facilities and site and assurances of compliance from
the Ohio Department of Natural Resources, Division of Oil and Gas. (Ord. 94-165. Passed 1-4-95.)

838.04 DISTANCES FROM BOUNDARY LINES, PUBLIC BUILDINGS AND
RESIDENCES.

(a) No gas or oil well shall be placed closer than 500 feet from any boundary line of the drilling
unit and 300 feet from any structure suitable for occupancy. Buildings used exclusively for agricultural
purposes shall be excluded.

(b) No storage tanks, separators or other equipment associated with gas or oil shall be placed closer
than 300 feet from any structure suitable for occupancy or from adjacent property lines of any parcel not
in the drilling unit. Buildings used exclusively for agricultural purposes shall be excluded. This applies
both to original buildings and any relocation.

(©) For purposes of this section, the following definitions shall apply:

(1) "Boundary line of a drilling unit" means the perimeter of the lands within the drilling unit,
as depicted on the site plan submitted pursuant to Section 838.02.

(2) "Drilling unit" means the total area of all property included in any one application fora
drilling permit.

(Ord. 94-165. Passed 1-4-95.)

838.05 VARIANCES; AUTHORITY OF BOARD OF ZONING AND BUILDING

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* APPEALS.

(a) Where compliance with the distance requirements of Section 838.04 may be a handicap to the
use of the property, and where no undue hazard will be created, the distance may be reduced at the
discretion of the Board of Zoning and Building Appeals after due consideration of special
circumstances, such as:

(1) Topographic conditions;

(2) The nature of the occupancy;
(3) The proximity of buildings; and
(4) The proximity of storage tanks.

(b) The foregoing shall not in any way be construed as a limitation of the matters which the Board
may consider. The Board may consider any and all other special circumstances that it may deem
important in determining whether or not an undue hazard is created.

(Ord 94-165. Passed 1-4-95.)
838.06 LIMIT ON UNITIZING PROPERTIES.
Any owner who has unitized any portion of his or her property by entering into a community lease or

other agreement shall not share in any adjacent well production because of conflicting lease interests of
that portion of his or her property caused by such property being in more than one unitized site. It is the

express intention of this section to prohibit an owner of property from unitizing identical property under
more than one community lease or agreement. (Ord. 84-27. Passed 6-18-84.)

838.07 EASEMENTS OR OPTIONS.

Copies of easements or options for easements shall be submitted with the application for all
pipelines, appurtenant structures and access drives where such facilities cross properties not included as
part of the drilling unit.

(Ord. 84-27. Passed 6-18-84.)
838.08 STATE PERMIT REQUIRED.

Subsequent to the issuance of a Municipal gas or oil well permit, the permit holder shall obtain a
permit from the Ohio Department of Natural Resources, Division of Oil and Gas.

(Ord. 84-27. Passed 6-18-84.)
838.09 EMERGENCY INFORMATION.
To ensure that a responsible person may be reached at any time in the event of an emergency, the

name, address and telephone number of a person responsible for the ownership, operation and
maintenance of each drilled well located within the Municipality, whether such well is capped,

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temporarily out of production, not yet fractured or in production, shall be furnished to the Manager. This
information shall include the street location, State permit number and name of the well.

(Ord. 84-27. Passed 6-18-84.)
838.10 DISPOSAL OF WASTE MATERIALS.

All waste materials, such as sludge, brine or other waste effluents from wells or tank sites, shall be
hauled off the property and deposited at a State approved disposal site. Written evidence of proper
disposal shall be submitted monthly to the Manager. Brine disposal is not permitted within the
Municipality.

(Ord. 84-27. Passed 6-18-84.)
838.11 LANDSCAPING; COLOR OF EQUIPMENT.

(@)__Allinstallations shall be landscaped with salt tolerant evergreens. If the screening provided by
existing trees and the evergreens is not adequate to sufficiently screen the site, land forms and/or
wooden fencing is allowed. Wooden fencing must be at least twenty-four inches off the ground and set
away from diking to permit air circulation within the enclosure. Wooden enclosures must be designed
for removal and replacement to service wells or equipment. Landscaping shall meet the approval of the
City Arborist.

(b) All storage tanks, fences, separators and pumping units shall be painted a forest green color.
Emergency shut-off valves shall be painted red.

(Ord. 94-165. Passed 1-4-95.)

838.12 FENCES; PADLOCKS.

Storage tanks, separators, well installations and other permanent producing facilities shall be entirely
enclosed by an eight-foot high chain-link fence topped with three strands of barbed wire. Fences shall be
kept in good repair until the well is abandoned and the tanks taken out of service. Gates shall be

padlocked. Shipping valves extending beyond the fence shall be padlocked. (Ord. 94-165. Passed 1-4-
95.)

838.13 SIGNS.

During the entire time of drilling or production of a gas or oil well, a metal sign identifying the site
and its street address, as approved by the Manager, shall be installed near the entrance to the designated
access road from the public street to facilitate emergency access.

(Ord. 84-27. Passed 6-18-84.)
838.14 SITE RESTORATION PRIOR TO PRODUCTION.
Prior to the initiation of production following the drilling phase, the Manager shall be notified.

Before authorizing the permit holder to proceed, the Manager shall verify that the following
preconditions for such approval have been fulfilled:

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(a) _ All disturbances of land associated with drilling and development of the well have been
restored in such a manner as to approximate the original shape and condition of the drilling site prior to
the initiation of drilling procedures, except as necessary and approved for production.

(b) The permit holder has cleared the site of all litter, rubbish, machinery, equipment, buildings, oil
or other substances associated with the drilling and development of the well.

(c) The permit holder has restored, to their former condition, all streets, sidewalks and other public
places of the Municipality which have been damaged or disturbed in the operation of drilling or
preparing to drill, or in connection with drilling.

(@) A final plat has been prepared and submitted to the Manager showing "as built" locations of
wells, permanent storage facilities, pipelines, fences, property boundaries and service roads. Such plat
shall be prepared by a registered surveyor of the State.

(Ord. 84-27. Passed 6-18-84.)

838.15 MAINTENANCE OF SITE, ACCESS DRIVES AND PUBLIC ROADS.

For the duration of a drilling and production operation, the site shall be maintained in a neat, clean
and orderly condition. Access drives shall be maintained in a dust-free condition. The permit holder
shall be responsible for clearing public roads of all mud, debris or other accumulations resulting from
the operation, as many times each day as necessary to keep the roads clean and safe at all times. The
Manager, or his or her authorized representative, shall have the authority to request a permit holder to
take specific steps to comply with these standards. Failure of a permit holder to comply to the
satisfaction of the Municipality, or failure to take specific steps to comply at a given location, as
requested by the Municipality, shall be grounds for suspension of a permit.

(Ord. 84-27. Passed 6-18-84.)

838.16 USE OF PUBLIC ROADS.

A minimum of ten days prior to the start of well drilling operations, a map indicating routes to be
used in conjunction with the drilling operations shall be submitted to the Manager. The Manager shall
then visually inspect the roads in the company of an agent of the permittee to determine the condition of
such roads prior to any activity on the part of the applicant.

A minimum of twelve hours prior to the movement of any drilling equipment into the Municipality,
notice shall be given to the Manager and written consent from the Manager shall be secured.

The Manager shall have the right and discretion to revoke approval of transportation of well drilling
equipment on twelve hours notice at any time that the condition of roads, weather or traffic make travel
unsafe.

(Ord. 84-27. Passed 6-18-84.)
838.17 CONSTRUCTION OF ACCESS DRIVES.

Prior to the drilling of any well, service and emergency access drives shall be constructed. They shall
be paved with suitable road materials acceptable to the Manager to prevent mud deposits on public

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streets and to permit emergency vehicular access during inclement weather. Access drives shall be
adequately fenced and shall have a gate with a locking device to prevent unauthorized entry. Drives,
fences and gates shall be maintained by the permit holder for the life of the well. When wells and tanks
become an integral part of a subdivision or other development, a