Athens City Council members agreed Monday evening to codify into city law two successful citizen initiatives, one for de-penalization of marijuana in the city and the other banning fracking and other oil and gas related activities in city limits.
Council spent the first 40 minutes of Monday’s committee meetings hearing citizen comments regarding the codification of two citizen initiative petitions that have yet to be written into the official city code.
City voters overwhelmingly approved the marijuana de-penalization initiative in November, and passed the anti-fracking Community Bill of Rights and Water Protection initiative in 2014 by a heavy margin. With no proposals for drilling activities in the city since then, the Bill of Rights has not had any reason for enforcement.
“Way back when this ordinance or this petition was originally adopted by the voters, it came to council and we really didn’t do anything with it, we didn’t codify it,” City Council member Jeffrey Risner explained, referring to the Community Bill of Rights.
He added that council had adopted an ordinance to add the language from the petition to the code but due to a “clerical error,” the language was not the same as what voters had approved on the ballot.
Risner said the problem could easily be solved by having City Council President Chris Knisely sign and approve a corrected version of the Bill of Rights ordinance with the appropriate language – a version that Risner said was likely ready for approval already.
Both measures should be voted on and codified in next Monday’s regular City Council meeting, he said.
During Monday’s committee meetings, Risner pointed out that the city code has no designated spot for citizens’ initiatives. “So, it’s been decided that we’ll create a new section of code and that’ll be called Title 49,” Risner said. “So that anybody anywhere in the state of Ohio who may think, ‘I think I’d like to go down to Athens City and maybe drill a fracking well…’ (will know) the City of Athens has got laws against that.”
Dick McGinn, a leader of the committee that got the Community Bill of Rights initiative passed in Athens, said his goal at Monday’s meeting was to persuade council to follow the plan outlined by council member Risner. “I wasn’t quite aware that the disposition of council was already so far in favor,” he said.
McGinn thanked council but quickly added, “We do have another… huge issue having to do with enforcement.”
He was one of four residents who spoke to City Council about the petition ordinances, the enforcement of local laws and home rule. “When citizens pass an initiative, it’s not like a separate question about enforcement,” McGinn said. “The water belongs to everybody; the water flows through everybody’s property – state, federal and local and private. If we’re going to protect that water, we have to have laws that will do just that.”
That could be a tall order, however, since courts have consistently ruled against similar Community Bill of Rights law in other communities in Ohio and other states. In Ohio’s case, the courts have concluded that these local laws violate state law that reserves oil-and-gas regulation and enforcement to the Ohio Department of Natural Resources.
The Pennsylvania law firm that has provided a template of Community Bill of Rights laws to communities across the country, including Athens, recently hit a speed bump in federal court in that state, with two of its attorneys sanctioned for repeatedly advancing those Bill of Rights arguments in a case involving Grant Township, a community in Indiana County, Pennsylvania (see story on page 2 of today’s issue).
During Monday’s meeting, Caleb Brown of Athens, the former treasurer for the TACO committee (which led efforts to approve the marijuana de-penalization ordinance), noted that both petitions – marijuana and anti-fracking bill of rights –received a higher percentage of the votes than any single person running for political office in their respective elections.
Brown said he believes local government should go “out of its way to honor its citizens’ will,” adding that he found at least nine citizen initiative petitions that have been passed throughout Ohio in the last five years, seven of which have yet to be codified.
“I think it’s great that here in Athens tonight, we’re working on adding two more,” Brown said. “But I’m still concerned about the enforcement of those ordinances.”
Apparently talking mainly about the TACO law, Brown asked, “Do officers of the city have to follow what the citizens wanted? Do officers of the university working within the city have to follow what citizens want? Do these ordinances apply everywhere to everyone (in the city)? I believe they should.”
Brown and some of the other speakers argued that neither the cannabis ordinance nor the Bill of Rights ordinance conflict with general state law, meaning the city’s “home rule” powers would apply to both – an argument that Ohio courts thus far have not upheld.
Athens Law Director Lisa Eliason, however, on Tuesday said she doesn’t believe “the act of codifying the Bill of Rights Initiative Petition exposes the city of Athens to the type of liability set forth in the Pennsylvania case.
“The city of Athens Bill of Rights Initiative Petition passed by an overwhelming majority and represents the ‘home rule’ will of the people.”
ENFORCEMENT OF THE cannabis law already has been an issue as the Ohio University Police Department has still been citing offenders under state code since TACO passed.
“One other concern I have is: what if the state decides to use frack brine on highways, for example the part of (U.S. Rt.) 33 that goes right through the East Side neighborhoods, and then that runs off into our water supply, into people’s backyards, into the Hocking River?” Brown asked.
OU associate professor emeritus John Howell said the discussion is part of a “larger issue” of what home rule means in Ohio.
“Rights become real when citizens… insist on having them, like the founders of the country did,” Howell said.
McGinn added that he believes that the city’s ordinances should be “enforced” in the city of Athens, including “on Ohio University’s campus and properties that are owned” by state and federal governments.