Town of Fairview, TX Generally

An area within a public right-of-way in which town-owned and/or franchised utilities are already located or within which franchised utilities are to be located; or

A utility easement created to contain either:

(A)

A utility other than a pipeline; or

(B)

A pipeline which preexisted the pipeline under consideration, provided the location of such pipeline has been approved as part of a conditional use permit or a variance has been granted under this article; or

Frac, fracture, or fracturing.

An easement for a pipeline which was in existence prior to the effective date of this article.

Excavation.

Any movement or alteration of the surface of the ground by machinery in conjunction with or anticipation of drilling activities or construction of a pipeline, including but not limited to scraping or grading a site.

Exploration.

Geologic or geophysical activities, including but not limited to surveying and seismic exploration, related to the search for oil and gas or other sub-surface hydrocarbons.

Filling.

Any addition of rock, dirt, soil, or other earthen material in conjunction with or anticipation of drilling activities or construction of a pipeline, including but not limited to disposal of excavated materials.

Floodplain.

Any land area susceptible to a general and temporary condition of partial or complete inundation of normally dry land areas in a base flood from overflow of inland waters or from the unusual and rapid accumulation or runoff of surface waters from any source, as designated by the town, the Federal Emergency Management Agency, the U.S. Army Corps of Engineers, or other regulatory authority.

The process of fracture stimulation of a rock formation, including but not limited to the process of pumping sand laden fluids down a well, or any other means used, to stimulate a rock formation.

Franchise.

An agreement between a utility provider and the town authorizing such utility to utilize public rights-of-way for the location of such utility’s service lines for the purpose of providing utility services to the public located within the town.

Franchised utility.

A person authorized to provide utility services to the town pursuant to a franchise agreement with the town; provided, however, that such definition shall not extend to any pipelines or other utility lines which collect or transport gas, hazardous liquids, or chemicals from wells located within the town into a larger pipeline system, regardless of whether such pipelines are owned by a person which holds a franchise within the town for other purposes.

Freshwater intermittent stream.

A body of water that flows only at certain times of the year in a natural or manmade channel. It can be identified by a “broken blue line” on the United States Geological Survey maps.

Freshwater perennial stream.

A body of water flowing in a natural or manmade channel yearround, except during periods of drought. It can be identified by a “continuous blue line” on the United States Geological Survey maps.

Freshwater pond or lake.

An inland body of standing water typically artificially created.

Gas.

Any fluid, 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 the gaseous components or vapors occurring in or derived from petroleum or natural gas, and/or any material defined or referred to as “gas” in the rules, regulations or forms of the railroad commission.

Green completion.

Using technology to recover gas that may otherwise be vented or flared during the completion phase of a natural gas well; using equipment designed to handle high pressure, high rate flowback fluids so as to safely handle and to sell the natural gas produced during flowback period; using flowback equipment to separate sand, water and gas during initial flowback; having a sales line in place prior to completion of the fracturing process; using the recommended technologies and practices outlined in the U.S. Environmental Protection Agency Natural Gas STAR Program and also including, but not limited to, vapor recovery systems, no-bleed pneumatic valves, flaring and venting bans, and electric compressors.

Habitable structures.

Structures suitable for human habitation or occupation, including but not limited to single or multifamily residences, hotels, condominium buildings, public buildings, buildings for commercial or industrial purposes and enclosed spaces in which individuals congregate for education, worship, amusement, or similar purposes, or in which occupants are engaged at labor, which is equipped with means of egress, light and ventilation facilities. Each building of a condominium regime is considered a separate habitable structure, but if a building is divided into apartments, then the entire building, not the individual apartments, is considered a single habitable structure. A habitable structure shall not include accessory buildings, garages and sheds. Any structure for which a certificate of occupancy is required shall be deemed to be a habitable structure.

Hazardous liquid.

Any liquid identified as hazardous by any federal or state law or regulation, including but not limited to those liquids defined by the railroad commission at 16 Texas Administrative Code, section 8.5, definitions, as amended, specifically including but not limited to, petroleum or any petroleum product, and any substance or material which is in a liquid state when transported by pipeline facilities and which has been determined by the U.S. Secretary of Transportation to pose an unreasonable risk to life or property when transported by pipeline facilities. The term shall be enlarged to include liquefied natural gas and anhydrous ammonia should such materials at any time be introduced into any pipeline subject to this article. It shall also include carbon dioxide, defined at 49 CFR 195.2 as a fluid consisting of more than 90 percent carbon dioxide molecules compressed to a supercritical state.

Hazardous materials management plan.

The hazardous materials management plan and hazardous materials inventory statements required by the fire code.

Idled pipeline.

A pipeline that has been inactive for at least two years, regardless of whether there may be specific plans to reactivate the pipeline.

Inactive pipeline.

A pipeline that has temporarily been taken out of service for a period of at least six months for hazardous materials or hazardous liquids, or for a period of at least one year for natural gas, with the expectation that the pipeline may be reactivated within two years, even though there may be no specific plans to reactivate the pipeline.

Inspector.

The oil and gas inspector designated by the administrator.

Leak detection and repair (LDAR) program best practices pamphlet.

An environmental protection agency brochure that outlines a model for a successful LDAR program.

Lightning arrester.

A device incorporated into an electrical system to prevent damage by heavy surges of high-voltage electricity, such as a stroke of lightning or voltage surges resulting from mishaps in operations.

Line marker.

A marker identifying the location of a buried pipeline, as further defined in, and located as required under 49 CFR 192.707.

New pipelines.

Pipelines constructed after the effective date of this article, provided that the following shall not be included:

The replacement or repair of any existing pipeline;

The realignment of a portion of an existing pipeline to a position that is not greater than 50 feet from its original position; or

Pipeline or well emergency.

Surface appurtenances added to existing pipelines.

New well.

A new well bore or new hole established at the ground surface and shall not include the reworking of an existing well that has not been abandoned unless the reworking involves drilling to a deeper total depth.

Nighttime.

The period commencing at 7:00 p.m. and ending at 7:00 a.m.

Operation site.

The area used for development and production of oil and gas and all related operational activities after drilling activities are complete.

Operations.

Activities leading to and supporting the production of oil, gas and/or other hydrocarbons.

Operator.

The person listed on the railroad commission form W-1 or form P-4 for a well as the person that is, has applied for, or will be, actually in charge and in control of drilling, maintaining, operating, pumping, or controlling any well including, without limitation, a unit operator. If the operator, as defined herein, for any well is not the lessee of any premises affected by the provisions of this article, then such lessee shall also be deemed to be an operator. In the event there is no oil and gas lease relating to any premises affected by this article, the owner of the fee mineral estate in the premises shall also be deemed an operator.

Pad site.

The area around a well or a proposed well that serves or is proposed to serve as a foundation for the drilling rig.

Permittee.

Any person authorized to act under a permit or a certificate issued by the town.

Person.

An individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, other noncorporeal legal entity, the U.S. Government, a state, a municipality (excluding the Town of Fairview), commission, political subdivision or any international or interstate body or any other governmental entity.

Pipeline.

All parts of those physical facilities through which gas, hazardous liquids, or chemicals move in transportation, including but not limited to pipe, valves, and other appurtenance attached to pipe, whether or not laid in public or private easement or public or private right-of-way within the town, including but not limited to gathering lines, production lines, and transmission lines.

Pipeline operator.

Any person owning, operating, or responsible for operating a pipeline.

A pipeline or well incident in which any of the following has occurred or is occurring:

Fire or explosion not intentionally initiated by the operator as part of its normal and customary operations (in accordance with accepted safety practices).

Release of a gas, hazardous liquid, or chemical that could adversely impact the environment or health of individuals, livestock, domestic animals, and/or wildlife within the town.

Death of any person or individual directly attributable to the operations of the pipeline or well.

Private residential areas.

Bodily harm to any person that results in any of the following: loss of consciousness, the need to assist a person from the scene of the incident, or the necessity of medical treatment in excess of first aid.

(5)

Damage to private or public property not owned by the well operator or the pipeline operator, as the case may be, in excess of $5,000.00 in combined values, as determined by the administrator.

(6)

The rerouting of traffic or the evacuation of buildings.

Pipeline permit.

A permit applied for and issued or denied pursuant to this article authorizing the movement of gas, oil, water, or other products through a pipeline.

Practicable.

That which reasonably may be accomplished, considering the effectiveness, scientific feasibility, and commercial availability of current technology and/or techniques, and cost, as determined by the administrator.

Any area which is within the territorial limits of the town subject to a temporary or permanent residential or multifamily zoning classification or any area which is designated as residential or multifamily in the town’s future land use plan, or both.

Protected use area.

The real property used for a residence, church, public park, public library, hospital, school, or other public facility.

Railroad commission.

The railroad commission of the state.

Regulated pipelines.

Those pipelines within the town that under federal and state rules and regulations are not exempt from town regulations regarding construction standards, safety standards, or reporting requirements.

Residence.

A building used or intended to be used as a place of general abode or dwelling place.

Road repair agreement.

A written agreement obligating the operator to repair damage, excluding ordinary wear and tear, if any, to public streets and related appurtenances, including but not limited to bridges, caused by the operator or its employees, agents, contractors, subcontractors, or representatives in the performance of drilling or production of any wells authorized by the town.

Street.

The entire width between the boundary lines of the street right-of-way that is open to the use of the public for purposes of vehicular travel.

Street right-of-way.

Land dedicated to the town or to public use by plat or by any dedication deed or other instrument of conveyance, whether held as an easement, in fee simple, or otherwise, as well as land that qualifies as a prescriptive easement, or prescriptive right-of-way, for the construction, use or maintenance of a street or roadway, and for other public uses typically associated with streets and roadways, including but not limited to sidewalks and/or adjacent areas included in such dedication or prescriptive use.

Structure.

Without limitation, any building, or combination of related components constructed in an ordered scheme that constitutes a work or improvement constructed on or affixed to land, including but not limited to habitable structures, partially enclosed structures, and enclosed tanks.

Supermajority.

A requirement for an item to gain a specified level or type of support which exceeds a simple majority of fifty percent. A supermajority shall be established by the town council with five affirmative votes of approval.

Supervisory control and data acquisition (SCADA).

A system that collects data from various sensors on the drill site equipment or in close proximity to the drill site and sends this data to a central computer, which then manages and controls the equipment. The system usually includes signal hardware (input and output), controllers, networks, user interface (HMI), communications equipment, and software. A key process of SCADA is the ability to monitor an entire system in real time. The system is facilitated by data acquisitions including, but not limited to, meter reading and sensor status monitoring, which are communicated at regular intervals depending on the system.

Tank battery.

Point of collection (tanks) and disbursement (tank, meter, lease automated custody transfer unit) of oil or gas from producing well(s).

Technical advisor.

A person(s) familiar with and educated in the oil and gas industry or the law as it relates to oil and gas matters who may be retained from time to time by the town.

Town.

The Town of Fairview, Texas.

Town council.

The governing body of the Town of Fairview, Texas.

Town regulations.

Any and all town ordinances and other requirements or restrictions duly adopted by the town, whether or not codified in the Code of Ordinances, Town of Fairview, Texas.

Unregulated pipeline.

Those pipelines within the town that under federal and state rules and regulations are exempt from town regulations regarding construction standards, safety standards or reporting requirements.

Well.

A hole or bore to any horizon, formation, or strata for the purpose of producing gas, oil, or other hydrocarbons.

Well permit.

A permit, applied for and issued or denied pursuant to this article, authorizing the drilling, production, and operation of a well at a drill site.

Workover operations.

Work performed in a well after its completion in an effort to secure production where there has been none, restore production that has ceased or increase production.

(Ordinance 2011-12-6D, sec. 2.03, adopted 12/6/11; Ordinance 2012-1-3A, sec. 2.01, adopted 1/3/12)

§ 14.04.003 Applicability.

Generally.

This article governs all oil and gas production and transportation activities within the town’s corporate limits to the extent regulated by this article. Any oil and gas production or transportation activities that are to be undertaken within the town’s corporate limits will be subjected to the permitting process that is outlined in this article. Failure to acquire the required permits prior to engaging in these activities is unlawful and will result in penalty, as specified in this article.

Drill sites and operation sites.

All provisions of this article that apply to drill sites also apply to operation sites and vice versa unless such provisions clearly indicate otherwise.

(Ordinance 2011-12-6D, sec. 2.03, adopted 12/6/11)

§ 14.04.004 Variance requests.

Amendments made by ordinance.

The town council may by ordinance amend, supplement, or change the regulations, standards, or requirements of this article. Any such proposed change shall be first submitted to the planning and zoning commission for public hearing and its recommendation and report.

Requests for amendment or variance.

Any person, corporation, or group of persons having a proprietary interest in any property, may petition the town council for a variance from the provisions of this article by following the procedures set forth in this section. The planning and zoning commission may, on its own motion, institute proposals for variances and amendments. All petitions for a variance shall bear the signature of the owners of the oil and gas production entity that is the subject of the request.

(c)

Variance procedures.

Variances may be sought after issuance of a conditional use permit for oil and gas well drilling and production or may be sought concurrently with an application for a conditional use permit. A variance application that accompanies an application for a conditional use permit shall be considered in conjunction with and granted as part of the conditional use permit application by the town council following a recommendation by the planning and zoning commission. Each variance request will be listed as a separate item on both the planning and zoning commission and town council agendas. The planning and zoning commission and town council may take separate action on each variance request or may consider all variances collectively. Any application for a variance shall initially be submitted to the director of planning. The application must include the following, where applicable; provided, however, that the provision of the information below does not automatically result in the approval of the variance request:

A description of the requested variance and an explanation of why it should be granted.

A description of alternatives considered and why each is not the preferred alternative.

A description of the economic consequences if the variance is not granted.

A description of any other planned uses for the land for which the variance is sought.

(5)

A description of how the level of health, safety, and welfare of the public will be maintained if the variance is granted.

(6)

A description of any special circumstances or conditions applying to the land for which the variance is sought, including how the circumstances or conditions are peculiar to such land and do not apply generally to lands in the same district or neighborhood.

(7)

A description of how said circumstances or conditions are such that the strict application of the provisions of this article would deprive the applicant of the reasonable use of the land.

(8)

A site plan of the site visually depicting the requested variance if the request for the variance involves the location or orientation of persons or property.

(9)

A notarized consent for the variance signed by all owners of both the affected surface and mineral interests.

(d)

Circumstances justifying variance.

Any modification of the standards established by this article shall not be granted to relieve a self-created or personal hardship, nor for financial reasons only, nor shall such modification be granted to permit any person a privilege in developing a parcel of land not permitted by this article to other parcels of land in the same district. Subject to said limitations on the granting of a variance, where, owing to special conditions, a literal enforcement of the provisions of this article will result in unnecessary hardship and where, in the town council’s judgment, the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be substantially or permanently injured, the town council may, in specific cases, after public notice and public hearing, and subject to appropriate conditions and safeguards, authorize the types of variances specifically described in other sections of this article. Before granting a variance, the town council must find that:

There are special circumstances or conditions applying to the land for which the variance is sought, which circumstances or conditions are peculiar to such land and do not apply generally to lands in the same district or neighborhood, and that said circumstances or conditions are such that the strict application of the provisions of this article would deprive the applicant of the reasonable use of the land.

The granting of such variance will not be detrimental to the public welfare or injurious to the property or improvements in such zone or neighborhood in which the land is located.

The granting of the variance is necessary for the reasonable use of the land and that the variance as granted by the town council is the minimum variance that will accomplish this purpose.

The literal enforcement and strict application of the provisions of this article will result in an unnecessary hardship inconsistent with the general provisions and intent of this article and that in granting such variance the spirit of this article will be preserved and substantial justice done.

(e)

Conditions of variance.

In granting any variance under the provisions of this article, the town council may designate such conditions in connection therewith which, in its opinion, will secure substantially the purpose and intent of this article.

(f)

Supermajority requirements.

In granting any amendment or variance under the provisions of this article, the town council shall be required to achieve a supermajority of affirmative votes in support of the proposed amendment or variance.

(Ordinance 2011-12-6D, sec. 2.03, adopted 12/6/11; Ordinance 2012-1-3A, sec. 2.02, adopted 1/3/12)

§ 14.04.005 Appeals.

An operator, pipeline operator, or other person adversely affected by a decision of the director of planning or the administrator under this article may appeal such decision by filing written notice of such appeal to both the director of planning and/or the administrator within ten business days of notice of such adverse decision. The notice of appeal must state the appellant’s desire to appeal, the ruling from which the appellant desires to appeal and the relief or ruling sought. Any such appeal shall be to the town council. The town council, by the affirmative vote of a majority of the members then present, may affirm, reverse, or modify the decision of the director or administrator. The decision of the town council concerning an appeal under this article shall be final. The decision being appealed shall be suspended pending such appeal, unless the administrator determines that such suspension endangers the public health and safety, in which case, the filing of a notice of appeal shall not act to suspend the decision of the administrator.

Any appeal shall be governed by the following rules and procedures:

Such appeal shall be set as an item on the regular town council agenda.

The appellant shall bear the burden of persuasion that the ruling being appealed is in error and shall bear the burden of proof on such matter.

No formal testimony or swearing of witnesses shall be required, and the town council may consider facts or evidence as the town council determines is appropriate. The director or administrator shall present the facts and evidence relied upon by the director or administrator and the reasons for the ruling; the appellant shall then have an opportunity to present the facts and evidence relied upon by the appellant; the town council shall then consider any facts or evidence from the public or other interested persons. The town council may ask questions of the director, administrator, appellant and any other interested persons as the town council determines is appropriate. The town council may limit the time for any presentation in its sole discretion.

Upon the conclusion of the hearing, the town council shall then render its decision. Any appeal shall be determined by majority vote of the members of the town council then present.

(5)

Written documents or evidence which any party wishes to submit must be filed with the director and administrator and submitted to the town council no less than seven business days prior to the appeal hearing.

(c)

No appeal for the same or related issue on the same piece of property shall be allowed from a previous ruling on any appeal absent a material change of circumstances. If the appellant asserts such a change of circumstances and seeks rehearing of an appeal, such appeal need not be considered unless the applicant presents in writing, evidence establishing such change of circumstances. Any such subsequent appeal shall be considered entirely on its merits and the peculiar and specific conditions related to the property on which the appeal is brought.

(Ordinance 2011-12-6D, sec. 2.03, adopted 12/6/11)

§ 14.04.006 Takings determination.

Any aggrieved person who believes that an action taken pursuant to this article by the town council or any officer or employee of the town would legally constitute a taking of property without just compensation under the Texas or United States Constitution, must file an application with the town council to request a takings determination.

The applicant seeking a takings determination from the town council shall file its application with the office of the town secretary. The town secretary shall then forward the takings determination application to the town council for consideration. An application fee in the amount set forth in the town’s fee schedule shall accompany each filing.

(c)

The application shall state the reasons the applicant believes would support a finding that the town’s application of the provisions of this article to the applicant’s property would legally constitute a taking under the Texas or United States Constitution and shall include evidence substantiating the purported diminution in value of the applicant’s property.

(d)

At the takings determination hearing conducted by the town council, the applicant must present detailed economic information and other evidence necessary to establish that the town’s application of the provisions of this article to the applicant’s property would legally constitute a taking of the property without just compensation. The applicant has the burden of proof in establishing that the town’s application of the provisions of this article to the applicant’s property legally constitutes a taking of property without just compensation under the Texas or United States Constitution.

(e)

The town council may administer oaths, compel the attendance of witnesses and require the disclosure of financial and other information from the applicant that the town council determines is necessary to make a determination regarding whether the town’s application of the provisions of this article to the applicant’s property legally constitutes a taking of property without just compensation under the Texas or United States Constitution.

(f)

If the council finds in favor of the applicant it may:

Grant the relief requested;

Direct the town manager to rescind action taken by town staff that formed the basis of the takings determination application; or