Jackson Kelly PLLC

Energy and Environment Monitor

Ohio Appeals Court Declines to Rule that Preclusive Effect of Oil & Gas Program Extends to Storage of Debris Used for Well Access Road

January 30, 2015

By: Robert G. McLusky

An oil and gas operator maintains a well on a vacant parcel near I-90 in Lake County.  Access to the well site is by a private roadway that needs constant repairs.  To facilitate repairs, the site owner and the well operator maintain piles of concrete and asphalt debris on the site.

Leroy Township advised the site owner and operator that its zoning resolution prohibits the on-site storage of debris, but that the owner/operator could apply for a conditional use permit.  The owner/operator declined, and continued accumulating debris.  Following enforcement action by the Township, the owner/operator sought a declaratory judgment that the Township lacked authority to enforce its zoning resolution because the regulation of oil and gas wells was pre-empted by R.C. Chapter 1509, which created a division of oil and gas and granted it “exclusive authority” to regulate the “permitting location, and spacing of oil and gas wells and production operations within the state.”  R.C. 1509.02 

By order of December 31, 2014, an Ohio Court of Appeals ruled in favor of the Township.  See Osborne v. Leroy Township, 2014-Ohio-5774.  The Court acknowledged the broad pre-emptive effect of Ohio’s oil and gas scheme as it relates to “control over the well site and the access road . . . [and] over repairs to the road and the need to maintain the road in proper shape.”  Nonetheless, the Court observed that the relevant statutes do not extend to the storage of road materials and thus do not pre-empt application of the local zoning resolution.

This article was authored by Robert G. McLusky, Jackson Kelly PLLC.  For more information on the author, click here.


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