301 Kohout v. City of Fort Worth

Richard F. Brown

 
The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.
 
Kohout v. City of Fort Worth, 292 S.W.3d 703 (Tex. App.—Fort Worth 2009, no pet.) held that a Fort Worth citizen was not harmed by the grant of a high impact gas permit under a City of Fort Worth ordinance, and thus the citizen did not have standing to file suit. Fort Worth City Ordinance Number 16986-06-2006 (“Ordinance”) provides that any person seeking to engage in gas production within the City of Fort Worth (“City”) is required to apply for and obtain a gas well permit. The Ordinance creates three types of permits: high impact permits, rural gas permits, and urban gas permits.
 
An applicant must obtain a high impact permit by permission of the City Council or by waiver for any well located within 600 feet of any “protected use,” which includes any residence, religious institution, public building, hospital, school, or public park. To obtain a high impact permit by waiver, an applicant must obtain and file with its application notarized waivers from all protected use property owners located within 600 feet of the proposed well site and post notice on the proposed well site and in a local newspaper indicating that a high impact permit has been requested.
 
An applicant must obtain a rural gas well permit for any well located in an open space of at least twenty-five acres and at least 1,000 feet from any protected use. An urban gas well permit is required for any other type of well. An urban gas well permit applicant must also post a sign on the proposed well site and publish notice in the local newspaper indicating that an urban gas well permit was requested at least ten days before the applicant submitted an application.
 
In August 2007, Chesapeake Operating, Inc. (“Chesapeake”) applied for an urban gas well permit on land located within 600 feet of Trinity Trails, a hike and bike path along the Trinity River. Chesapeake posted a sign on the proposed well site and published notice in the local newspaper indicating that it had requested an urban well permit ten days before submitting its application, as required by the Ordinance. In response, Kohout, a concerned citizen, sent a letter to the city gas inspector objecting to the location of the proposed well and claiming that Trinity Trails was a public park, a protected use under the Ordinance, which would require Chesapeake to obtain a high impact well permit. The Ordinance defines a public park as “any land area dedicated to and/or maintained by the City for traditional park-like recreational purposes, [not including] privately-owned amusement parks or privately-owned or privately- managed golf courses.”
 
The City responded to Kohout that because Trinity Trails was owned by the Tarrant Regional Water District (the “Water Board”), not the City, it was not a public park within the meaning of the Ordinance.  However, on October 5, 2007, the Water Board executed a waiver to Chesapeake, and, on October 8, 2007, the City granted Chesapeake a high impact permit after finding that all high impact permit requirements had been met.
 
Kohout requested that the City withdraw Chesapeake’s permit, claiming that it was not properly granted because Chesapeake had requested an urban gas well permit, not a high impact permit. When the City refused to withdraw the permit, Kohout filed suit claiming the City denied her constitutional right to petition the Water Board and violated her constitutional equal protection and due process rights.
 
Kohout claimed that when the City denied that Trinity Trails was a public park within the meaning of the Ordinance and effectively informed her that no waiver from the Water Board would be required, it denied her notice of Chesapeake’s application for a high impact permit, thereby denying her constitutional right to petition the Water Board. The Fort Worth Court of Appeals reasoned that if Chesapeake had originally applied for a high impact permit, posted a sign, and published notice that it had requested a high impact permit, as required by the Ordinance, Kohout would have received notice of Chesapeake’s permit application after it had already obtained the Water Board’s waiver. Because “[a]t no time before waivers are obtained does an applicant have any obligation to notify the general public that a high impact permit is being sought,” the court determined that Kohout suffered no injury to her right to petition the Water Board and thus did not have standing to pursue her claim.
 
Kohout also claimed that the City violated her constitutional right to equal protection by treating her differently than Chesapeake—by representing to her that Chesapeake did not need a waiver from the Water Board while telling Chesapeake that it needed the waiver. The court noted that to sustain an equal protection claim, a plaintiff must show that she was treated differently than similarly situated parties. The court held that because Kohout and Chesapeake were not similarly situated—Kohout was a concerned citizen and Chesapeake was an applicant—Kohout had not suffered any injury to her equal protection rights and thus had no standing to pursue her equal protection claim.
 
Kohout also claimed that the City violated her due process rights by failing to give her notice that Chesapeake had applied for a high impact permit. Under the Ordinance, the applicant, not the City, was required to give notice, and, by the time notice of the application for a high impact permit is given, any necessary waiver has already been obtained. Therefore, Kohout had not demonstrated any injury to her due process rights and thus did not have standing to pursue her due process claim.
 
The case illustrates some of the additional issues which are becoming increasingly significant in an urbanized Texas. Local ordinances layer an additional burden over the permitting process when the proposed well site is located within an incorporated city.