Herkimer County, NY
January 06, 2013
"Moratorium on and Prohibition of Natural
Gas And Petroleum Exploration And Extraction
and Disposal Of
Natural Gas Or Petroleum Extraction, Exploration, And Production Wastes."
The "Moratorium on and Prohibition of Natural Gas And Petroleum Exploration And Extraction Activities, Underground Storage Of Natural Gas, and Disposal Of Natural Gas Or Petroleum Extraction, Exploration, And Production Wastes" to which this Appendix A is attached is herein sometimes referred to as "this Local Law" or "this Law."
This Appendix A is a part of the Local Law to which it is attached for all purposes.
Section 1. Authority and Intent. This Local Law is intended 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), (3).
This Law is a police power and land use regulation. This 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 a land use law that is concerned with the broad area of land use planning and the physical use of land and property within the Town, including the 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. This Local Law is a law of general applicability and is intended to promote the interests of the community as a whole.
As is consistent with law (including, without limitation NY ECL § 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
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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 a 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.
Section 2. Findings of Fact.
1. Danube is a community in the southeastern part of Herkimer County that takes great pride in and assigns great value to its rural residential character, small-town atmosphere, high-quality agricultural and forestry land, and scenic and other natural resources. The present absence within the Town of significant commercial development and any known hazardous waste sites results in an abundance of open available space and a peaceful and tranquil quality of life for the people who have chosen to reside here. The Town is the proud home to the historic Herkimer Home, Indian Castle Church, natural bird sanctuary, a bicycle/walking path, Nowadaga Creek, and similar historic, scenic, and natural attractions, which are considered by the Town Board to be important and valuable community assets and resources. Allowing the activities prohibited by Section 4 of the Local Law to be conducted within the Town 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 communities in which they are located.
2. Many residents are dependent upon aquifers and wells for life-sustaining water; 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 subsection 4. A. of this Local Law have the potential to damage surface and ground water resources, in the event of (by way of example) human error, power outages, flooding or other n tural disasters, or engineered materials and structures experiencing stresses beyond those f r which they were designed. Water pollution is hazardous to the pubic health. If a domestic w ter source is contaminated, remediation is time and cost intensive, and may not restore the ater resource to a quality acceptable for domestic use.
3. Preservation of the Town's irreplaceable scenic sites, air quality and water quality, and priceless and unique character, is of significant value to the inhabitants of the Town and to the tourists who visit here.
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 agricultural. 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 affect whether businesses will want to locate within, or people will want to live in and visit, a place.
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S. The negative impacts which potentially accompany some or all of the activities prohibited by Section 4 of the Local Law include, without limitation, traffic, noise, vibrations, fumes, damage to roadways, degradation of water quality, degradation of air quality, decreased availability of
affordable housing, damage to and loss of agricultural lands and soils, damage to and loss of open space, natural areas, and scenic views, the fragmentation of natural communities and valuable wildlife and flora corridors, decreased recreational opportunities, and damage to the tourism industries.
6. If one or more of the activities prohibited by Section 4 of the 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 Section 4 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. Further, such accidents are more likely to occur on roads (such as many roads in the Town) that have sharp corners, narrow lanes, short sight lines, and overall limited roadway geometries. Thus, 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. With very limited exceptions within the Town, the Town roads are generally "highways by use" (as contemplated by Section 189 of the NY Highway Law) and, as such, many such roadways are not engineered or able to carry repeated heavy vehicular traffic, even if within legal limit loads. The Town is not in a position to bear the high costs associated with the road use impacts that accompany many of the activities prohibited by Section 4 of the Local Law.
7. If one or more of the activities prohibited by Section 4 of the 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 or inconvenient to the inhabitants of the Town. Air pollution is a known hazard to the public health.
8. If one or more of the activities prohibited by Section 4 of the Local Law are conducted within the Town, noise, vibrations, and light pollution typically caused by such Activities could be hazardous or inconvenient to the inhabitants of the Town. Noise, traffic congestion, nighttime lighting, and vibrations 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 Section 3 of the 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, Page 3 of 4
Exploration Or Production Wastes (as that term is defined at Section 3 of the 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, 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. For the reasons set forth above, allowing one or more of the activities prohibited by Section 4 of the Local Law to be conducted within the Town could result in a crisis condition.
12. The explicit proscription of activities such as those prohibited by Section 4 of the Local Law is a legitimate use of police power-based laws. See Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y. 2d 668 (1996), where the Court of Appeals, New York State's highest court, held as follows:
A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its
police power to prevent damage to the rights of others and to promote the interests of the community as a whole.
87 N.Y. 2d at 683, 684.
Section 3. Purposes. As reflected in the findings set forth in the preceding Section 2 of this Appendix, the Town Board has determined that allowing one or more of the activities prohibited by Section 4 of the Local Law to be conducted within the Town could result in a crisis condition, and thus it is of the utmost importance and a dire necessity that the Town Board take steps to prevent the occurrence of such crisis condition. This Local Law is not being enacted merely as a pretext to assuage community opposition. Rather, the purpose of the Local Law is to enable the Town of Danube to stay the construction, operation, and establishment of, and the submission and processing of applications for building permits, certificates of occupancy, and other Town-level approvals respecting, the activities prohibited by Section 4 of the Local Law, for a reasonable time, so as to allow the Town time to study the impacts, effects, and possible controls over such activities and to consider enacting new laws, and amendments to the Town's existing laws, to address the same. The Town Board finds that a moratorium of one (1) year duration, coupled with a mechanism for an 'hardship exemption' procedure, will achieve an appropriate balancing of interests between (on the one hand) the public need to safeguard the character and other resources of the Town of Danube and the health, safety and general welfare of its residents, and the rights of individual property owners or businesses desiring to conduct such activities during such period, on the other.
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