County/City Special Use Permitting Processes are Essential to Oil and Gas Development

For 35 years, statute has required local governments to develop a comprehensive plan and then adopt ordinances which conform to the plan and state law.  In this way, development is orderly and follows a road map (comp plan) which is tailored to each community.  As you probably know, all land use is divided into difference use zones.  Then administrative permitting or guidelines are written for what is allowed in each of those zones.  In this way for example, if you want to build a 2000-square-foot home, you can do it simply by applying for a permit to do so in any zone which allows for that use.

Most every community also identifies certain other activities which by their very nature, can be allowed in one or more zones but because of potential conflict or other concerns, need special review.  For example, a day care center may be allowed in a commercial zone, but requires a special use permit to be allowed in a residential district because the hours of operations, traffic, and other safety or quality of life issues could be impacted.  In a rural setting such as the county, things like cell towers, gravel pits, CAFO’s, etc., are usually allowed in most zones, but only by special use permit.  In this way, adjacent property owners can have some input to address issues that may impact the enjoyment of their own property or other safety and quality of life concerns.  It allows local authorities to grant the use if certain conditions are met to mitigate these concerns.  In reality, the special use permit cuts two ways.  Rather than completely excluding a potentially compatible use from any given area because there might be instances where such a use is problematic, special use permits are really about expanding opportunity.  So too it is with gas & oil.

When considering what activities are normally allowed by special use permit, drilling a gas or oil well seems like a “by special use permit activity”.  It’s a no brainer.  That’s what we’ve attempted to do at the local level.  However, HB 464 specifically eliminates a special use permit for siting a gas or oil well.  Instead, it states local jurisdictions must process such an application within 21 days (this is intentionally shorter than the public notification time line required for a special use permit in order to eliminate this tool).  This administrative (only) permitting process must ultimately pass the litmus test included in this bill which states “gas & oil cannot be prohibited” and any regulations cannot be “repugnant to law”.   In fact, every facet of any ordinance we write that deals with gas & oil must now meet this litmus test.

So, at first blush, it might be easy for us to write an ordinance that says gas & oil will only be allowed in certain zones and with certain standardized setbacks, etc..  That was in fact the suggestion one of the hearing legislators proffered.  However, would that stand the litmus test of not “prohibiting gas and oil” if they were flat out excluded from any zone?  We think not, because when we attempted to include language in our county ordinance that excluded drilling in our city impact zone, we were emphatically told by industry and state officials that this would be considered a takings.  So, what are we left with?  Can the administrative permitting process envisioned in HB 464 restrict drilling in any zone?  What about set backs?  Would 500′ be acceptable and 1000′ be considered a takings and a “prohibition of gas & oil”?  It might if they believed their well pad needed to be located in a particular spot.

With the language contained in this bill, we can no longer negotiate a compatible fit where an industrial activity like gas & oil belong, because we’re forced to take a one size fits all approach and hope it passes the prohibition litmus test.

This intrusion into local land use is unprecedented in the 35 years Idaho has prescribed Planning & Zoning.  The state says it’s needed because we at the local level aren’t equipped to regulate gas & oil.  They are right.  We don’t have the expertise to address what goes on underground.  That should be their job and frankly, I’ve concerns they are even competent to do that.  On the other hand, we have 35 years experience managing what goes on above ground so their argument is just a cover.  In addition, the state and industry both feel they need this regulation to bring uniformity to the development process.  That too is a hollow argument.  There are only two counties currently involved in gas & oil.  That may change, but their excuse is just a ruse to allow gas & oil carte blanche to develop quickly without any irritation from the locals directly affected by their activity.

I know this is a lot to absorb but I’m sharing it in hopes you can learn more about where things are headed or share it with others in hopes we can slow down this bill or eliminate it altogether.  I don’t want to live next to an oil well and I know there are others who don’t either.  This bill isn’t needed at this time.  And if you can talk to the IAC folks, hopefully they will tell you what I’ve been told and heard, which is that they felt pressured to make these concessions or loose even more control in this or other local matters.

(By Tony Edmondson)

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