Court says protected area does not extend below parks

By Eric Freedman

Citizens have no legal right to vote on whether to approve leases for drilling for oil and gas under city-owned parks and cemeteries, the Michigan Court of Appeals has ruled.

A three-judge panel unanimously rejected a challenge by the nonprofit Don’t Drill the Hills Inc. to a decision by Rochester Hills to lease underground oil and gas rights to one company and to allow another company to relocate an oil pipeline.

City attorney John Staran said the decision is significant to local governments across Michigan because the court found a lease is not a “sale” of parkland that would trigger a public vote.

“The court applied common sense and the plain and ordinary meaning to ‘park’ and ‘open space,’” Staran said. “Park means park. Not the sky above and the subterranean minerals that are not part of the park.”

But Don’t Drill the Hills argued that the proper legal interpretation of “park” shouldn’t be limited to the surface.

“The park is the whole real estate parcel, and they’re saying a park is just the surface. If you extract this natural resource, which is then sold for a profit, then a portion of the property is gone because mineral rights are property,” said Megan Barnes, a cofounder of the group.

Barnes also said the lawsuit was misinterpreted as a referendum on drilling in residential and school areas, but the legal battle was actually about citizens’ right to vote.

The dispute involved two transactions:

In 2013, Jordan Development Co. obtained a five-year city lease to get oil and gas from beneath Nowicki Park, Tienken Road Park and Van Hoosen Jones Stoney Creek Cemetery. The lease prohibited the company from using hydraulic fracturing – or fracking – and from drilling on public land.

In 2013 and 2014, the city granted another company, Sunoco Pipeline, a “right of entry agreement” and an easement to replace an aging pipeline under Bloomer Park. It’s a segment of an international pipeline from Sarnia, Ontario, through Michigan, Ohio and eastward.

The Don’t Drill the Hills suit accused the city and the companies of violating a state law and a city charter provision requiring a public vote on sale of city park or cemetery land. The city charter also requires a public vote on converting parks from recreational or conservation uses.

An Oakland County judge dismissed the case without trial.

In upholding that decision, the Court of Appeals said, “A park is commonly understood in terms of the surface, and the Jordan Development lease only concerns subsurface oil and gas and does not appear to have any effect on the surface of parks or on any use of the park as a park.

“We detect no risk to the nature of the public park posed by the Jordan Development lease and no conversion of a public park to another use,” the court said.

Staran, the city attorney, said that although the Jordan Development lease remains in effect, the company notified the city that it has abandoned plans to explore in Rochester Hills after a test well in neighboring Shelby Township proved unproductive.

The Court of Appeals said the Sunoco Pipeline replacement project wouldn’t “alter the nature of Bloomer Park” and that the company’s horizontal boring method “eliminated the need to dig a trench from the surface of the park.”

Staran said that project, which installed new piping and straightened out some sharp angles to improve oil flow, is complete.

“You wouldn’t have known they were there,” he said, referring to Bloomer Park. “They didn’t harm a single tree or blade of grass. There is no physical evidence they did anything.”

Barnes, of Don’t Drill the Hills, said the group is unlikely to appeal the court decision but may start a citizens’ petition drive to amend the city charter to “more explicitly define ‘park.”

As for the appeals court decision, Barnes said, “This opens it up for other municipalities, without fear of repercussion or public outcry, to lease their parks for drilling, so long as there is no wellhead on the park itself.

“Most parks in cities are valuable properties surrounded by homes and schools with higher property values. That’s where our kids drive their bikes and we drive our cars,” she said. “It’s a little bit NIMBY [not in my backyard], but weighing the risks and benefits, residential areas are not for industrial use.”