Article XXII: Prohibition of Natural Gas and Petroleum Exploration, Extraction and Support Activities
[Added 5-16-2012 by L.L. No. 3-2012]
This article shall be known as the "Prohibition of Gas and Petroleum Exploration and Extraction Activities, Underground Storage of Natural Gas, and Disposal of Natural Gas or Petroleum Extraction, Exploration, and Production Wastes."
Legislative authority; intent.
The Village Board of the Village of Naples hereby adopts this article pursuant to the authority described herein as follows: this article is intended to be consistent with and is adopted pursuant to the authority granted to the Village Board of the Village of Naples under the New York State Constitution and the Laws of the State of New York, including but not limited to the following authorities: New York State Constitution Article IX, § 2(c)(ii)(6) and (10); Municipal Home Rule Law §§ 10(1)(i); 10(1)(ii)(a)(6), (11), (12), and (14); 10(1)(ii)(d)(3); 10(2); 10(3) and 10(4)(a) and (b); Statute of Local Governments § 10(1), (6), and (7); Village Law § 4-412(1)(a) and Article 7 (Building Zones), inclusive; Environmental Conservation Law §§ 17-1101 and 27-0711; and New York State Public Health Law § 228 (2) and (3).
This article is a police power and land use regulation. This article is intended and is hereby declared to address matters of local concern, and it is declared that it is not the intention of the Village to address matters of statewide concern. This article is intended to act as and is hereby declared to exercise the permissive incidental control of a zoning law and land use law that is concerned with the broad area of land use planning and the physical use of land and property within the Village, including the physical externalities associated with certain land uses, such as negative impacts on roadways and traffic congestion and other deleterious impacts on a community. Upon its effective date, this article shall become part of Chapter 385 of the Code of the Village of Naples, entitled "Zoning," and shall be deemed to be a part of the Zoning Law of the Village of Naples.
Findings of fact. The Village Board has found, determined, and made the declarations of findings set forth as follows:
Naples is a community in Ontario County that takes great pride in and assigns great value to its rural residential character, small-town atmosphere, and scenic and other natural resources. Among these resources is Naples Creek, which flows through the Village and serves as a spawning ground for rainbow and brown trout and is also a major tributary of Canandaigua Lake, a source of drinking water for several municipalities and private residences which surround the lake.
Many residents are dependent upon aquifers and wells for life-sustaining water. Maintaining the quality of water resources within the Village is critical to protecting the natural environment of the Village, the general health and welfare of Village residents, and the local economy.
Preservation of the Village's irreplaceable scenic sites, air quality and water quality, and priceless and unique character is of significant value to the inhabitants of the Village and to the tourists who visit here. These goals have all been adopted by the Village in its Comprehensive Plan.
The Village's rich natural environment is a valuable asset that creates a sense of identity and well-being for residents of the area. Preserving and protecting the scenic, recreational, and other natural resources of the Village is important for both a healthy environment and a vibrant economy. Aesthetic issues are real and evoke strong reactions from people. They deeply affect the way people feel about a place: whether or not businesses will want to locate in, or people will want to live in and visit, a place.
Allowing the activities prohibited by § 385-77 of this article could impair the existing character of the Village because, by their very nature, such activities have the potential to produce a combination of negative impacts upon the environment and upon the people living in or in proximity to the communities in which they are located. Such negative impacts may include, without limitation, traffic, noise, vibrations, fumes, damage to roadways, degradation of water quality, degradation of air quality, decreased availability of affordable housing, damage to and loss of agricultural lands and soils, damage to and loss of open space, natural areas, and scenic views, decreased recreational opportunities, and damage to the tourism industry.
If one or more of the activities prohibited by § 385-77 of this article are conducted within the Village, traffic generated thereby could be hazardous or inconvenient to the inhabitants of the Village and could be dangerous to pedestrians (especially children), cyclists, and motorists and could result in traffic congestion that could delay emergency response times for medical emergencies, fires and accidents. Roads are a critical public resource and constitute a major investment of the public's money. The Village is not in a position to bear the high costs associated with the road use impacts that accompany many of the activities prohibited by § 385-77 of this article. Accidents involving heavy trucks have greater potential for death than those involving smaller vehicles. Increased truck traffic increases air pollution and noise levels and decreases the quality of life and property values for those living nearby.
If one or more of the activities prohibited by § 385-77 of this article are conducted within the Village, the air pollution, dust and odors generated thereby (whether on site or by truck traffic to and from the proposed site of such activities) could be hazardous or inconvenient to the inhabitants of the Village. Air pollution is a known hazard to the public health.
Allowing one or more of the activities prohibited by § 385-77 of this article to be conducted within the Village could negatively impact the quality of water resources within the Village. Water pollution is hazardous to the public health. If a domestic water source is contaminated, remediation is time and cost intensive and may not restore the water resource to a quality acceptable for domestic use.
If one or more of the activities prohibited by § 385-77 of this article are conducted within the Village, noise, vibrations, and light pollution typically caused by such activities could be hazardous or inconvenient to the inhabitants of the Village. Noise, traffic congestion, nighttime lighting, and vibrations can have negative effects on human health and wildlife.
The creation, generation, keeping, storage or disposal of natural gas and/or petroleum extraction, exploration or production wastes (as that term is defined at § 385-76 of this article) within the Village could have a negative impact on the public health, safety and welfare of the inhabitants of the Village.
The high costs associated with the disposal of natural gas and/or petroleum extraction, exploration or production wastes (as that term is defined at § 385-76 of this article) have in other localities resulted, and could in our Village result, in persons seeking to avoid such costs by depositing such material along roadways, in vacant lots, on business sites, in the private dumpsters of others, or in other unauthorized places. Such activities could pose a hazard to the public health, safety, and welfare of the inhabitants of the Village.
The explicit proscription of the activities prohibited by § 385-77 of this article is a legitimate goal of land use laws. There is no question that exclusion of specified industrial uses is a legitimate goal of such laws:
As the United States Supreme Court stated in Town of Belle Terre v. Boraas, 416 U.S. 1 (1974):
"The concept of public welfare is broad and inclusive.... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the [local] legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." 416 U.S. at 6.
See also In the Matter of Gernatt Asphalt Products, Inc. v. The Town of Sardinia, 87 N.Y.2d 668 (1996), where the Court of Appeals, New York State's highest court, evaluated a claim that a town's prohibition of mining throughout the town was in effect unconstitutional exclusionary zoning and held as follows:
"We have never held, however, that the ... [exclusionary zoning] test, which is intended to prevent a municipality from improperly using the zoning power to keep people out, also applies to prevent the exclusion of industrial uses. A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole." 87 N.Y.2d at 683, 684.
The purpose underlying the Village Board's passage of this article, as articulated, found, and declared by the Village Board, is set forth as follows: The purpose of this article is to enable the Village of Naples to prohibit the construction, operation, and establishment of, and the submission and processing of applications for permits, zoning permits, special permits, zoning variances, building permits, operating permits, site plan approvals, subdivision approvals, certificates of occupancy, certificates of compliance, temporary certificates, and other Village-level approvals respecting, the activities prohibited by § 385-77 of this article. The Village Board expressly finds that the prohibitions hereby enacted are in the public interest and are necessary to protect the public health and general welfare of the citizens of the Village and to preserve the existing social, economic, and aesthetic qualities presently enjoyed by those citizens.
For purposes of this article, the following terms shall have the meanings respectively set forth below:
- AGRICULTURE USE
- Land used for the production of crops and/or livestock and livestock products (as those terms are defined at § 301 of the New York State Agriculture and Markets Law).
- BELOW REGULATORY CONCERN
- Refers to radioactive material in a quantity or of a level that is distinguishable from background radiation (as that phrase is defined at 10 CFR 20.1003) but which is below the regulation threshold established by any regulatory agency otherwise having jurisdiction over such material in the Village.
- BOARD OF APPEALS
- The Zoning Board of Appeals of the Village.
- INJECTION WELL
- A bored, drilled or driven shaft whose depth is greater than the largest surface dimension, or a dug hole whose depth is greater than the largest surface dimension, through which fluids (which may or may not include semisolids) are injected into the subsurface and less than 90% of such fluids return to the surface within a period of 90 days.
- LAND APPLICATION FACILITY
- A site where any natural gas exploration and/or petroleum production wastes are applied to the soil surface or injected into the upper layer of the soil.
- NATURAL GAS
- Methane and any gaseous substance, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rarefied state at standard temperature and pressure conditions, and/or gaseous components or vapors occurring in or derived from petroleum or other hydrocarbons.
- NATURAL GAS AND/OR PETROLEUM EXPLORATION ACTIVITIES
- Geologic or geophysical activities related to the search for natural gas, petroleum or other subsurface hydrocarbons, including prospecting, geophysical and geologic seismic surveying and sampling techniques, but only to the extent that such activities involve or employ core, rotary, or any other type of drilling, or otherwise making any penetration or excavation of any land or water surface, in the search for and evaluation of natural gas, petroleum, or other subsurface hydrocarbon deposits.
- NATURAL GAS AND/OR PETROLEUM EXTRACTION ACTIVITIES
- The digging or drilling of a well for the purposes of exploring for, developing or producing natural gas, petroleum or other subsurface hydrocarbons, including, without limitation, any and all forms of shale fracturing.
- A. Any of the following, in any form, and whether or not such items have been excepted or exempted from the coverage of any federal or state environmental protection laws or have been excepted from statutory or regulatory definitions of "industrial waste," or "hazardous" or "toxic" substances, materials, or wastes, and whether or not such substances are generally characterized as waste:
- (1) Below-regulatory-concern radioactive material, or any radioactive material which is not below regulatory concern but which is in fact not being regulated by the regulatory agency otherwise having jurisdiction over such material in the Village, whether naturally occurring or otherwise, in any case relating to, arising in connection with, or produced by or incidental to the exploration for, the extraction or production of, or the processing, treatment, or transportation of natural gas, petroleum, or any related hydrocarbons;
- (2) Natural gas or petroleum drilling fluids;
- (3) Natural gas or petroleum exploration, drilling, production or processing wastes;
- (4) Natural gas or petroleum drilling treatment wastes (such as oils, frac fluids, produced water, brine, flowback, sediment and/or any other liquid or semiliquid material);
- (5) Any chemical, waste oil, waste-emulsified oil, mud, or sediment that was used or produced in the drilling, development, transportation, processing or refining of natural gas or petroleum;
- (6) Soil contaminated in the drilling, transportation, processing or refining of natural gas or petroleum;
- (7) Drill cuttings from natural gas or petroleum wells; or
- (8) Any other wastes associated with the exploration, drilling, production or treatment of natural gas or petroleum.
- B. This definition specifically intends to include some wastes that may otherwise be classified as "solid wastes which are not hazardous wastes" under 40 CFR 261.4(b). The definition of "natural gas and/or petroleum extraction, exploration or production wastes" does not include recognizable and nonrecognizable food wastes or waste generated by agriculture use.
- NATURAL GAS AND/OR PETROLEUM EXTRACTION, EXPLORATION OR PRODUCTION WASTES DISPOSAL/STORAGE FACILITY
- Any of the following: tanks of any construction (metal, fiberglass, concrete, etc.); impoundments; pits; evaporation ponds; or other facilities, in any case used for the storage or treatment of natural gas and/or petroleum extraction, exploration or production wastes that are being held for initial use; have been used and are being held for subsequent reuse or recycling; are being held for treatment; or are being held for storage.
- NATURAL GAS AND/OR PETROLEUM EXTRACTION, EXPLORATION OR PRODUCTION WASTES DUMP
- Land upon which natural gas and/or petroleum extraction, exploration or production wastes, or their residue or constituents before or after treatment, are deposited, disposed, discharged, injected, placed, buried or discarded without any intention of further use.
- NATURAL GAS AND/OR PETROLEUM SUPPORT ACTIVITIES
- Any one or more of the following:
- A. Natural gas compression facility;
- B. Natural gas processing facility;
- C. Natural gas and/or petroleum extraction, exploration or production wastes disposal/storage facility;
- D. Natural gas and/or petroleum extraction, exploration or production wastes dump;
- E. Land application facility;
- F. Underground injection; or
- G. Underground natural gas storage.
- NATURAL GAS COMPRESSION FACILITY
- A facility or combination of facilities that moves natural gas or petroleum from production fields or natural gas processing facilities in pipelines or into storage. The term shall include equipment for liquids separation and natural gas dehydration, and tanks for the storage of waste liquids and hydrocarbon liquids.
- NATURAL GAS PROCESSING FACILITY
- A facility that separates and recovers natural gas liquids (NGLs) and/or other nonmethane gases and liquids from a stream of produced natural gas using equipment for any of the following:
- Any individual, public or private corporation, for profit or not for profit, or any association, partnership, limited-liability company, limited-liability partnership, firm, trust, estate, or any other legal entity whatsoever which is recognized by law as the subject of rights and duties.
- The spontaneous emission of particles (alpha, beta, neutrons) or photons (gamma) from the nucleus of unstable atoms as a result of radioactive decay.
- RADIOACTIVE MATERIAL
- Material in any form that emits radiation, but only if such material has been moved from its naturally occurring location through an industrial process. Such material is radioactive material for purposes hereof, whether or not it is otherwise exempt from licensing and regulatory control pursuant to the New York State Department of Labor, the United States Nuclear Regulatory Commission, the United States Environmental Protection Agency, the United States Department of Energy, the United States Department of Transportation, or any other regulatory agency.
- Below the surface of the earth, or below the surface of a body of water, as the context may require.
- UNDERGROUND INJECTION
- Subsurface emplacement of natural gas and/or petroleum extraction, exploration or production wastes by or into an injection well.
- UNDERGROUND NATURAL GAS STORAGE
- Subsurface storage, including in depleted gas or oil reservoirs and salt caverns, of natural gas that has been transferred from its original location for the primary purpose of load balancing the production of natural gas; includes compression and dehydration facilities.
- The Village of Naples, Ontario County, New York.
- VILLAGE BOARD
- The Village Board of Trustees of the Village.
From and after the effective date of this article, no application for a permit, zoning permit, special permit, zoning variance, building permit, site plan approval, subdivision approval or other Village-level approval shall be accepted, processed, approved, approved conditionally, or issued for the construction, establishment, or use or operation of any land, body of water, building, or other structure located within the Village for any of the following:
From and after the effective date of this article, no person shall use, cause, or permit to be used any land, body of water, building, or other structure located within the Village for any of the following:
The prohibitions set forth above in Subsections A and B of this § 385-77 are not intended, and shall not be construed, to:
Prevent or prohibit the right to use roadways in commerce or otherwise for travel;
Prevent or prohibit the transmission of natural gas through utility pipes, lines, or similar appurtenances for the limited purpose of supplying natural gas to residents of or buildings located in the Village; or
Prevent or prohibit the incidental or normal sale, storage, or use of lubricating oil, heating oil, gasoline, diesel fuel, kerosene, or propane in connection with legal agriculture, residential, business, commercial, and other uses within the Village.
These prohibitions shall be in effect beginning on the effective date of this article and shall expire on the effective date of a duly enacted repeal of this article.
These prohibitions shall apply to all real property within the Village.
Under no circumstances shall the failure of the Village Board of the Village, the Zoning Board of Appeals of the Village, the Planning Board of the Village, or the Code Enforcement Officer for the Village to take any action upon any application for a permit, zoning permit, special permit, zoning variance, building permit, site plan approval, subdivision approval, or other Village-level approval constitute an approval by default or an approval by virtue of expiration of time to respond to such application.
Failure to comply with any of the provisions of this article shall be an unclassified misdemeanor as contemplated by Article 10 and § 80.05 of the New York State Penal Law and, upon conviction thereof, shall be punishable by a fine of not more than $1,500 or imprisonment for not more than 10 days, or both, for the first offense. Any subsequent offense within a three-month period shall be punishable by a fine of not more than $2,500 or imprisonment for a period of not more than 30 days, or both. For purposes of this Subsection A, each day that a violation of this article exists shall constitute a separate and distinct offense.
Compliance with this article may also be compelled, and violations restrained, by order or by injunction of a court of competent jurisdiction in an action brought on behalf of the Village by the Village Board. In the event that the Village shall seek any such equitable relief, the Village shall not be required to show or prove the lack of an adequate remedy in law or post any bond or undertaking.
In the event that the Village desires or is required to take legal action to enforce this article, the violator will be responsible for any and all necessary costs and expenses incurred by the Village relative thereto, including attorneys', engineering, consulting, and experts' fees; however, any responsibility or liability therefor, and the amount thereof, shall be determined by a court or other tribunal of competent jurisdiction, and this clause shall be interpreted, construed, and applied only to the maximum extent permitted by applicable law.
Notwithstanding any provision hereof to the contrary, any natural gas and/or petroleum extraction activities that are being conducted in the Village as of the effective date of this article shall be subject to the following:
Criteria for grandfathering.
If, as of the effective date of this article, substantive natural gas and/or petroleum extraction activities are occurring in the Village and those activities are in all respects being conducted in accordance with all applicable laws and regulations, including, without limitation, pursuant to and in compliance with all valid permits required to be issued by the New York State Department of Environmental Conservation ("DEC") and all other regulating agencies, then and only then shall such activity be considered a preexisting, nonconforming use and be allowed to continue, subject, however, to the provisions of Subsections B and C of this § 385-79.
Natural gas and/or petroleum extraction activities that are being conducted in the Village as of the effective date of this article and which do not qualify for treatment under the preceding Subsection A(1) of this § 385-79 shall not be grandfathered and shall in all respects be prohibited as contemplated by § 385-77 hereof.
Upon the depletion of any well which is allowed to remain in operation after the effective date of this article by virtue of Subsection A(1) of this § 385-79, or upon any other substantive cessation of natural gas and/or petroleum extraction activities (otherwise grandfathered by virtue of Subsection A(1) of this § 385-79) for a period of more than 12 months, then and in such event the "nonconforming use" status of such activity shall terminate, and thereafter such natural gas and/or petroleum extraction activities shall in all respects be prohibited as contemplated by § 385-77 hereof.
Notwithstanding any provision hereof to the contrary, the "preexisting, nonconforming" status conferred and recognized by Subsection A(1) of this § 385-79 is not intended, and shall not be construed, to authorize or grandfather any natural gas and/or petroleum extraction activities extending beyond whatever well bore is authorized in any DEC permit in existence as of the effective date of this article. Any expansion or attempted or purported expansion shall not be grandfathered under Subsection A(1) of this § 385-79, and instead shall in all respects be prohibited as contemplated by § 385-77 hereof. Grandfathered and allowed lawful preexisting uses neither have nor possess any right to expand such nonconforming use, whether above or below ground, and no such right shall be deemed, construed, or implied to exist.
Except as contemplated by § 385-81 of this article, no permit or approval issued by any local agency, department, commission or board shall be deemed valid when or to the extent that such permit or approval purports to allow or permit any activity that would violate the prohibitions set forth at § 385-77 of this article.
If any word, phrase, sentence, part, section, subsection, or other portion of this article, or the application thereof to any person or to any circumstance, is adjudged or declared invalid or unenforceable by a court or other tribunal of competent jurisdiction, then, and in such event, such judgment or declaration shall be confined in its interpretation and operation only to the provision of this article that is directly involved in the controversy in which such judgment or declaration is rendered, and such judgment or declaration of invalidity or unenforceability shall not affect or impair the validity or enforceability of the remainder of this article or the application hereof to any other persons or circumstances. If necessary as to such person or circumstances, such invalid or unenforceable provision shall be deemed severed herefrom, and the Village Board of the Village hereby declares that it would have enacted this article, or the remainder thereof, even if, as to particular provisions and persons or circumstances, a portion hereof is severed or declared invalid or unenforceable.
During the time this article is in effect, it is the specific intent of the Village Board to supersede any inconsistent provisions of any and all other local ordinances, local laws, or local resolutions or policies of the Village of Naples.
The Code Enforcement Officer is hereby designated as the enforcement officer for purposes of interpreting and enforcing this article. The Village Board reserves the right, by resolution, to change or designate additional enforcement officers.
The section and other headings and titles to clauses and phrases in this article are for convenience only and shall not be used or construed to limit or define the scope or application of the clauses and phrases so following such headings or titles. Each section of this article, whether in the nature of a preamble or otherwise, is a material part of this article.
This article shall take effect immediately upon filing with the New York Department of State.