[Added 6-5-2014 by Ord.
No. 1795]
A.
The Council of the City of DuBois finds that the commercial extraction
of natural gas by means of horizontal drilling is an industrial use
and any attempt to engage in such an industrial use within the residential
or office zoning districts of the City of DuBois violates the rights
of residents and residential neighborhoods and office neighborhoods
and poses a significant threat to their health, safety and welfare.
Moreover, widespread environmental and human health impacts have resulted
from commercial gas extraction by means of horizontal drilling in
areas other than those zoned industrial. Regulating the activity of
commercial gas extraction by means of horizontal drilling that automatically
means allowing commercial gas extraction by horizontal drilling to
occur within every zoning district of the City of DuBois violates
the rights of residents and inhabitants of residential and office
neighborhoods and endangers their health, safety and welfare by allowing
the deposit of toxins into the air, soil, water, environment, and
the bodies of residents and inhabitants within the residential and
office zoning districts within the City of DuBois.
B.
The City Council believes that the protection of residents, residential
neighborhoods, and the occupants and inhabitants of office neighborhoods
and the natural environment therein constitutes the highest and best
use of the police powers and zoning powers that this municipality
possesses. The City Council also believes that local legislation and,
in particular, zoning regulations that embody the interests of the
community are mandated by the doctrine of the consent of the governed,
and the right to local, community self-government and the Pennsylvania
Municipalities Planning Code. Thus, the City Council hereby adopts
this article, which prohibits the commercial extraction of natural
gas by means of horizontal drilling within residential zoning districts
and office zoning districts, because that extraction is an industrial
use and cannot be performed within such residential zoned neighborhoods
or office zoned neighborhoods without violating the rights of residents
and communities within those zoning districts or endangering their
health, safety and welfare, and removes certain legal powers from
gas extraction corporations operating within the City of DuBois and
nullifies state laws, permits and other authorizations which interfere
with the zoning ordinances of the City of DuBois and the rights secured
by this article in accordance with the lawful police powers of the
City of DuBois.
As used in this article, the following terms shall have the
meanings indicated:
Includes any corporation, limited partnership, limited liability
partnership, business trust, or limited liability company organized
under the laws of any state of the United States or under the laws
of any country, and any other business entity that possesses state-conferred
limited liability attributes for its owners, directors, officers and/or
managers.
Includes but shall not be limited to the depositing, storage,
treatment, recycling, injection, or by any other means the distribution
or depositing of brine, "produced water," "frack water," tailings
or any other waste or by-product of shale gas extraction upon, into
or over the land, waterways, air or any area within the jurisdiction
of the City of DuBois.
The digging or drilling of a well for the purposes of exploring
for, developing or producing natural gas or other hydrocarbons.
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 or pressure conditions,
and/or gaseous components or vapors occurring in or derived from petroleum
or natural gas.
The process by which geophones and drill/charge holes are
pressed into the earth and into which dynamite is ignited to cause
a vibration of the earth to determine the location of deposits of
shale formations.
Energy that is produced without violating the rights of the
human and natural community and which is specifically not derived
from fossil fuels or nuclear fission. Energy derived from existing
flows of energy generated by ongoing natural processes, including,
but not limited to, energy generated from the sun, flowing water,
wind flows and geothermal heat flows. The term shall not include any
source of energy generated from an increase in the use of fossil fuels,
nuclear fission, or any derivative of those energy sources.
A.
Right to water. All residents, natural communities and ecosystems
in the City of DuBois possess a fundamental and inalienable right
to sustainable access, use, consume, and preserve water drawn from
the natural water cycles that provide water necessary to sustain life
within the City limits.
B.
Right to clean air. All residents, natural communities and ecosystems
in the City of DuBois possess a fundamental and inalienable right
to breathe air untainted by toxins, carcinogens, particulates and
other substances known to cause harm to health.
C.
Rights of natural communities and ecosystems. Natural communities
and ecosystems, including, but not limited to, wetlands, streams,
rivers, aquifers, and other water systems, possess inalienable and
fundamental rights to exist and flourish within the City of DuBois.
Residents of the City, along with the municipality itself, shall possess
legal standing to enforce those rights on behalf of those natural
communities and ecosystems.
D.
Right to a sustainable energy future. All residents, natural communities,
and ecosystems within the City of DuBois possess a right to a sustainable
energy future, which includes, but is not limited to, the development,
production, and use of energy from renewable fuel sources.
E.
Right to self-government. All residents of the City of DuBois possess
the fundamental and inalienable right to a form of governance where
they live which recognizes that all power is inherent in the people,
that all free governments are founded on the people's authority and
consent, and that corporate entities and their directors and managers
shall not enjoy special privileges or powers under the law which make
community majorities subordinate to them.
F.
People as sovereign. The City of DuBois shall be the governing authority
responsible to, and governed by, the residents of the City. Use of
the "City of DuBois" municipal corporation by the sovereign people
of the City to make law shall not be construed to limit or surrender
the sovereign authority or immunities of the people to a municipal
corporation that is subordinate to them in all respects at all times.
The people at all times enjoy and retain an inalienable and indefeasible
right to self-governance in the community where they reside.
G.
Rights as self-executing. All rights delineated and secured by this
article shall be self-executing and these rights shall be enforceable
against corporations and governmental entities.
A.
It shall be unlawful for any corporation to engage in the extraction
of natural gas by means of horizontal drilling within any residential
or office zoning district within the City of DuBois, with the exception
of gas wells installed and operating at the time of enactment of this
article, provided that the extraction of gas from those existing wells
does not involve any practice or process not previously used for the
extraction of gas from those wells and does not include horizontal
drilling.
B.
It shall be unlawful for any individual or corporation, or any director,
officer, owner, or manager of a corporation to use a corporation,
to deposit, store, "treat," inject or process wastewater, "produced"
water, "frack" water, brine or other materials, chemicals or by-products
that have been used in the extraction of shale gas onto or into the
land, air, or waters of any residential district or office zoning
district within the City of DuBois. This prohibition shall specifically
apply to disposal injection wells.
C.
It shall be unlawful for any individual or corporation, or any director,
officer, owner, or manager of a corporation to engage in or conduct
seismographic surveying or seismic testing within any residential
or office zoning district of the City of DuBois.
D.
Corporations in violation of the prohibition against conducting seismographic
surveying or seismic testing, natural gas extraction by means of horizontal
drilling, or seeking to engage in such natural gas extraction by means
of horizontal drilling or the depositing, storing, "treating," injecting
or processing of wastewater, "produced" water, "frack" water, brine
or other materials, chemicals or by-products that have been used in
the extraction of shale gas onto or into the land, air or waters within
any residential or office zoning district of the City of DuBois shall
not have the rights of "persons" afforded by the United States and
Pennsylvania Constitutions, nor shall those corporations be afforded
rights under the First or Fifth Amendments to the United States Constitution
or corresponding sections of the Pennsylvania Constitution; nor shall
those corporations be afforded the protections of the commerce or
contracts clauses within the United States Constitution or corresponding
sections of the Pennsylvania Constitution.
(1)
"Corporations," for purposes of this article, shall include
any corporation, limited partnership, limited liability partnership,
business trust, or limited liability company organized under the laws
of any state of the United States or under the laws of any country,
and any other business entity that possesses state-conferred limited
liability attributes for its owners, directors, officers, and/or managers.
E.
Corporations engaged in conducting seismographic surveying or seismic
testing or the extraction of natural gas by means of horizontal drilling
or the depositing, storing, "treating" or injecting or processing
of wastewater, "produced" water, "frack" water, brine or other materials,
chemicals or by-products that have been used in the extraction of
shale gas onto or into the land, air, or waters within any residential
zoning district or office zoning district of the City of DuBois shall
not possess the authority or power to enforce state or federal preemptive
law against the people of the City of DuBois or to challenge or overturn
municipal ordinances adopted by the City Council of the City of DuBois
when that enforcement or challenge interferes with the rights asserted
by this article or interferes with the authority granted to this municipality
under the Pennsylvania Municipalities Planning Code to enact zoning
ordinances to protect the health, safety and welfare of its residents.
F.
No permit, license, privilege or charter issued by any state or federal
agency, commission or board of supervisors to any person or any corporation
operating under a state charter, or any director, officer, owner or
manager of a corporation operating under a state charter, which would
violate the prohibitions of this article or deprive any City resident(s),
natural community, or ecosystem located within any residential zoning
district or office zoning district of the City of DuBois of any rights,
privileges or immunities secured by this article, the Pennsylvania
Constitution, the United States Constitution, or other laws, shall
be deemed valid within the City of DuBois.
A.
Any person, corporation or other entity that violates any prohibition
of this article shall be guilty of a summary offense and, upon conviction
thereof by a Magisterial District Judge, shall be sentenced to pay
the maximum fine allowable under state law for that violation, and
shall be imprisoned to the extent allowed by law for a summary offense.
A separate offense shall arise for each day or portion thereof in
which a violation occurs and for each section of this article found
to be violated.
B.
The City of DuBois may also enforce this article through an action
in equity or any other action permitted by the Pennsylvania Municipalities
Planning Code, 53 P.S. § 10101 et seq., to enforce the provisions
of the City's zoning ordinances brought before the Court of Common
Pleas of Clearfield County. In such an action, the City of DuBois
shall be entitled to recover all costs of litigation, including, without
limitation, the costs of experts and attorney's fees.
C.
Any resident of the City of DuBois shall have the authority to enforce
this article through an action in equity brought in the Court of Common
Pleas of Clearfield County. In such an action, the resident shall
be entitled to recover all cost of litigation, including, without
limitation, the cost of experts and attorney's fees.
This article shall be effective five days after the date of
its enactment, at which point the article shall apply to any and all
extractions of natural gas by means of horizontal drilling and all
depositing of waste from shale gas extraction in any residential or
office zoning district in the City of DuBois, whether originating
in the City of DuBois or elsewhere, regardless of the date of any
applicable DEP or other permit.
The foundation for the making and adoption of this law is the
people's fundamental and inalienable right to govern themselves and
thereby secure their rights to life, liberty and the pursuit of happiness
as well as the City's rights to enact zoning ordinances under the
provisions of the Pennsylvania Municipal Planning Code. Any attempts
to use other units and levels of government to preempt, amend, alter
or overturn this article, or parts of this article, shall require
the City of DuBois to hold public meetings that explore the adoption
of other measures that expand local control and the ability of residents
to protect their fundamental and inalienable right to self-government
and the City's right to enact zoning ordinances to promote the public
health, safety and general welfare.
The provisions of this article are severable. If any court of
competent jurisdiction decides that any section, clause, sentence,
part or provision of this article is illegal, invalid or unconstitutional,
such decision shall not affect, impair or invalidate any of the remaining
sections, clauses, sentences, parts or provisions of the article.
The City Council of the City of DuBois hereby declares that, in the
event of such a decision and the determination that the court's ruling
is legitimate, it would have enacted this article even without the
section, clause, sentence, part or provision that the court decides
is illegal or unconstitutional.
A.
All other parts of this chapter and the Code of the City of DuBois
not in conflict herewith are reaffirmed and re-ratified as if set
forth at length herein.
B.
All parts of this chapter and the Code of the City of DuBois in conflict
herewith are hereby repealed, but only to the extent necessary to
remedy the inconsistency.
