The law is well settled that local zoning boards have broad . . . → Read More: New York Court On Zoning Boards and Area Variance]]> Hat tip to Patricia E. Salkin, Professor, Government Law Center, Albany Law School for blogging about the Matter of Kenneth Russo, Appellant v. City of Albany Zoning Board et. al., Respondents (508996).  According to New York Supreme Court, Appellate Division, Third Judicial Department:

The law is well settled that local zoning boards have broad discretion in considering applications for variances, and that judicial review is limited to determining whether the action taken by the board was

• illegal,
• arbitrary or
• an abuse of discretion.

Therefore, a zoning board’s determination will not be disturbed if it has a rational basis and is supported by substantial evidence in the record.  Furthermore, in determining whether to grant an area variance, a zoning board must weigh the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted.

Natural Gas Well versus Drinking Water Well

Hydraulic Fracturing Step 1 and 2 : Fracturing . . . → Read More: Hydraulic Fracturing or Hydraulic Fracking for Natural Gas-Visual Guide]]> Natural Gas

Methane (CH4) is an odorless, colorless, flammable gas.  It is popularly known as gas.  It is the major constituent of natural gas.  Methane minus impurities is Natural Gas.

Natural Gas Well versus Drinking Water Well

Hydraulic Fracturing Step 1 and 2 : Fracturing of Coal by Injection of Fracturing Fluid

To create or enlarge fractures in targeted coal bed, a thick fluid, typically water-based, is pumped into the coal seam at a gradually increasing rate and pressure.  Eventually the coal seam is unable to accommodate the fracturing fluid as quickly as it is injected.  When this occurs, the pressure is high enough that the coal fractures along existing weaknesses within the coal bed.  Fluid leaks occurs in the coal beds.

1. Hydraulic Fracturing Fluid Injection

Hydraulic Fracturing Step 3:  Formation of conduit with proppant

Along with the fracturing fluids, sand (or some other propping agent or “proppant”) is pumped into the fracture so that the fracture remains “propped” open even after the high fracturing pressures have been released.  The resulting proppant-containing fracture serves as a conduit through which fracturing fluids and groundwater can more easily be pumped from the coal seam.

3. Formation of conduit with Proppant

Hydraulic Fracturing Step 4:  Methane Production

To initiate CBM (Coal Bed Methane) production, groundwater and some of the injected fracturing fluids are pumped out from the fracture system in the coal seam.

4. Hydraulic Fracturing: Methane Production

Hydraulic Fracturing Step 5: Extraction of Methane

Methane is not structurally trapped in the natural fractures in coal beds.  Rather, most of the methane is adsorbed to the coal.  Adsorption is the adhesion of atoms, ions, biomolecules or molecules of gas to a surface.  As pumping continues, the pressure eventually decreases enough so that methane desorbs from the coal, flows toward, and is extracted through the production well.

5. Hydraulic Fracturing : Methane Extraction

Federal stimus money at work on Bainbridge Road in Solon Ohio

Kevin Westbrooks, Traffic Engineer, Solon, Ohio wrote about the temporary road on Bainbridge Road:

Changing the traffic operations from two-way . . . → Read More: The Million Dollar Temporary Bainbridge Road in Solon Ohio]]>

Government waste or the nature of development or democracy at work

Federal stimus money at work on Bainbridge Road in Solon Ohio

Kevin Westbrooks, Traffic Engineer, Solon, Ohio wrote about the temporary road on Bainbridge Road:

Changing the traffic operations from two-way to one-way will divert traffic through other congested intersections and cause cut-through traffic.  There are improvements that can be made to help with the flow of traffic but this traffic cannot be fully accommodated.

Wayne Godzich, Police Chief, Solon, Ohio wrote about the temporary road on Bainbridge Road:

Although we are sympathetic with the resident’s concerns, we should never jeopardize the Emergency and Medical Services times associated with transporting victims to a medical facility.  If one life was lost because it required a longer time to transport a victim to a medical facility knowing it could have been avoided, I personally would have a difficult time dealing with that loss of life.

William Shaw, Fire Chief, Solon Ohio wrote about the temporary road on Bainbridge Road:

It is my opinion that two way traffic on Bainbridge Road affects the least number of people while providing the maximum amount of safety benefit with the least cost to City of Solon

According to the grapevine, a number of secondary stakeholders in the Bainbridge Road reconstruction project, supported the construction of the million dollar two-way temporary road because they did not wish to deal with the cut through identified by the Traffic Engineer Kevin Westbrooks.  Further, the number of these secondary stakeholders were many more than the primary stakeholders who are understandably riled up about the temporary road cutting through their lot and the impacts of construction.  In my opinion, the majority decision by the Solon City Council to vote in favor of the construction of the two-way temporary road for Bainbridge Road project was an appropriate one because it was in the best interest of the City.

Ohio State Auditor, Mary Taylor, conducted a special audit of the City of Solon to determine if City of Solon received the quantity and quality of material billed by the contractor for the contracts entered into with Midwest Paving, Chaney Cement Contractors, Inc. (for the . . . → Read More: 11 engineering recommendations for City of Solon, Ohio]]>

Credit: Sue Reid, The Solon Times

Ohio State Auditor, Mary Taylor, conducted a special audit of the City of Solon to determine if City of Solon received the quantity and quality of material billed by the contractor for the contracts entered into with Midwest Paving, Chaney Cement Contractors, Inc. (for the extended period of January 1, 2001 through December 31, 2007), and MGL Enterprises, Inc.  This engagement was conducted in accordance with the Quality Standards for Inspections established by the President’s Council on Integrity and Efficiency (January 2005).  The results of the special (cost to the Solon taxpayer $ 165,000) audit were provided to City of Solon Mayor, Susan Drucker.  An extract from Ohio State Auditor’s special audit report follows:

GENERAL CONTRACT NON COMPLIANCE TO OHIO REVISED CODE AND INTERNAL CONTROL RECOMMENDATIONS TO CITY OF SOLON

1. Destruction of Public Records

Ohio Rev. Code Section 149.351 states in pertinent part that “all records are the property of the public office and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in part, except as provided by law or under rules adopted by the records commissions provided for under sections 149.38 to 149.42 of the Revised Code…” 1 During the Period, there were construction reports, concrete delivery logs, itemized sheets and drop slips which the City of Solon was unable to provide.  Additionally, the City Council approved an amount to be spent on road improvements for the year and a general list of streets needing repair. The City’s engineering department was unable to provide documents to identify areas designated for replacement or repair, and to support estimates used in bidding documents. Without maintaining complete documentation of work performed, the City of Solon is unable to monitor whether the contractor’s invoices accurately reflect the work completed. Additionally, failure to maintain the annual list of needed street repairs reduces the City’s ability to ensure the required work was completed. We recommend that all documents related to the contracts be maintained. These documents should be used to verify the amounts invoiced by the contractors prior to the City’s payment. Additionally, maintaining the documents will provide a historical timeline of prior projects for the City’s review and evaluation.

2. Bid specifications should include the actual specifications

As part of the audit we reviewed numerous contracts containing bid specifications for eight and ten inch concrete which required mesh reinforcement; however, beginning in 2004, Chaney and MGL used fiber mesh reinforcement instead of the required wire mesh. According to the City’s engineer, John Busch, Chaney and MGL were given verbal permission to use fiber mesh, which is less expensive to install than wire mesh. Mr. Busch stated the City of Solon had been allowing fiber mesh instead of wire mesh on concrete projects for the last three or four years, without updating the contracts or bid sheets, and without notifying all bidders of the change. Mr. Busch further stated that Chaney and MGL were the only two contractors that knew they could use fiber mesh instead of wire mesh. Competitive bidding only works when all competitors have the same specifications for the scope of work. To effectively competitively bid City projects all competitors should have the same specifications for the scope of work. Otherwise, the bids which are received cannot truly be compared to each other in determining the “lowest and most responsible” bidder. Chaney and MGL’s knowledge that fiber mesh could be used instead of wire mesh put other bidders at a disadvantage. This helped Chaney and MGL to submit bids which were lower than their competitors. We recommend the City of Solon update the bid documents to include the actual specifications for the job, and ensure that each bidder has received the same information from the City of Solon regarding the prospective project. The construction reports, concrete delivery logs and itemized sheets were prepared by an on-site inspector either employed by the City or contracted through a private company. Construction reports documented each day’s work. The concrete delivery logs were used on days when concrete was poured to document the amount of concrete delivered. The itemized sheets identified a running total for each bid item. The drop slips were completed by the concrete supplier and documented the location, amount and type of concrete delivered.

3. Monthly invoicing means an estimate once each month

The contract documents state, “The contractor shall submit to the City once each month a certified estimate approved by the engineer for the work performed. Not later than 30 days after the submission, the City of Solon shall make partial payment to the contractor.” In eleven of the contracts reviewed, the contractor failed to submit a certified estimate once each month as required. For one contract, the contractor failed to submit an estimate or invoice for ten months. The failure to submit estimates or invoices in a timely manner increases the risk of billing errors not being detected in a timely manner or difficulty in determining that work billed was actually completed. We recommend the City’s engineer monitor contract invoicing to confirm certified estimates and/or invoices are submitted in accordance with contract requirements.

4. Change orders must be in writing

The City’s Codified Ordinance 234.04 requires all contract amendments to be in writing and also states, “Such amendment shall have the written approval signatures of the Mayor or the authorized head of the department involved, the contractor, and the Director of Finance, and shall be approved as to form by the Director of Law.” Additionally, the standard contract language states, “If changes in the design of any portion of the work or in the requirements of the specifications are deemed necessary by the engineer, he may, in writing, order alterations to or changes in the work.” It further states, “Should the contractor desire to make any alterations in the drawings or specifications, the same shall be submitted in writing to the engineer.” For 16 of the contracts reviewed, the City of Solon either did not complete a change order when required, or failed to thoroughly complete change orders with all required information and signatures. Some of the changes not documented in a formal change order included contractors billing for items which were not part of the original contract specifications. For these items, the lack of a written change order prohibited us from determining whether changes to the contracts were paid in accordance with an agreed upon, established price. The failure to document contract changes and amendments in writing and to obtain the required signatures increases the risk of inadvertently exceeding budgetary restraints and overpayment. We recommend the finance director monitor contract payments and confirm amendments are properly completed prior to payment.

5. Project deadlines have a meaning

Each project included an established completion date. The City’s contracts contain standard language which states, “To secure any extension of time, the contractor must submit a written request to the engineer, citing specific reasons, explanations, and dates.” Additional language states the contractor agrees that the City shall deduct and retain liquidated damages for the non-completion of the work within the times established. The contracts we reviewed identified a completion date and also imposed damages for each calendar day the project was not completed past the designated date. The final day of work performed for 14 of the 28 contracts exceeded the agreed upon completion date. There was no documentation provided by the City of Solon which extended the completion date, nor were liquidated damages assessed against the contractor. The failure to enforce the completion date subjects the City’s residents to longer than necessary inconvenience and gives the contractor an advantage over other bidders for the project as those bidders may calculate their bids based on the completion date established by the City of Solon. The City should monitor contractors so they do not exceed the completion dates. If, through no fault of the contractor, the completion date cannot be attained, the City should document the cause for the delay and identify the new date. However, if the contractor repeatedly exceeds the completion date, the City should consider whether the contractor should be allowed to bid on future contracts. Additionally, we recommend the City either begin enforcing the contract language which provides for liquidated damages for not meeting the completion date, or consider removing that language from the contract documents.

MANAGEMENT COMMENTS TO CITY OF SOLON

1. Contract estimates ($4 concrete) versus Contract billings ($6 concrete)

Midwest, Chaney, and MGL’s bids for the concrete repair programs included two different classes of concrete to be used in varying amounts. Each contract documented the quantity of each type of concrete and its cost. For example, the 2007 contract with Midwest projected Midwest would use 120,000 square feet of concrete priced at $4 per square foot and 2,000 square feet of a different class of concrete priced at $6 per square foot. However, Midwest did not bill the City for any of the $4 concrete, but billed the City of Solon for 104,846 square feet of $6 concrete. Although the quantities of concrete provided in the contract were estimates, the variances between the two classes of concrete which were billed resulted in significant increased cost to the City. In the 2007 contract, the difference between the price estimate and the actual charges for concrete was $137,076. Also, the ability to charge in excess of the engineer’s estimate on certain items, without charging other items, was one of the factors which resulted in the contractor overcharging the City as indicated in the Findings for Recovery identified later in this report. We recommend the City include a more accurate estimate of quantities needed. If, for any reason, the specifications need to be changed, the city engineer should document the required change, the reason for the change, as well as the increase or decrease in estimated cost. These procedures would help ensure all bidders have the same information to submit a well informed bid and also reduce the risk of overcharges to the City.

2. Contract documents must be complete

Contract and bid documents were not entirely completed. Construction reports, concrete delivery logs and itemized sheets were not always accurately and fully completed for the 28 contracts reviewed. These documents did not always identify specific work, depth, measurements and/or square feet of concrete poured. Construction reports, concrete delivery logs and itemized sheets should be completed in their entirety, for use by the City of Solon in verifying prescribed work was completed. Failure to adequately document work being performed and comparing those reports to amounts invoiced resulted in overpayments to the contractor. We recommend all documents related to the contract be complete and accurate with all required information and signatures. This will allow the documents to be compared to the invoices and reduce the risk of paying for work that was not completed.

3. Contract start dates are real

The contractors routinely began performing work on contracts as soon as they became aware of the acceptance of their bid, prior to the contract being signed or the “notice to proceed” order being issued. For projects started prior to the contract or “notice to proceed” date, we discovered drop slips indicating work had begun; yet, inspector reports were not provided. This may indicate that an inspector was not on site, resulting in work being performed which was not documented in a formal construction report. We recommend contractors not begin work until either the contract is signed or the “notice to proceed” is issued by the City of Solon. An inspector should always be present to review the contractor’s work for adherence to contract specifications. The City of Solon should require the contractor to notify the City of the dates it intends to be working, to allow for an inspector to be on site.

4. Invoices must be checked and rechecked

Invoices contained numerous calculation errors and per unit pricing errors. This resulted in overbilling by the contractors and subsequent overpayments by the City. Invoices should be reviewed for correct unit pricing and recalculated to ascertain correct billing. Items which are “lump sum” pricing should be tracked to determine the payment does not exceed the contract approved amount. Contract items which have “allowances” requiring supporting receipts should have a copy of the receipt attached prior to payment. These procedures would enhance control over disbursements and reduce the risk of overpayments to contractors.

5. Emergency repair prices should not be without limits

During the Period, emergency repairs were not bid. According to John Busch, it was the City’s practice to use the contractor that was in the City doing the annual concrete program to do emergency repairs. Domonic Bisesi would identify the emergencies and then have the contractor perform the work. Mr. Busch also stated that the cost of repairs was not discussed or approved prior to the contractor performing the work. During an interview with Marco Leone, he indicated that if the work was an emergency, he had full discretion to charge any fees which he established. For example, during the performance of the 2006 Concrete Repair Program, one street received emergency repair work which was charged to the City for $45,000. Had this repair been paid according to the established prices in the 2006 Concrete Repair Program contract, it would have cost $9,500. However, since the emergency repairs were not bid and the contractor could establish his own price, the City paid $35,500 more than they would have been charged, had the emergency been paid from the annual contract price. In 2008 the City accepted bids for an annual contract for emergency repair work. By doing so, the emergency work will no longer automatically default to the contractor performing the City’s annual concrete program. We recommend the City ensure that emergency work includes only true emergencies, and that prices for emergency work are agreed upon in writing and in advance of the performance of work.

6. Unbalanced bids

The City received five bids for the 2002 Concrete Repair Program. Chaney was originally the second lowest bidder on this contract. The lowest bidder included two items on its bid sheet that were bid well below the cost of materials to complete the work. These same two items were also bid below cost in the prior year’s contract, which was awarded to Chaney. According to the United States Department of Transportation (USDOT), Office of Program Administration, “A mathematically unbalanced bid is one containing lump sum or unit bid items which do not reflect reasonable actual costs plus a reasonable proportionate share of the bidder’s anticipated profit, overhead costs, and other indirect costs, which he/she anticipates for the performance of the items in question.” In an interview, Sally Reemsnyder, former director of engineering, said the unbalanced bid for the 2002 Concrete Repair Program was brought to her attention by Domonic Bisesi. She stated that Mr. Bisesi did not identify Chaney’s 2001 bid as being unbalanced, which is why the 2001 contract was approved for Chaney. As a result of Mr. Bisesi notifying Ms. Reemsnyder of the 2002 lowest bidder’s unbalanced bid, Ms. Reemsnyder rejected the original bids and held a second bid opening. This time, Chaney was the lowest bidder and was awarded the contract. The 2001 Concrete Repair Program contract was awarded to Chaney with an unbalanced bid. Because no one at the City identified the bid as unbalanced, Chaney received the contract at an unfair advantage over the other bidders. We recommend the City perform a detailed review of all bid documents to ensure the lowest bidder is not submitting an unbalanced bid. USDOT recommends that bids be analyzed by considering whether the bid is mathematically unbalanced and the effect the unbalanced bid items have on the total contract amount. Bids should also be evaluated for reasonable conformance with the engineer’s estimate.

Download the report from Ohio State Auditor Mary Taylor  Solon_City_of_01-07_Special_Cuyahoga

One rotten apple spoils the whole barrel

Road sense is the offspring of courtesy and the parent of safety.  On the eve of Memorial Day, officers of Solon Police Department were observed handing out educational materials related to NHTSA . . . → Read More: The Three E’s of Traffic Safety]]>

Click It Or Ticket campaign near Solon Recreation Center

The Three E’s of Traffic Safety

1. Public Education
2. Law Enforcement
3. Traffic Engineering

Road sense is the offspring of courtesy and the parent of safety.  On the eve of Memorial Day, officers of Solon Police Department were observed handing out educational materials related to NHTSA funded Click It or Ticket campaign at the three way stop intersection near Solon Recreation Center.   Officers were approaching passing motorists ahead of stop signs and reminding them that law enforcement officers will be out enforcing the seat belt laws during the long weekend.  It was emphasized in the flier that wearing a seat belt cuts the chances of death or serious injury in half  in a traffic crash.  This is an intersection where visibility is excellent and its not uncommon to see motorists failing to come to a complete stop at the stop signs; traffic enforcement is occasionally done by Solon Police Department here.

In 2007, there were over 600 fatalities in Ohio in which the driver or passengers were not wearing their seat belt.  

For new residents of Northeast Ohio, one of the lesser known facts about the region might be its association with its oil and natural gas wells. The State of Ohio has about 274,733 wells yielding 1.126 billion barrels of crude oil and more . . . → Read More: Oil and Natural Gas Wells-Ohio Residential Property Disclosure Form]]>

Natural Gas in Marcellus and Davonian Shale in Appalachian Basin

For new residents of Northeast Ohio, one of the lesser known facts about the region might be its association with its oil and natural gas wells. The State of Ohio has about 274,733 wells yielding 1.126 billion barrels of crude oil and more than 8.35 trillion cubic feet of natural gas. Research completed by Ohio Department of Natural Resources’s Divisions of Mineral Resources Management and Geological Survey indicates that Ohio has significant remaining producible oil and natural gas reserves.

The subject of natural gas well drilling has been controversial and contentious in the Northeast Ohio region. Like in any multi-faceted and complex issue, there are proponents and opponents. One side is concerned about the proximity of the drilling area to residential properties, pollution, decrease in property value etc. The other side contends that the drilling is done in a safe and considerate manner etc. Current lower gas prices, livelihood, dilution of home rule and royalties received by mineral rights owners from oil and gas wells form key components of this equation.

Citizens who relocate to Northeast Ohio area from those states which do not have a prominent oil and gas industry and plan on buying a home may not become fully aware of this inconspicuous facet of the area.

• Fee simple is the most basic and unconstrained type of land ownership. The owner controls the surface, the subsurface and the air above the land. Mineral rights is the privilege held by a person or business of exploring and making moolah from the sale of minerals (oil, gas, and other resources) found on the surface or below land. Mineral rights can be sold or leased separately from the land ownership. Prospective home buyers should do due diligence to find who owns the mineral rights for the parcel. Caveat Emptor.

• Prospective home buyers should note that the Ohio Residential Property Disclosure Form does have a disclosure related to wells.  However, the form also indicates that home owners do not make any representations about offsite conditions which a home owner may interpret to mean that he/she does not have to make any representations about wells located outside the parcel boundaries, even if this matter is actually known.  So, Buyer Beware applies and the form appropriately encourages a professional home inspection. However, an oil and gas well location study is probably outside the scope of a typical professional home inspection.

Ohio Geological Survey Emergency Oil and Natural Gas Well Locator

Ohio Department of Natural Resources Division of Mineral Resources Management has established a Emergency Oil and Natural Gas Locator where information about well locations can be found.

States ranked by drilled oil and natural gas wells

Texas
Oklahoma
Pennsylvania and
Ohio

Some Cuyahoga County Communities with oil and natural gas wells

Gates Mills
Broadview Heights
North Royalton
Independence
Brecksville

Some Geauga County Communities with oil and natural gas wells

Chester Township
Munson Township
Russell Township

Some Lake County Communities with oil and natural gas wells

Kirtland
Concord Township
Willoughby
Madison Township

Reference: Water Resources and Natural Gas Production from the Marcellus Shale by Daniel Soeder and William Kappel, US Department of Interior, US Geological Survey and the Plain Dealer.

Something is not right when people have to informed through a sign that Christmas is about Jesus Christ and not shopping.

Municipal zoning or other rules may permit installation of non commercial opinion signs if the signs meet the size, color, location and other prescribed criteria.  These yard signs are . . . → Read More: Jesus is the reason for the season]]>

Christmas 2009

Something is not right when people have to informed through a sign that Christmas is about Jesus Christ and not shopping.

Municipal zoning or other rules may permit installation of non commercial opinion signs if the signs meet the size, color, location and other prescribed criteria.  These yard signs are a tribute to our First Amendment.

However, some yard signs or commercial electronic message boards, in particular, that are becoming too common on higher speed roadways, are likely to be cause of distraction to some iPhone slinging motorists and may lead to traffic crashes.

Related Post: Unhappy with Kathleen Falk and Wisconsin Department of Transportation

The Manual on Uniform Traffic Control Devices, or MUTCD defines the standards used by road managers nationwide to install and maintain traffic control devices on all public streets, highways, bikeways, and private roads open to public traffic.

This atypical stop sign is installed off of . . . → Read More: Atypical Stop Sign in City of Aurora, Ohio]]>

Atypical Stop Sign in City of Aurora Ohio

The Manual on Uniform Traffic Control Devices, or MUTCD defines the standards used by road managers nationwide to install and maintain traffic control devices on all public streets, highways, bikeways, and private roads open to public traffic.

This atypical stop sign is installed off of South Bissell Road at its intersection with West Pioneer Trail, near Walden of Aurora in City of Aurora Ohio.  Purists might find this City of Aurora sign unappealing but the City cannot be blamed, in this case, for being reactive to traffic issues.   A stop ahead warning sign, W3-1a, is installed in advance of this atypical stop sign on South Bissell Road.

According to James Jordan, Assistant Director, Department of Public Service, City of Aurora, this stop sign configuration is used because the stop sign area, ocassionally, get partially covered with vegetation.

At a few locations in City of Aurora, stop ahead warning signs are installed even where visibility is probably sufficient.  Traffic engineers whose motto is, Less is More, are likely to frown upon this.

W3-1a

MUTCD states that a Stop Ahead (W3-1 or optional W3-1a) sign shall be used where a STOP sign is not visible for a sufficient distance to permit the road user to bring the vehicle to a stop at the STOP sign.  This sign is prescribed for low volume roads.  MUTCD defines a low volume road as a facility lying outside of built-up areas of cities, towns, and communities, and having a traffic volume of less than 400 AADT.   Alleys and residential streets in a city or town are within the city or town and hence cannot be considered a low volume road for MUTCD purposes.