[HISTORY: Adopted by the Town Board of the Town of Brighton 1-23-2013 by L.L. No.
1-2013. Amendments noted where applicable.]
GENERAL REFERENCES
Excavation and clearing — See Ch. 66.
This local law shall be known as the "Prohibition within the
Town of Brighton of Natural Gas and Petroleum Exploration and Extraction
Activities, the Underground Storage of Natural Gas, and the Disposal
of Natural Gas or Petroleum Extraction, Exploration, and Production
Wastes."
A.
This local law is intended and declared to be consistent with and
is adopted pursuant to the authority granted to the Town Board 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, Section 2(c)(6), 10; Municipal Home Rule
Law § 10; Statute of Local Governments § 10, Environmental
Conservation Law § 17-1101 and § 27-0711; and
Public Health Law § 228(2) and (3).
(1)
This local law is a police power and land use regulation. This local
law is intended, and is hereby declared, to address matters of local
concern. It is further declared that it is not the intention of the
Town to address matters of statewide concern. This local law is intended
to act as, and is hereby declared to exercise, the permissive "incidental
control" of land uses as are concerned with the broad area of land
use planning and the physical use of land and property within the
Town, including physical externalities associated with certain herein-identified
land uses, such as negative impacts on roadways, traffic congestion,
and other deleterious impacts upon a community. This Law is not intended
to regulate the operational processes of any business or industry.
This local law is a law of general applicability and is intended and
declared to promote the interests of the community as a whole.
(2)
As is consistent with law (including, without limitation, New York
State Environmental Conservation Law § 27-0711), this local
law intends to, and hereby does, regulate certain land uses so as
to promote the health and welfare of the citizens of the Town by,
among other things, regulating or prohibiting the dumping, discharging,
injection and disposal of materials herein defined as "Natural Gas
And/Or Petroleum Extraction, Exploration Or Production Wastes" on
lands and in bodies of water within the Town. Further, this local
law is intended and declared to protect drinking water supplies and
is intended and declared to supplement and enhance, but not limit
or impinge upon, the Safe Drinking Water Act and the Underground Injection
Control programs administered by the Environmental Protection Agency.
This local law is also intended and declared to impose conditions
and restrictions on certain uses of property that are directly related
and incidental to the use of property, with such conditions and restrictions
being aimed at minimizing or precluding adverse impacts in and upon
the Town that could result from certain uses of property that pose
a unique risk of adverse impacts to, and effects upon, the comfort,
peace, enjoyment, health and safety of residents and their property.
B.
The Town Board has found, determined, and made the following declarations
of findings:
(1)
Brighton takes great pride in and assigns great value to its residential
character, parkland and open space, and scenic and other natural resources.
(2)
Maintaining the quality of water resources within the Town is critical to protecting the natural environment of the Town, the general health and welfare of Town residents, and the local economy. Certain of the activities described in § 78-6 of this local law have the potential to damage surface and groundwater resources, in the event of (by way of example) human error, power outages, flooding or other natural disasters, or engineered materials and structures experiencing stresses beyond those for which they were designed. Water pollution is hazardous to the public health.
(3)
Preservation of the Town's irreplaceable open space, air quality
and water quality, and unique character, is of significant value to
the inhabitants of the Town and its residents.
(4)
The Town'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 Town is important for both a healthy environment
and vibrant economy. Aesthetic issues are real and evoke strong reactions
from people; they also deeply affect the way people feel about a place,
and effect whether businesses or residents will want to locate within
or visit a place.
(a)
The Town of Brighton has repeatedly demonstrated this by adopting
its open space acquisitions and development plan, funding such plan
through the overwhelming approval of a referendum to issue indebtedness
for such principal, and implementing the plan most recently by acquiring
approximately 72 acres of open space between Elmwood Avenue and Westfall
Road in the Town.
(5)
Allowing the activities described in § 78-6 of this local law could impair the existing character of the Town because, by their very nature, such activities have the potential to produce a combination of negative impacts upon the environment and people living in, or in proximity to, the areas or communities in which such activities 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 open space, natural areas and scenic views, the fragmentation of natural communities and valuable wildlife and flora corridors and decreased recreational opportunities.
(6)
If one or more of the activities described in § 78-6 of this local law are conducted within the Town, traffic generated thereby could be hazardous or inconvenient to the inhabitants of the Town 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. Certain of the activities described in § 78-6 of this local law typically involve a large volume of heavy vehicles and accidents involving heavy vehicles have greater potential for death or serious injuries and property damages than those involving smaller vehicles. An increased volume of heavy vehicular traffic may cause, contribute to, or create unsafe conditions for the traveling public and thus place a strain on emergency responders. Increased heavy vehicular traffic also tends to increase air pollution and noise levels, and decrease the quality of life and property values for those living nearby. Roads are a critical public resource and constitute a major investment of the public's money. The Town is not in a position to bear the high costs associated with the road use impacts that typically accompany many of the activities described in § 78-6 of this local law.
(7)
If one or more of the activities described in § 78-6 of this local law are conducted within the Town, the air pollution, dust, noise, vibrations, and odors generated thereby (whether onsite or by truck traffic to and from the proposed site of such activities) could be hazardous to the inhabitants of the Town. Air pollution is a known hazard to the public health.
(8)
If one or more of the activities described in § 78-6 of this local law are conducted within the Town, noise, vibrations, seismic, subterranean, lateral and subjacent support impacts, and light pollution typically caused by such activities, could be hazardous or inconvenient to the inhabitants of the Town. Noise, traffic congestion, nighttime lighting, vibrations, and seismic and other impacts to subterranean surface support can have negative effects on human health and wildlife.
(9)
The creation, generation, keeping, storage or disposal of Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes (as that term is defined at § 78-5 of this local law) within the Town could have a negative impact on the public health, safety and welfare of the inhabitants of the Town.
(10)
The high costs associated with the disposal of Natural Gas And/Or Petroleum Extraction, Exploration Or Production Wastes (as that term is defined at § 78-5 of this local law) have in other localities resulted, and could in our Town result, in persons seeking to avoid such costs by depositing such material along roadways or in waterways, 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 Town.
(11)
Pipelines under 125 psi and less than six inches in diameter are
presently not regulated by the federal or New York state governments;
yet such pipelines may pose many of the same dangers as larger or
regulated lines when ruptured or impaired. In any event, such pipelines
also require a clear zone for reasons of inspection, maintenance,
and access.
(12)
The Town has been the home of limited light industrial activity,
and the Town's Zoning Code does not permit heavy industrial activity
nor has such activity been carried out in the Town. The Town Board
believes it is appropriate to ensure that any industrial activity
contemplated for the Town take place only if compatible with present
land uses and with the Town's Comprehensive Plan.
(13)
Evaluation and determination of whether the activities described in § 78-6 of this local law are appropriate for the Town is a legitimate goal of land use policy and laws; indeed, the exclusion of specified industrial uses is a legitimate and judicially recognized and supported goal of such laws.
C.
The purposes respecting this local law are as follows:
(1)
Purposes. This local law is enacted so as to take proactive steps
to protect and preserve the quality of the Town's air, water,
historic resources, and other assets, and to protect and promote the
health, safety, and welfare of the Town and its present and future
residents. Without limiting the generality of the foregoing, this
local law is intended and declared by the Town Board to:
(a)
Promote the purposes of planning and land use regulation by,
among other things, preserving the roads and protecting limited and
related fire, police, and other emergency response services in the
Town;
(b)
Promote the health, safety and welfare of the Town, its present and future inhabitants, by preventing adverse public nuisances and/or land use impacts and effects that could result if the activities prohibited by § 78-6 of this local law were allowed to be conducted within the Town;
(c)
Protect the Town's priceless and unique character, the preservation of which is of significant value to the inhabitants of the Town, by protecting it from adverse public nuisances and/or land use impacts and effects that could result if the activities prohibited by § 78-6 of this local law were allowed to be conducted within the Town; and
(d)
Protect the Town's irreplaceable historic, scenic, and natural resources, and the Town's water and air quality, by protecting each and all of the same from adverse public nuisances and/or land use impacts and effects that could result if the activities prohibited by § 78-6 of this local law were allowed to be conducted within the Town.
As used herein, the term "this local law" (or its equivalent)
shall mean and refer to Town of Brighton Local Law No. 1 of 2013.
As used in Article II[1] of this local law, the terms "this Law," "this chapter,"
and "herein" shall mean and refer to this local law, as the same may
be amended from time to time. The term "shall" is mandatory, and the
term "may" is permissive. Any word that is gender-referenced shall
be construed to include all genders and the neuter/neutral of such
term. Capitalized words shall have the meanings ascribed to them whenever
the meaning or context thereof so admits or requires. Defined words
and phrases that are not capitalized shall be presumed to be capitalized
and deemed defined words and phrases, unless the context thereof admits
or requires otherwise.
[1]
Editor's Note: So in original.
The statements of authority, intent, findings, and purpose are
legislatively adopted along with the formal text of this local law.
Such statements of authority, intent, findings, and purpose are intended
and declared to be a material part of this local law, a legal guide
to the administration and interpretation of this local law, and a
part of the legislative history of this local law.
For purposes of this local law, the following terms shall have
the meanings respectively set forth below:
Radioactive material in a quantity or of a level that is
distinguishable from background (as that phrase is defined at 10 CFR
20.1003), but which is below the regulation thresholds established
by any regulatory agency otherwise having jurisdiction over such material
in the Town.
Any system of pipelines (and other equipment such as drip
stations, vent stations, pigging facilities, valve boxes, transfer
pump stations, measuring and regulating equipment, yard and station
piping, and cathodic protection equipment) used to move oil, gas,
or liquids from a point of production, a treatment facility, or a
storage area to a transmission line, which is exempt from the Federal
Energy Regulatory Commission's jurisdiction under Section 1(b)
of the Natural Gas Act, and which does not meet the definition of
a "major utility transmission facility" under the Public Service Law
of New York, Article 7, § 120(2)(b).
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.
A site where any Natural Gas Exploration And/Or Petroleum
Production Wastes are applied to the soil surface or injected into
the upper layers of the soil.
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.
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 make
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.
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.
Any of the following in any form 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 any
statutory or regulatory definition(s) of "industrial waste," "hazardous,"
or "toxic," and whether or not such substances are generally characterized
as waste: (a) 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 Town, whether naturally
occurring or otherwise, and 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; (b) natural
gas or petroleum drilling fluids; (c) natural gas or petroleum exploration,
drilling, production or processing wastes; (d) 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);
(e) 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; (f) soil contaminated
in the drilling, transportation, processing, or refining of natural
gas or petroleum; (g) drill cuttings from natural gas or petroleum
wells; or (h) any other wastes associated with the exploration, drilling,
production, or treatment of natural gas or petroleum. 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 this Natural Gas And/Or Petroleum
Extraction, Exploration Or Production Wastes does not include recognizable
and nonrecognizable food wastes.
Any of the following: (a) tanks of any construction (metal,
fiberglass, concrete, etc.); (b) impoundments; (c) pits; (d) evaporation
ponds; or (e) other facilities, in any case used for the storage or
treatment of Natural Gas And/Or Petroleum Extraction, Exploration
Or Production Wastes that: (i) are being held for initial use, (ii)
have been used and/or are being held for subsequent reuse or recycling,
(iii) are being held for treatment, or (iv) are being held for storage.
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.
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) Nonregulated
Pipelines; (g) Underground Injection; or (h) Underground Natural Gas
Storage.
Those facilities or combinations of facilities that move
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, natural gas dehydration, and tanks for the
storage of waste liquids and hydrocarbon liquids.
Those facilities that separate and recover 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: cleaning
or stripping gas; cooking and dehydration; residual refinement; treating
or removing oil or condensate; removing water; separating NGLs; removing
sulfur or carbon dioxide; fractionation of NGLs; and/or the capture
of CO2 separated from natural gas streams.
Those pipelines that are exempt or otherwise excluded from
regulation under federal and state laws regarding pipeline construction
standards or reporting requirements, specifically including without
limitation production lines and gathering lines.
Any individual, public or private corporation for profit
or not for profit, association, partnership, limited liability company,
limited liability partnership, firm, trust, estate, and any other
legal entity whatsoever which is recognized by law as the subject
of rights and duties.
All parts of those physical facilities through which petroleum,
gas, hazardous liquids, or chemicals move in transportation (including
pipes, valves and other equipment and appurtenances attached to pipes,
such as drip stations, vent stations, pigging facilities, valve boxes,
transfer pump stations, measuring and regulating equipment, yard and
station piping, and cathodic protection equipment), whether or not
laid in a public or private easement or right of way within the Town.
This includes, without limitation, gathering lines, production lines,
and transmission lines.
Material in any form that emits radiation. This definition
specifically includes NORM (naturally occurring radioactive material),
but only if such naturally occurring material has been moved from
its naturally occurring location through an industrial process. All
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.
The spontaneous emission of particles (alpha, beta, neutrons)
or photons (gamma) from the nucleus of unstable atoms as a result
of radioactive decay.
Below the surface of the earth, or of a body of water, as
the context may require.
The Town of Brighton, Monroe County, New York.
The Town Board of the Town.
A pipeline that transports oil, gas, or water to end users
as a public utility and which is subject to regulation either by:
(a) the Federal Energy Regulatory Commission's jurisdiction under
Section 1(b) of the Natural Gas Act, or (b) as a "major utility transmission
facility" under the Public Service Law of New York, Article 7, § 120(2)(b).
Subsurface emplacement of Natural Gas And/Or Petroleum Extraction,
Exploration Or Production Wastes, including without limitation emplacement
by or into an Injection Well.
Subsurface storage, including without limitation in depleted
gas or oil reservoirs and salt caverns, of natural gas that has been
transferred from its original location, whether for the purpose of
load balancing the production of natural gas or for any other reason,
including without limitation short-term, long-term, or intermittent
storage for product quality, processing, or transportation purposes,
or because of market conditions. Without limitation, this term includes
compression and dehydration facilities, and associated pipelines.
Zoning Board of Appeals of the Town.
A.
Subject to the provisions of Subsection B of this § 78-6, below, it shall be unlawful for any person to use, cause, allow, or permit to be used, any land (including all surface and subsurface lands), body of water or waterway (whether upon or below-ground), building, or other structure located within the Town for any of the following:
B.
The prohibitions set forth above in subsection A of this § 78-6, above, are not intended, and shall not be construed, to:
(1)
Prevent or prohibit the right to use roadways in commerce or otherwise
for travel;
(2)
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
Town or to direct end users in adjoining municipalities in the ordinary
course of business; or
(3)
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 residential, business, commercial,
and other uses within the Town.
A.
Failure to comply with any of the provisions of this local law 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 $5,000 or imprisonment for not more than 30 days, or both, for the first offense. Any subsequent offense within a twelve-month period shall be punishable by a fine of not more than $10,000 or imprisonment for a period of not more than 90 days, or both. For purposes of this Subsection A, each day that a violation of this local law exists shall constitute a separate and distinct offense.
B.
In addition, an action or proceeding may be instituted in the name of the Town in any court of competent jurisdiction, to prevent, restrain, enjoin, correct, enforce, and/or abate any violation of, or nonconformance with, any provision or requirement of this local law. Additionally, any action may be so commenced to declare the rights of the Town and of any other Persons relative to any justiciable controversy arising from, under, or in relation to this local law, whether pertaining to its interpretation, application, legality, or enforceability, or otherwise. No such action or proceeding shall be commenced without the appropriate authorization from the Town Board. If equitable relief is requested in the form of an temporary restraining order, a temporary injunction, or an injunction, or by any other form of prohibition or similar relief, the Town shall not be required to post any bond or undertaking as a condition or requirement for or of such relief, and the Town shall not be required to prove or show a lack of an adequate remedy at law. No right, remedy, or penalty specified in this § 78-7 shall be the or an exclusive remedy of the Town, and each remedy or penalty specified in this § 78-7 shall be in addition to, and not in substitution for or in limitation of, any other remedies or penalties specified in this local law or permitted in equity or by any applicable law, rule, order, or regulation. Any remedy or penalty specified in this local law may be pursued at any time, whether prior to, simultaneously with, or after the pursuit of any other remedy or penalty specified in this § 78-7.
C.
In addition, the Town's Chief of Police or Commissioner of Public
Works, or either of their designees, may issue stop-work orders or
compliance notices relative to any violation of this local law. The
failure of any Person to comply with any such notice or order shall
be and be deemed a violation of any other applicable law or ordinance,
including, without limitation, the Town's Comprehensive Development
Regulations and its related rules and regulations, and the New York
Executive Law § 382, and, in each case, such noncompliance
or violation may also be enforced as such.
D.
In the event the Town is required to take legal action to enforce
this local law, the violator will be responsible for any and all necessary
costs incurred by the Town relative thereto, including attorneys',
engineering, consulting, and experts' fees; provided, however,
that 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 the contrary, any Natural
Gas And/Or Petroleum Extraction Activities that are being conducted
in the Town as of the effective date of this local law shall be subject
to the following:
A.
If, as of the effective date of this local law, substantive Natural Gas And/Or Petroleum Extraction Activities are occurring in the Town and those activities are in all respects being conducted in accordance with all applicable laws and regulations, including, without limitation, the possession of valid nonrevoked permits for all matters for which permits are required, and including compliance with each, any, and any listed permit conditions, as are or may be required by the New York State Department of Environmental Conservation ("DEC"), and all other regulating local, state, and/or federal governments, bureaus, or agencies, then and only then such Activity shall be considered a preexisting, nonconforming use and shall be allowed to continue, subject, however, to the provisions of Subsections B and C of this § 78-8. Natural Gas And/Or Petroleum Extraction Activities that are being conducted in the Town as of the effective date of this local law and which do not qualify for treatment under the preceding standard of this Subsection A of this § 78-8 shall not be grandfathered (or be permitted to continue or deemed lawful pre-existing uses), and shall in all respects be prohibited as contemplated by § 78-6 hereof.
B.
Upon the depletion, closing, or reclamation of any well which is allowed to remain in operation after the effective date of this local law by virtue of Subsection A of this § 78-8, or upon any other substantive cessation of Natural Gas And/Or Petroleum Extraction Activities for a period of more than 12 months, then, and in either of such events, the preexisting and/or nonconforming use status (and any related "grandfathering rights") of or relating to such activity shall terminate, and thereafter such Natural Gas And/Or Petroleum Extraction Activities shall in all respects be prohibited as contemplated by § 78-6 hereof.
C.
Notwithstanding any provision hereof to the contrary, the preexisting, nonconforming status conferred and recognized by Subsection A of this § 78-8 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 local law. Any expansion, or attempted or purported expansion, of such well, whether as to its production, depth, horizon(s), or otherwise, shall not be grandfathered under Subsection of this § 78-8, and instead shall in all respects be prohibited as contemplated by § 78-6 hereof. Any such grandfathered and allowed lawful preexisting uses shall not 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 § 78-10 of this local law, no permit or approval issued by any local agency, department, commission, or board shall be deemed to grant any rights, permissions, or approvals to undertake activities within the Town of Brighton when or to the extent that such activity or activities would violate the prohibition set forth at § 78-6 of this local law.
A.
There is hereby established a mechanism by which persons aggrieved by a decision or determination of the Town's Code Enforcement Officer (or other administrative official or body charged with the enforcement of this local law) regarding § 78-6 of this local law (or otherwise) may make appeal to the Zoning Board of Appeals for a Hardship Exemption from the provisions of sald § 78-6 (or any other provision or requirement of this local law). The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the Code Enforcement Officer or other administrative official or body charged with the enforcement of this local law, after public notice and hearing and in accordance with the requirements of law and this local law, to consider applications for a Hardship Exemption from the provisions of § 78-6 of this local law. Applicants for a Hardship Exemption should consult the succeeding provisions of this § 78-10, as well as § 78-11 of this local law, for a specification of application requirements and the procedural mechanisms involved in the consideration by the Zoning Board of Appeals of an application for a Hardship Exemption.
B.
No such Hardship Exemption shall be granted by the Zoning Board of Appeals without a showing by the applicant that enforcement of § 78-6 of this local law as to such applicant has caused an "unnecessary hardship." For purposes hereof, and in order to prove the existence of an unnecessary hardship for purposes hereof, the applicant must demonstrate to the Zoning Board of Appeal's satisfaction compliance with and/or proof of each of the following four standards or conditions: (i) that unless the applicant is granted a Hardship Exemption from the provisions of § 78-6 of this local law the applicant cannot realize a reasonable rate of return on the entire parcel of property, and such lack of return is substantial as demonstrated by competent financial evidence; (ii) that the alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the neighborhood or other area in the vicinity of the applicant's property; (iii) that the alleged hardship has not been self-created; and (iv) that the requested Hardship Exemption, if granted, will not alter the essential character of the neighborhood or other area in the vicinity of the applicant's property in an adverse manner. For purposes of interpreting and applying the above four standards and matters of proof, the following shall apply:
(1)
Reasonable rate of return. In evaluating whether the applicant can realize a reasonable rate of return for purposes hereof, the Zoning Board of Appeals shall examine whether the site of the proposed project and all adjacent lands in common ownership, are incapable of producing a reasonable rate of return. No Hardship Exemption shall be granted unless, in addition to satisfying all other applicable provisions of this local law, the Zoning Board of Appeals finds that the applicant has clearly demonstrated, by detailed "dollar and cents" proof, the inability to obtain a reasonable return for the entire parcel (and not just the site of the proposed project) unless the applicant is granted a Hardship Exemption from the provisions of § 78-6 of this local law.
(2)
Unique hardship. No Hardship Exemption shall be granted unless, in
addition to satisfying all other applicable provisions of this local
law, the Zoning Board of Appeals finds that the entire parcel of land
which the project is a part possesses unique characteristics that
distinguish it from other properties in the neighborhood or other
area in the vicinity of the applicant's property. The applicant
must demonstrate the unique nature of parcel as a whole. The fact
that the property is then unimproved shall not be deemed sufficient
to make the plight of the property unique or to contribute thereto.
Exceptional topography is an example of a factor demonstrating the
unique nature of the property.
(3)
Self-created hardship. The Zoning Board of Appeals may find that
the applicant suffers from a self-created hardship in the event that
the Board finds that:
(a)
The applicant's inability to obtain a reasonable return
on the property as a whole results from having paid too much or from
a poor investment decision;
(b)
The applicant previously divided the property and is left with
only a portion which suffers from some unique condition for which
relief is sought and which did not apply to the parcel as a whole;
or
(c)
When the applicant purchased the property applicant knew or
should have known that the property was subject to this local law.
(4)
Adverse alteration of essential character of the neighborhood or
other area in vicinity. In making its determination of whether the
proposed project will adversely affect the essential character of
the neighborhood or other area in the vicinity of the applicant's
property, the Zoning Board of Appeals shall take into account factors
that are of vital importance to the citizens of the Town including
without limitation:
(a)
The residential, and historic character and resources of the
Town;
(b)
The Town's irreplaceable open space, recreation, and historic
sites;
(c)
The extent of hazard to life or property that may result from
the proposed project;
(d)
Health impacts;
(e)
The social and economic impacts of traffic, congestion, noise,
dust, odors, emissions, solid waste generation, and other nuisances;
(f)
The impact on property values; and
(g)
Whether the applicant will use a style of development that may
result in degradation to the air quality, water quality, or historic,
scenic, and natural resources of the Town.
C.
In addition to any other application requirements from time to time
established pursuant to this local law, an application for any Hardship
Exemption shall contain a narrative explaining what the application
is for and how the project meets or exceeds all of the criteria for
a Hardship Exemption. Such submissions shall include the following:
(1)
With respect to a claim that the applicant cannot realize a reasonable
rate of return, the applicant shall provide financial evidence containing
reasonable specification of the nature and factual particulars of
such claim, including, at a minimum (as to the entire parcel of which
the proposed project is a part): (a) the date(s) of acquisition of
the property; (b) the purchase price; (c) present value of the property;
(d) the amount of real estate taxes; (e) the amount of mortgages or
liens and other expenses; (f) the asking price for the property when
it had been offered for sale; (g) the costs of demolishing any existing
structures on the property; (h) efforts to market the property; (i)
a schedule of all other property in common ownership at either the
date of the enactment of this local law or thereafter; and (j) "dollars
and cents proof," such as appraisals, economic studies, and any other
such evidence supporting the applicant's contention that the
grant of a Hardship Exemption is appropriate. For purposes of this
local law, "common ownership" means all other interests in property
either located within the Town or contiguous to the Town that is held
by any of the applicants (if more than one), whether such ownership
is of a legal or equitable interest, in whole or in part, contiguous
or not, and whether such property interest is held by any of the applicants
through a legal or equitable interest in a (another) corporation,
partnership, trust, business, entity, association, fund, joint venture,
or individually.
(2)
Environmental Assessment Form. A completed draft of a Long Form Environmental
Assessment Form, Part I, regarding the proposed project. Any action
in consideration of whether to deny, grant, or grant with conditions
such application shall be and be deemed a Type I Action under SEQRA,
including, without limitation, 6 NYCRR Part 617, § 617.4.
(3)
With respect to a claim that, if granted, the requested Hardship
Exemption will not adversely alter the essential character of the
neighborhood or other area in the vicinity of the applicant's
property, the applicant must demonstrate that the proposed project
will not materially adversely affect such essential character with
regard to the physical, economic, social or environmental elements
of such neighborhood or area. Examples of adverse impacts to the essential
character of the neighborhood or other area include, without limitation,
decreased quality or increased quantity of stormwater runoff, increased
soil erosion, increased traffic or congestion, decreased road quality
or roadway damages, increased noise, dust, odor and/or glare, reduced
wildlife habitat, decreased air quality, decreased water quality,
impairment of viewsheds, the creation of solid wastes, negative impacts
on sustainability efforts, increased social costs, increased emergency
response times, negative impacts to public infrastructure, decreased
property values, and negative impacts on the health of area residents.
D.
In addition to all other application requirements from time-to-time
established pursuant to this local law, each application for a Hardship
Exemption may also include one or more of the following enumerated
reports, analyses, or supporting proofs or documents, and the like,
whenever required by the Zoning Board of Appeals, any environmental
review of such proposed review and/or granting or denial of a Hardship
Exemption application, or otherwise, so as to assist the Zoning Board
of Appeals in determining whether a grant of the requested Hardship
Exemption will adversely alter the essential character of the neighborhood
or other area in the vicinity of the applicant's property and/or
so as to assist the Zoning Board of Appeals in its determination of
whether to deny, grant, or grant with conditions such application:
(1)
Description of surrounding uses. The approximate location of all
neighboring residential, park or recreational areas, any environmental
protection overlay districts designated by the Town, all wetlands,
intermittent, seasonal and other streams, rivers, and waterways, significant
natural communities, endangered and threatened species and species
of concern, and historical or archeologically sensitive or mapped
areas within a two-mile radius of the perimeter of the site of the
proposed use.
(2)
Traffic impact report. A traffic impact report containing:
(a)
The proposed traffic circulation plan and the projected number
of motor vehicle trips to enter or leave the site, as estimated for
daily and peak hour traffic levels, if the Hardship Exemption is granted;
(b)
Existing and proposed daily and peak traffic hour levels as
road capacity levels;
(c)
A determination of the areas of impact of traffic to and from
the proposed project;
(d)
The proposed traffic routes to the nearest intersection with
an arterial highway, including gross weights and heights of vehicles;
(e)
The projected traffic flow pattern including vehicular movements
at all major intersections likely to be affected by the proposed project
if the Hardship Exemption is granted;
(f)
The impact of this traffic upon existing abutting public and
private ways in relation to existing road capacities;
(g)
A traffic impact analysis of the effects of the proposed project
on the transportation network in the Town using passenger car equivalents
if the Hardship Exemption is granted;
(h)
An articulation of the effects and impacts of the proposed project
on traffic based on existing conditions and projected future background
traffic on the state, county, and Town road system if the Hardship
Exemption is granted; and
(i)
An evaluation of whether the resulting traffic conditions are
likely to hinder the passage of police, fire, and emergency response
vehicles, or degrade the quality of life or roadways, and/or otherwise
contribute to hazardous traffic conditions if the Hardship Exemption
is granted.
(3)
Road impact report. An evaluation of:
(a)
Appropriate roadway geometry, including required road widths,
bridge widths, starting and stopping sight distances, intersection
sight distances, and horizontal and vertical curves along the proposed
traffic routes; and
(b)
The adequacy of existing pavement structures along the proposed
traffic routes to accommodate the full weight load of any trucks and
construction vehicles likely to be used in connection with the proposed
project if the Hardship Exemption is granted.
(4)
Transportation plan. A description of ingress and egress through
the proposed project site through which vehicles, equipment, and supplies
will be delivered, including: (a) any temporary or permanent access
routes or points provided, or to be provided, during and after construction
if the Hardship Exemption is granted; and (b) an identification of
any roads, streets, intersections, bridges, and other facilities along
the proposed traffic route that do not meet New York State Department
of Transportation standards. Such plan shall describe any anticipated
improvements to existing roads, bridges, or other infrastructure,
any new road or access construction, measures which will be taken
to avoid damaging any public or private roads, highways, culverts,
or other ways or appurtenances, and the measures that will be taken
to restore damaged public or private roads, highways, culverts, or
other ways or appurtenances following construction and during operations
should the Hardship Exemption be granted.
(5)
Noise impact report. A report that shall measure, project, factor,
cover, and provide conclusions about, without limitation, low frequency,
A-weighted, Infrasound, pure tone, and repetitive/impulse noises,
containing the following information, studies, or descriptions and
conclusions:
(a)
A description of the existing audible conditions at the project
site to identify a baseline sound presence and preexisting ambient
noise, including seasonal variation;
(b)
A description and map of sound producing features of the proposed
project from any noise-generating equipment and noise-generating operations
that will be conducted in connection with the proposed project site
if the Hardship Exemption is granted, including noise impacts from
vehicular traffic travelling within the Town and/or to and from, or
in support of, the proposed project site;
(c)
With respect to the noise to be generated by construction and
the proposed uses of the proposed project site, the range of noise
levels and the tonal and frequency characteristics expected, together
with a written explanation for the bases for any such expectations
or conclusions;
(d)
A description and map of the existing land uses and structures,
including any sensitive area sound receptors (e.g., residences, hospitals,
libraries, schools, places of worship, parks, areas with outdoor workers,
etc.) within one mile of the project parcel boundaries, which description
shall include the location of the structure/land use, distances from
the proposed project, and expected decibel readings for each receptor;
and
(e)
A description of the project's proposed noise-control features,
including any specific measures proposed to protect off-site persons
and/or to mitigate noise impacts for sensitive area receptors.
(6)
Visual assessment. A visual presentation of how the site of the proposed
project will relate to and be compatible with the adjacent and neighboring
areas, within a one-mile radius of the perimeter of the site of the
proposed project, if the Hardship Exemption is granted. This presentation
shall include computerized photographic simulation showing the site
during construction and fully developed which shows and/or demonstrates
any visual impacts from at least four strategic vantage points within
the said one-mile radius. Color photographs of the proposed site from
at least two locations accurately depicting the existing conditions
shall be included. The study shall also indicate the color treatment
of the facility's components and any visual screening incorporated
into the project that is intended to lessen visual prominence.
(7)
Report of Natural Gas and/or Petroleum Extraction, Exploration or
Production Wastes and Other Wastes. A report containing a description
of Natural Gas and/or Petroleum Extraction, Exploration or Production
Wastes and other solid wastes, industrial wastes, hazardous wastes,
toxic and/or poisonous substances and pollutants (whether or not any
such substances enjoy exemption or definitional exceptions from state
or federal laws otherwise intended to protect the public with respect
to hazardous, toxic, or poisonous substances) expected to be produced,
stored, injected, discarded, discharged, disposed, released, or maintained
on the project site if the Hardship Exemption is granted.
(8)
Compatible uses report. A discussion of characteristics of the proposed
project that may decrease the Town's and/or the neighborhood's
(or other area's) suitability for other uses such as residential,
commercial, historical, cultural, tourism, recreational, environmental
or scenic uses if the Hardship Exemption is granted.
(9)
Fiscal impact assessment. An assessment describing the adverse effects
and impacts on Town revenue and costs necessitated by additional public
facility and service costs likely to be generated by the proposed
project if the Hardship Exemption is granted.
(10)
Fire prevention, equipment failure and emergency response report.
A report containing:
(a)
A description of the potential fire, equipment failures, and
emergency scenarios associated with the proposed project that may
require a response from fire, emergency medical services, police,
or other emergency responders if the Hardship Exemption is granted;
(b)
An analysis of the worst case disaster associated with the proposed
project if the Hardship Exemption is granted, together with an analysis
of the impacts of such a disaster upon the health, safety, and welfare
of the inhabitants of the Town and their property;
(c)
A designation of the specific agencies that would response to
potential fires, equipment failures, accidents, or other emergencies
if the Hardship Exemption is granted;
(d)
A description of all emergency response training and equipment
needed to respond to a fire, accident, equipment failure, or other
emergency, including an assessment of the training and equipment available
to local agencies; and
(e)
The approximate or exact location of all fire, police, and emergency
response service facilities within a five-mile radius of the perimeter
of the site of the proposed use.
(11)
Public facilities and services assessment. An assessment describing:
(a)
Whether current Town public facilities and services, including
water supplies, sewer capacity, fire protection, school services,
recreation facilities, police protection, roads and stormwater facilities,
are adequate for the proposed project (taking into account all other
uses that have been permitted or are currently operating in the Town)
if the Hardship Exemption is granted;
(b)
A comparison of the capacity of the public services and facilities
to the maximum projected demand that may result from the proposed
project if the Hardship Exemption is granted (in determining the effect
and impact of the proposed project on fire, police, and emergency
services, the review shall take into consideration response times
and the number and location of available apparatus and fire, police,
and emergency service stations that are manned by full time professional
service personnel; and where applicable a calculation of response
times shall also include the time it takes volunteer emergency personnel
to get to their stations); and
(c)
If the Hardship Exemption is granted, a review of the impacts
of the proposed project upon the safety of all children going to and
from school by car, bus, bicycle, and walking during and outside of
school zone hours, including an analysis of whether existing or proposed
safety measures, such as signaled cross walks, elevated sidewalks,
signage, traffic controls, traffic management or calming plans, and
green space buffers for pedestrians or bicyclists, including an analysis
of whether any walking or bicycle trails or routes overlap, cross,
or run alongside intended traffic routes; each and all so as to mitigate
or help prevent accidents.
(12)
Property value assessment. A property value analysis showing
the impact upon adjoining property values, prepared by a licensed
appraiser in accordance with industry standards, regarding the potential
impact of the project if the Hardship Exemption is granted.
(13)
Health impact assessment. A human health impact assessment identifying
ways in which the proposed project could adversely affect the health
of Town residents if the Hardship Exemption is granted, and a priority
list of recommendations to minimize the potential health impacts of
the proposed project. The health impact assessment shall include:
(a)
A risk assessment of the possible impacts of chemical exposure(s)
on the health of residents, including the Chemical Abstract Service
number of all chemicals proposed to be used or generated at the project
site;
(b)
An assessment of possible health effects due to industrial operations
in non-heavy industrial use areas; and
(c)
An assessment of possible health effects due to community changes,
including the presence of an industrial activity in a previously non-heavy
industrial area, declining property values, impacts to the education
system, and the impacts and effects of any sudden changes in population
numbers, demographics, and customs (if any).
E.
To the extent any of the information, data, studies, reports, and the like, referenced above in this § 78-10 have been prepared or submitted to the State of New York (or other government or governmental department, agency, or authority) in relation to any permit application, unit or spacing authorization, or any related environmental review, or otherwise, the Zoning Board of Appeals may accept such previously prepared materials in lieu of any of the above items which may be so requested or mandated. However, nothing shall prevent the Zoning Board of Appeals from requiring updates, supplemental information, or site-specific analyses relative to such proposed use within the Town or such application for a Hardship Exemption.
A.
Every application for a Hardship Exemption shall be submitted in
writing, upon forms from time to time established, approved, or prescribed
by the Zoning Board of Appeals, and shall be signed by the applicant.
If the applicant is not the owner of the property involved, the owner
of the property shall nonetheless attest to the accuracy of the statements
and representations made in the application, and both the applicant
and the owner shall certify that he (or she or it) has undertaken
due diligence with respect to the accuracy of the matters contained
in the application. Ten copies of the application and supporting documentation
shall be filed with the Zoning Board of Appeals, accompanied by a
fee in the amount set from time to time by resolution of the Zoning
Board of Appeals. The Zoning Board of Appeals (ZBA) is hereby authorized
to adopt rules and regulations for the conduct of hearings on applications
for Hardship Exemptions, consistent with this local law and other
legal or state statutes or requirements.
B.
In evaluating an application for a Hardship Exemption, the Zoning
Board of Appeals shall comply with any applicable provisions of Article
9 of the Environmental Conservation Law, and its implementing regulations
as codified in Title 6, Part 617 of the New York Codes Rules and Regulations,
known as the State Environmental Quality Review Act (SEQRA), as the
same may from time to time be amended.
C.
The Zoning Board of Appeals shall hold a hearing on all applications
for a Hardship Exemption within 62 days of the filing of a complete
application therefor. Said sixty-two-day period may be extended by
mutual agreement of the Zoning Board of Appeals and the applicant,
or whenever required by law, including but not limited to the completion
of any required SEQRA procedures. Public notice of the hearing shall
be given at least 10 days prior to the date thereof by publication
in the Town's official newspaper. The Zoning Board of Appeals
may adjourn or continue such public hearing from time-to-time. The
cost of sending or publishing any notices relating to any application
shall be borne by the applicant, and shall be paid to the Town prior
to the hearing. At least 10 days before any hearing upon any application,
the Zoning Board of Appeals shall mail notices to all adjacent property
owners and such other notices that may be required by §§ 239-l,
239-m, and/or 239-n of the New York State General Municipal Law or
other applicable provisions of law, rules or regulation.
D.
In addition to such other procedures as may be required by applicable
law, the following shall apply with respect to the conduct of hearings
regarding applications for Hardship Exemptions: (a) the burden of
proof shall remain with the applicant to show that he (or she or it)
has satisfied the conditions, requirements, and proofs necessary to
qualify for a Hardship Exemption, and the burden shall never shift
to the Town; (b) any party may appear in person or by agent or by
attorney; (c) no decision or determination shall be made except upon
consideration of the record as a whole and as supported by and in
accordance with substantial evidence; (d) all evidence shall be made
a part of the record; and (e) official notice may be taken of all
facts of which judicial notice could be taken and of other facts within
the specialized knowledge of the Zoning Board of Appeals. When official
notice is taken of a material fact not appearing in the evidence or
in the record, and it is one of which judicial notice could be taken,
every party shall be given notice thereof and shall, upon timely requires,[1] be afforded an opportunity prior to decision to support
or dispute the fact or its materiality.
[1]
Editor's Note: So in original.
E.
Decisions by the Zoning Board of Appeals on applications for a Hardship
Exemptions, shall be made within 62 days from the close of the public
hearing on such matter. The time within which the Zoning Board of
Appeals must render its decision may, however, be extended by mutual
consent of the applicant and the Zoning Board of Appeals, or whenever
required by law, including but not limited to the completion of any
required SEQRA procedures. The final decision on such matter shall
be made by written order signed by the Secretary or Chair of the Zoning
Board of Appeals. Such decision shall state the findings of fact that
were the basis for the Zoning Board's determination. The Zoning
Board of Appeal's decision as to each application for a Hardship
Exemption shall be filed in the office of the Town Clerk no later
than five business days after the day such decision is rendered, and
shall be made a public record.
F.
The Zoning Board of Appeals, in the granting of Hardship Exemptions,
shall grant only the minimum level of exemption that it shall deem
necessary and adequate to allow an economically beneficial use of
the property, while at the same time preserving and protecting the
essential character of the neighborhood and the health, safety, and
welfare of the community.
G.
The Zoning Board of Appeals, in the granting of Hardship Exemptions, shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed project. Such conditions shall be consistent with the spirit and intent of this local law, and shall be imposed for the purpose of minimizing any adverse impact such Hardship Exemption may have on the neighborhood or other area in the vicinity of the applicant's property. Such conditions may include, but are not limited to, landscaping, lighting, access and egress, signs, screening, location and layout of buildings, and limitations upon the use or characteristics of the use which are reasonably related to the public health, safety, and general welfare and/or as may be necessary to carry out the intent of this local law. If the applicant refuses to accept such requirements and conditions, the Hardship Exemption shall be denied. No action in violation of the requirements of § 78-6 of this local law shall be conducted under or pursuant to any Hardship Exemption unless in strict compliance with any conditions and/or restrictions stated in such decision or order granting such Hardship Exemption.
H.
Any person aggrieved by a decision of the Zoning Board of Appeals
with respect to an application for a Hardship Exemption may apply
to the Supreme Court of the State of New York in Monroe County for
review by proceedings under Article 78 of the Civil Practice Law and
Rules. Such proceedings must be instituted no later than 30 days after
the filing of the Zoning Board of Appeals decision in the Town Clerk's
office.
I.
Any grant by the Zoning Board of Appeals of a Hardship Exemption
shall expire if a building permit for the proposed project is not
obtained by the applicant within 120 days from the date of the decision
granting such Hardship Exemption.
J.
Whenever the Zoning Board of Appeals denies an application for a
Hardship Exemption, the Zoning Board of Appeals shall refuse to hold
further hearings on such application, or a substantially similar application,
by the same property owner or his successors or assigns for a period
of one year following such denial, unless the Zoning Board of Appeals
shall find and determine from the information supplied that changed
conditions have occurred relating to the promotion of the public health,
safety, convenience, comfort, prosperity, and general welfare and
that, accordingly, reconsideration is justified.
K.
The procedural and other requirements of this § 78-11 shall be interpreted and applied to the fullest extent permitted by applicable law, and the Constitutional standards of due process. To the extent any such procedural or other requirement is held or deemed inapplicable, unconstitutional, or ultra vires, then, and in such event, such procedural or other requirement shall be interpreted and enforced to the extent permitted, and no other listed procedural or other requirement shall be affected thereby.
If any word, phrase, sentence, part, section, subsection, or
other portion of this local law, 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
local law 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 local law 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 and be deemed severed herefrom, and the Town Board of the Town
hereby declares that it would have enacted this local law, 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 local law is in effect, it is the specific
intent of the Town Board, to supersede any inconsistent provisions
of any and all other local ordinances, local laws, or local resolutions
of the Town of Brighton.
A.
The Code Enforcement Officer of the Town is hereby designated as
the enforcement officer for purposes of interpreting and enforcing
this local law. The Town Board reserves the right, by resolution,
to change or designate additional enforcement officers.
B.
The section and other headings and titles to clauses and phrases
in this local law 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 local law, whether in the nature of a preamble or otherwise,
is a material part of this local law.
