Jan 1, 2016 8 min read

For the second time in less than a month, Range Resources Appalachia LLC has gone to Washington County Court hoping to overturn a South Strabane Township vote that thwarted its plans for a natural gas drilling operation.

Lawyers for Range Wednesday claimed the township supervisors failed to consider in a timely manner its conditional-use application for a natural gas drilling pad and five horizontal wells on Mitchell Road on what’s known as the Zediker industrial site, and, because of delays to which Range did not assent, its request should be deemed as an approval.

Range cited a section of the Municipal Planning Code stating when the supervisors fail to hold a required hearing within 60 days of receiving an application, “the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed, in writing or on the record, to an extension of time.”

According to documents Range presented to the court, it filed an application for conditional-use approval of drilling on the Zediker site.

The natural gas giant also claims the supervisors abused their discretion and committed an “error of law” because “no individual sought to be recognized in opposition to the Zediker application.”

Court documents filed by Range attorney Kathy Condo and two additional attorneys set a chronology that began July 10 when Range submitted its application. The township planning commission reviewed Range’s application for the Zediker site at an Aug. 6 meeting and twice postponed action, scheduling consideration Sept. 3 and Oct. 1.

“Although the Sept. 3 meeting minutes indicate that the applicant agreed to waive the time constraint on this matter, Range did not consent in writing to an extension or waiver of the mandatory time limits for a hearing and action on the Zediker application,” Range asserts in its land-use appeal.

The township supervisors met Sept. 8 and Jack Keisling, chairman of the board, raised the possibility of adopting a “curative amendment” to place a moratorium on all oil and gas development in the township, and the supervisors voted to direct the township solicitor to prepare a resolution for adoption at the board’s next meeting.

Range, in court documents, claims Supervisor Bob Koman stated, “If it was up to me, there would be no gas in the entire town. I think that, and I’ve been around it, and it’s incredibly dangerous work. It’s environmentally insane, and believe me, I drink beer with the guys (who) do that work, and they’re crazy to do what they do. I wouldn’t want that in my backyard, and I wouldn’t want that in any citizen’s backyard.”

Before the Oct. 1 planning commission meeting, Range offered the planning officials and supervisors a tour of well pads so they could see pads at various stages of development and operation. Range claims it received no response.

The planning commission reviewed Range’s application at its Oct. 1 meeting, and acknowledged Range’s offer to set up the tour, which several planners said they’d accept. The planning commission delayed consideration of the Zediker application until Nov. 5, and Range and township officials – planners Fred Pozzuto, Bob Weber, Laynee Zipko and Paula Phillis – in the meantime visited sites.

At the Nov. 5 planning commission meeting, the board considered a motion to recommend approval of the Zediker site conditional use for a well pad subject to the township engineer’s comments and the 49 conditions drafted by the township solicitor, Thomas Lonich.

The planners’ vote carried approval with Pozzuto, Zipko and Phillis voting in favor, Weber and Joseph Kopko voting against and Tom Steele abstaining.

The supervisors, meanwhile, did not convene a public hearing on the Zediker property until Nov. 24, Range states. During the hearing, Keisling “left the meeting without explanation at the start of the public hearing … (and) Koman left the meeting without explanation in the middle of the public hearing.”

The supervisors planned to take action on Range’s application at their Dec. 15 meeting, but John Stickle, township manager, contacted Range and said Keisling had the issue removed from that agenda. The supervisors also canceled their Dec. 22 meeting.

Representatives of Range attended the Dec. 15 meeting and asked that its Zediker application be placed back on the agenda. Supervisor Dan Piatt made a motion, seconded by Zipko, who is also a supervisor, that the board grant conditional-use approval for the Zediker site subject to 49 conditions as modified by Range at the Nov. 24 public hearing.

Supervisor Ed Mazur was absent from the Dec. 15 meeting, and Keisling refused Range’s request that the supervisors contact him by phone so he could participate in a vote. Lonich said at the time that Mazur did not attend the meeting because of a health issue, and protocol for a vote via phone involves making arrangements before a meeting.

The motion to approve Range’s request to drill at the Zediker site deadlocked 2-2 with Zipko and Piatt voting yes and Keisling and Koman voting no. Citizens attending the meeting questioned Keisling’s “no” vote. According to court documents, the chairman “defended his position based on his own personal bias and prejudice against Range Resources. Supervisor Keisling explained he had a lease with Range in another community for a producing well and (he) was not satisfied with his royalty payment and his (inability) to renegotiate a lease. Keisling never disclosed, even when asked, his personal bias and prejudice against Range prior to voting on Range matters.”

Range claims the vote was “tainted” by Keisling’s and Koman’s statements and their failure to stay for the entire Nov. 24 public hearing. The company also claims South Strabane has waived its ability to impose conditions on the Zediker site.

Range notes in court documents that it did not consent in writing to extend or waive the mandatory time limits for action on its application at either the Oct. 1 or Nov. 5 planning commission meetings, nor at a Nov. 24 supervisors’ meeting, and that according to the Municipal Planning Code and zoning ordinance, the opportunity to hold a initial public hearing expired Nov. 2.

In its court filing, Range cited a 2009 state Supreme Court case from Salem Township, Westmoreland County, which enacted a general ordinance that aimed to regulate surface and land development associated with oil and gas drilling operations. The state’s highest court agreed with both the county court and Commonwealth Court that each of the local regulations Range challenged “is preempted by the (state’s) Oil and Gas Act and its associated administrative regulations.” Range also cited a 1994 case involving Monroeville Borough, Allegheny County, to bolster its claim that “any tribunal permitted by law to try cases and controversies must not only be unbiased but must avoid even the appearance of bias.”

Range claims that no one demonstrated that the Zediker gas well pad would have effects worse than those normally generated or that its effect would be detrimental to the health, safety and welfare of the community.

The company asked the court to “assess against the township appropriate costs and fees” for the municipality’s “abuse of discretion.”

Earlier this month, Range took to Washington County Court both a complaint and an appeal of South Strabane’s denial of the company’s conditional-use application for the Baumel well pad site on Kopper Kettle Road. The suit came a day after a second vote on allowing overnight accommodations for workers failed to pass.

Central to that issue is also Range’s claim that its conditional-use applications for housing trailers were not considered in a timely manner by supervisors and the township is imposing an unreasonable condition.

According to the complaint, Range originally filed the application Aug. 27, 2014, and the first public hearing was held Oct. 28, 2014.

Although the first application was approved Nov. 25, 2014, Range went back to the township in September of this year, seeking a revision so temporary trailers for overnight accommodations for 11 workers could be added.

“The deadline … to commence the first public hearing on the revised Baumel application … expired on Nov. 16, 2015,” one of the earlier suits reads.

Range is requesting the court to approve the revised Baumel application without conditions and to award an unspecified amount in damages.

The condition of temporary housing trailers was denied by supervisors Nov. 24, and again Dec. 15, when the gas company’s conditional-use application for the Zediker Station West site on Mitchell Road also failed.

Zipko made a motion Dec. 15 to approve overnight accommodations for Range workers, which Piatt voted for and Keisling and Koman voted against. At the November meeting, Zipko abstained and Mazur voted to approve the motion.

Zipko, who announced in March that she is a natural gas leaseholder, is also a member of the planning commission, working on a new oil and gas ordinance recommendation. She has regularly abstained from voting as a supervisor on drilling motions and said previously she spoke with the state Ethics Committee about her plight.

She said she continued to research whether voting was a conflict of interest.

“I have done further investigation and been given clearer direction with how to proceed,” she said. “I’m able now to represent the people who voted me to this office.”

Keisling, Mazur and Zipko, along with two new council members, will be tasked with taking action on the township’s developing gas ordinance. But Weber and Thomas L. Moore, who will replace Piatt and Koman when their terms expire early this year, are not novices to township politics; Weber sits on the planning commission and Moore is a former chairman of the board of supervisors.