Fracking, home rule and sports related development all rolled into one

In 2010 the City of Pittsburgh became the first municipality to ban fracking within its city limits. Gas companies had acquired subsurface mineral rights and had been poised to begin drilling throughout the city including under parks and cemeteries. The ordinance, which was drafted by the Community Environmental Legal Defense Fund (CELDF), takes the somewhat novel approach of enacting a bill of rights not only for the residents of Pittsburgh but also for “natural communities and ecosystems”. It goes beyond even that by stripping corporations of their “personhood” status under the Pennsylvania and U.S. Constitutions. The ordinance, which was passed unanimously, became effective despite the mayor’s refusal to sign the measure. It is worth nothing that Pittsburgh sits at the epicenter of the Marcellus Shale gas drilling frenzy.

Two years later numerous communities have enacted tracking bans though in most cases by way of zoning actions not the kind of rights-based ordinance that Pittsburgh and a few other communities have enacted. Recently the Pennsylvania Legislature adopted Act 13 which strips local governments of the authority to regulate or prohibit any gas drilling or related activities through zoning. This legislation was aimed at overturning a 2009 Pennsylvania Supreme Court opinion which held that local zoning could regulate gas drilling and such efforts were not in conflict with the state’s oil and gas laws.

Seven Pennsylvania municipalities have filed action to overturn the law, and Pittsburgh’s City Council has voted unanimously to support that legal challenge. A lower court has already issued a preliminary injunction delaying the implementation of Act 13 and at least for the moment leaving in place local fracking bans.

Back in Pittsburgh some developers are raising concerns about the possible impact of that city’s ban on downtown office development. The concern is that major energy and gas drilling companies will be reluctant to lease office space in a city that officially opposes their core business. Apparently, the mayor has tried to no avail to get the City Council to reconsider its ban. The Penguins’ 3 million square foot mixed-use project is one of those  that is potentially affected.

Since the Marcellus Shale formation does not extend into Vermont, I was only dimly aware of the controversy swirling around fracking in states to our west. However, since starting to follow the coverage of the issue, it is clear to me this is a matter of great significance not only in terms of exploiting a new, domestic source of energy but in terms of environmental protection and local versus state land use regulation.




The Green House Project

One of my current quests is to get a better handle on the looming senior housing crisis and, in particular, whether there is a better way to address the needs of elders who are currently housed in traditional nursing homes. During the course of my research I came across the Green House Project. Dr. William Thomas founded the movement which espouses a philosophy of providing small homes (no more than 12 residents), providing privacy with single rooms each with their own bath, and offering care that recognizes the individuality, autonomy and dignity of each resident.

I had the opportunity this past week to attend a two day workshop offered by NCB Capital Impact, which manages the Green House Project nationally. The workshop was held at the Lebanon Valley Brethren Home in Palmyra, Pennsylvania, where there are four operating Green Houses.

Green Houses, Palmyra, PA

The strategy is to combine an authentically residential rather than institutional design approach along with a fundamental refocusing of care from one in which the provider is at the center to one in which the elders are center stage. Designs must include a great room incorporating a communal dining table, a working fireplace, and an open kitchen where all meals are prepared.

Green House great room

Individual bedrooms each with their own bath are clustered around this great room.

Floor plan for Sheridan, WY, Green House

Perhaps even more striking is the way in which staffing is organized. Certified nursing assistants are called Shahbazim and are responsible not only for primary care of the residents but also perform all housekeeping and cooking duties. The combination of the small scale and these “jack of all trade” caregivers lead to extremely close relationships being developed between the elders and Shahbazim.

I have to admit that I was skeptical most nursing home patients would benefit from the Green House setting but based on the research done to date and the time I spent in an operating Green House visiting with residents and staff left me convinced that even the most compromised elder does indeed experience a significant improvement in his or her quality of life in this kind of home setting.

From a developer’s or operator’s standpoint, it is heartening to learn that operating costs for a Green House are almost identical to those for a traditional nursing home.

After a serious stroke, my mother spent the last several years of her life in a traditional nursing home. While it was a well run facility, my mother never felt comfortable there often complaining about the lack of privacy. Throughout the two day workshop, I kept wishing that Green Houses had appeared in time for my mother.

Marcellus Shale – gas or mineral?

Much of the northern Appalachian region is in the midst of an energy boom as companies race to exploit the region’s Marcellus Shale formation which contains vast quantities of natural gas. The government’s estimate of the amount of gas increased 150-fold over the past decade. You have undoubtedly read about the environmental concerns starting to be raised about hydraulic fracturing which requires the injection of large quantities of water and chemicals to release the trapped gas.

Marcellus Shale - concentrations of gas

Energy companies have invested billions of dollars in acquiring mineral rights and putting in place the necessary infrastructure to access the gas reserves. The validity of at least some of those mineral rights has been called into question by the Pennsylvania Supreme Court’s decision to review whether the long established Dunham Rule applies to Marcellus Shale gas. That rule required the landowner to expressly state it was transferring mineral rights and oil and gas in the deed of conveyance. In this case the party holding the mineral and oil (but not gas) rights under a parcel is arguing that the Marcellus Shale gas is not free flowing and therefore should be treated like a mineral not like a gas.

Until the Court rules, there will be a great deal of uncertainty among holders of mineral rights that did not include the word “gas” whether or not they also hold gas rights. Holders of mineral rights that expressly included oil and gas clearly own the right to the Marcellus Shale gas whether the Court finds it to be a gas or a mineral.