HomeMy WebLinkAboutSection 30 SECTION
30
kr r
STATE OF NEW YORK
DEPARTMENT OF STATE
ONE COMMERCE PLAZA
ANDREW M. CUOMO 99 WASHINGTON AVENUE CESAR A. PERALES
GOVERNOR ALBANY, NY 12231-0001 SECRETARY OF STATE
August 6, 2012
Town Clerk
166 Main St
Newfield NY 14867
RE: Town of Newfield, Local Law 1 2012, filed on July 27, 2012
Dear Sir/Madam:
The above referenced material was filed by this office as indicated. Additional
local law filing forms can be obtained from our website, www.dos.state.ny.us.
Sincerely,
State Records and Law Bureau
(518) 474-2755
VWWV.DOS.NY.GOV • E-MAIL:INFOODOS.NY.GOV
New York State Department of State
LOCAL LAW FILING - 41 State Street,Albany,NY 12231
Town of Newfield
Local Law No. 1 of the Year 2012
A local law to r
t a Moratorium and Prohibition Within The Town a o Of
f Natural Gas And
Natural Gas,And
Petroleum Exploration And Extraction Activities,Exploration,And Production Wastes."
Disposal Of Natural Gas Or Petroleum Extraction,
Be it enacted by the Town Board of the Town of Newfield,
Sect_ TITLE
This Local Law shall be known as the: loration And Extraction
"Moratorium on and Prohibition of
Natural Gas, D sposal Of Natural Gas
Activities,Underground Storage Of loration,And Production Wastes."
Or Petroleum Extraction,Exp
Sect?, AUTHORITY AND INTENT; FINDINGS; PURPOSE adopted pursuant to the
A. This Local Law is intended and declared to be e°V New k State Cont
ons itution, and the laws of the
authority granted to the Town Board under the
York, including but not limited to the following authorities:thori i s: Sew York
State
State t New g , 10; Municipal Home Rule and § 27e ofL, and
Constitution Article IX, Section 2(c)( ) 23-0303(2),
Governments §10, Environmental Conservation Law § 17-1101, §
Public Health Law§§ 228(2), (3)'
a police power and land use regulation. This Locaal Law s not intended and is
B. This Local Law is p of
hereby declared to address matters of loiaeconcern,
Oncern and
This declared
is intended to act as and
erned
the Town to address matters of ermew within the
b declared to exercise the permissive "incidental control"physical use of a of land use
and property as con
hereby planning and the phy
with the broad area of land use p
Town, mludin
e g the physical externalities associated with certain her n-etfinousa land uses,suca
as negative impacts on roadways and traffic congestion a
community.
C. The Town Board has found, determined,and made the following declarations of findings:
community in the southwest part of Tompkins County that takes great pride in
1. and a Newfield is a uali
assigns great value to its rural residential character, small-town atmosphere, high-quality
and assig g 1
agricultural and forestry land, and scenic and other natural resources. Newfield is located at
the divide of two major northeastern watersheds: rain that falls in the Town flows north to
feed the St. Lawrence Seaway and south to the Chesapeake Bay.
aining
2. Town residents are dependent upon aquifers and wells s orritical to life-sustaining protecting; the nt natural
the quality of water resources within the Town
environment of the Town, the general health and welfare of Town residents, and the local
economy. Certain of the activities described in Section 4 of the 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 natural disasters, or engineered materials and structures
experiencing stresses beyond those for which they were designed. Water pollution is
hazardous to the pubic health. If a domestic water source is contaminated, remediation is time
and cost intensive,and may not restore the water resource to a quality acceptable for domestic
use. The Town Board believes it is appropriate to evaluate the effectiveness of aquifer
protection legislation as one tool to fortify the Town's at resources from such potential
damage,and if appropriate to draft and enact such legislation.
ty, and
3. Preservation of the Town's irreplaceable scenic sites, air quality and o of water quand to the
priceless and unique character, is of significant value to the
tourists who visit here. 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 deeply affect the way people feel about a place. They are the issues
that determine people want to live in a town or if not businesses want to locate there. In order
to protect such Town assets in the face of significant development pressures,the Town Board
believes it is appropriate to identify and designate Critical Environmental Areas within the
Town.
4. Allowing the activities described in Section 4 of the Local Law would impair the existing
character of the Town, because by their very nature such activities have the potential to
produce a combination of impacts upon the environment and people living in or in proximity
to the communities in which they are located. Such impacts may include, without limitation,
traffic, noise, vibrations, fumes, damage to roadways, light pollution, 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,industries.
adverse
effects on wildlife, decreased
recreational opportunities,and damage to the tourism
5. If one or more of the activities described in Section 4 of the Local Law are conduct d wants ithin
of the
Town, traffic generated thereby could be hazardous or inconvenient to the
Town. Roads are a critical public resource and constitute a major investment of the public's
money.All Town roads, with the exception of certain approved subdivisions, are "highways by
use" (as contemplated by § 189 of the NYS Highway Law) and thus are not necessarily
engineered or able to carry repeated heavy legal limit loads. 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 Section 4 of the Local Law. The Town Board believes it is appropriate to
evaluate the effectiveness of road use legislation as a tool to protect the Town's resources from
such costs and damage, and if appropriate to develop a road use policy and enact such
legislation to protect Town taxpayers from having to shoulder the burden of repairing or
2
rebuilding roads damaged by activities described in Section 4 of the Local Law.
6. The creation, generation, keeping, storage or disposal of Natural Gas And/Or Petroleum
Extraction, Exploration Or Production Wastes (as that term is defined edlat safety 3 of the Local al
Law) within the Town could have a negative impact on the public of
the inhabitants of the Town. eum
tion,
7. The high costs associated with the disposal of Natural Gas And/Or 3 of troleu al xtrachave
Exploration Or Production Wastes (as that term is defined at
such
in other localities resulted, and could in our Town result, in porso s seeking
tosaes do the
costs by depositing such material along roadways, in vacant lts,
private dumpsters of others, or in other unauthor iies could pose a
hazard to the public health,safety,and welfare of the nhabitants of the Town.
8. Pipelines under 125 psi and less than 6" diameter are presently err as larger, regulated federal or
New York state governments, yet may pose many the sam en g , maintenance,
when ruptured, and in any event require a clear zone reasons inspection
it i advisable to
and access. The Town Board believes it is appropriate
develop a policy to address such otherwise unregulated pipelines, and if so, to enact such a
policy.
9. The Town has not been the home of heavy
industrial activity in the past. The Town Board
believes it is appropriate to evaluate the advisability of
r the Town take place only f
standards to ensure that any industrial activity contemplated for
compatible with present land uses and with the Town's soon to be proposed Comprehensive
Plan.
10.Evaluation and determination of whether the activities use Section tion of the Local
is Law
are appropriate for the Town is a legitimate goal of and policy
that exclusion of specified industrial uses is a legitimate goal of such laws:
As the United States Supreme Court stated in Town of Belle Terre v. Borass, 416 U.S. 1
(1974):
the concept of public welfare is broad and inclusive.... The values that it represents are
spiritual as well as physical, aesthetic as well asmonetary.olds wi within he power of
[local] legislature to determine that the community
healthy, spacious as well as clean, well-balanced as well as carefully patrolled.
416 U.S. at 6.
And see also Matter of Gernatt Asphalt Products, en he court,fSa evaluated 87
a N.Y. 2 668
(1996),where the Court of Appeals,New York State's highest
town's prohibition of mining throughout the town was in effect unconstitutional
`exclusionary zoning,' and held as follows:
We have never held, however, that the ... ['exclusionary zoning'] test, which is intended
from improperly usin the zoning power to keep people out,
to prevent a municipality f using
also applies to prevent the exclusion of industrial uses.A munici nality is not obli ed
3
to s ermit the ex s loitation o an and all natural resources within th• town as •
to
•ermined use i limitin that use is a reasonable exercise emote the interests o the
re ent dama•e to the ri•hts o o hers an
community as a whole.87 N.Y. 2d at 683, 684(emphasis added).
time to
C. The purpose of this Local Law is to provide the Town of Newfield with establish period industrial
consider, and if appropriate to draft and to enact, one or more to
site plan review, identify and designate critical environmental activities described n Section 4 of the
legislation, develop a road use policy, and/or prohibit the a
Local Law. At this time, it appears to the Town Board that a moratorium one
e (1)
a year dur tion,
coupled with a mechanism for a 'hardship exemption' procedure,
balancing of interests between (on the one hand) the public need safeguard
residents, and character
the
other resources of the Town and the health,safety and general welfare of
other) the rights of individual property owners or businesses desiring to conduct such activities
during such period.
Sect — DEFINITIONS
For ur oses of this Local Law, the following terms shall have the meanings respectively set forth
p P
below:
Agriculture Use - Land used for the production of crops S/or livestock and
and Ma livestock ps Law)is
(as those terms are defined at Section§ 301 of the New Yor k
that is
Below-Regulatory Concern - Radioactive material in a quantity
CFR §20.1003),r f a level which is
distinguishable from background (as that phrase is defined at
below the regulation threshold established by any regulatory agency otherwise having jurisdiction
over such material in the Town.
Gathering Line,Or Production Line -Any system of pipelines
an other equipment measuring h a and
stations, vent stations, pigging facilities, valve box, transfer pump
regulating equipment,yard and station piping, and cathodic protection equipment), used to move
oil, gas, or liquids from a point of production, treatment facility o s en's storage ra atton under section
ission
line,which is exempt from the Federal Energy Regulatory C
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).
surface
Injection Well - A bored, drilled or driven shaft whose depth ar
is est surface dimension,tthrough
dimension, or a dug hole whose depth is greater than g
which fluids (which may or may not include semi-solids)) are i injected into iod he subsurface any less
than ninety (90) percent of such fluids return to the surface a period
Application Facility - A site where any Natural into the Exploration lyer And/Or
the Petroleum
Production Wastes are applied to the soil surface or injected upper
Gas - Methane and any gaseous substance, either combustible or
reons or rarefied us bl,which h
is produced in a natural state from the earth and which ma gaseous
tandard temperature a nd pressure conditions, and/or gaseous components or vapors occurring
in or derived from petroleum or other hydrocarbons.
is or geophysical activities
And/Or Petroleum Exploration Activities - Geologic hydrocarbons including
Natural Gas And/ etroleum or other subsurface by
relatted to the search for natural gas, p n and sampling techniques,
but one to the
and geologic seismic surveying e of drilling ut otherwise
prospecting, geophysical to core,rotary, or any other type extent that such activities involve or employ
making any penetration or excavation of any land or water surface deposits.
the search for and
evaluation of natural gas,petroleum,or other subsurface hydrocarbon p
Petroleum Extraction Activities - The digging or drilling of a well for the
Natural Gas And/Or Petro petroleum or other subsurface
purposes of exploring for, developing or producing natural gas, p
ocarbons,including without limitation any and all forms of shale fracturing. -Exploration Or Production Wastes Any of the
Natural Gas And/
Or Petroleum Extraction, Exp exempted from the
in in any form, and whether or not such items
ot have been
protection laws,excepted
been excepted from
following
" "hazardous," or "toxic," and whether
coverage or any la o federal f state of "industrial P a below-regulatory and whether Cher or
statutory or regulatory definitions of "industrial waste,
enerall characterized as waste: (a)not such substances are generally below-regulatory concern,c n over such
radioactive material which is not below-regunatory coer but which
is in
radioactive not material,or any the regulatory agency otherwise having l to, arising s h
is in fact not being regulated by or otherwise, in any crelating
the case er relating in or to, in
connection in with,Town,whether y oor incidental to the exploration for, or any related
connection roh, or produced by
treatment, or transportation of, natural (C), natural gas or petroleum
hydrocarbons;r the processing, petroleum drilling fluids;
(b) natural gas or p (d) natural gas or petroleum drilling
hydrocarbons; processing wastes;
exploration, drilling,(s(such as oils, f or p
s oils, (racking fluids, produced water,brine, flowback, sediment and/or
treatment wastes (such a ) (e) any chemical,waste oil,waste emulsified mud,any other liquid or semi-liquid material); oil,mud or
development, transportation,emulsified
processing or
sediment that was used or produced in the drilling,
gas or petroleum; (f) soil contaminated in the
om naturag, transportation,or petroleum
refining of natural ga p etroleum; (g) drill cuttings fr
w wells; or (h) refining of natural sos or petroleum; or treatment of
wells; or (h) any other wastes associated with the fically mtendst o incglude some wastes that may
otherwise gas be classified as This definition specifically Production
"solid wastes which are not hazardous wastes" under
P C•F.R. §
2therwise be definition os solid Exploration
sizable food wastes, or (ii) waste generated
261.4(b). The definition of Natural Gas And/Or d non-recognizable Extraction, xp
Wastes does not include (i) recognizable and
Agriculture Use.
Natural Gas And/
Or Petroleum Extraction, Exploration Or Production Wastes of the following: (a)a tanks of any construction (metal, fiberglass,
Disposal/Storage Facility - Any pits; (d) evaporation ponds; or (e) other facilities, in any
(b) impoundments; (c) p ( ) Exploration
concrete, etc.); held
for the storage or treatment of Natural Gas And/Or Petroleum
been used and are being
case used f
'ii are being held for treatment, or (iv) are being held for
Or Production Wastes that: (i) are being held for initial use,
for subsequent reuse or recycling, (iii)
storage.
5
Gas And Or Petroleum Extraction, Exploration Or Production Wastes Dump - their
upon which G / Exploration Or Pro
upon which Natural Gas And/Or Petroleum Extraction, xp
residue or constituents before or after treatment, are deposited, disposed, discharged, injected,
placed,buried or discarded,without any intention of further use.
Gas And Or Petroleum Support Activities - Shall mean and be
any one or more
Facility; (c) Natural
the
Natural / Natural Gas Processing
following: (a) Natural Gas Compression Facility; (b)
/
Gas
And Or Petroleum Extraction, Exploration Or Production Wastes Disposal/ Dumpe Facility;Land
(d) Natural Gas And/Or Petroleum Extraction, Or
Injection; or (h) Underground
Application Facility; (f) Non-Regulated Pipelines; (g) g
Natural Gas Storage.
P
Natural atural
Gas Compression Facility-Those facilities or combination of facilities facilities n p pe rose o into
gas or petroleum from production fields or natural gas processing
; the term shall include equipment for liquids separation, natural gas dehydration, and
storage;
tanks for the storage of waste liquids and hydrocarbon liqui s.
Natural
Gas Processing Facility - Those facilities that separate and recover natural gas i uids
(NGLs) and/or other non-methane gases and liquids from a stream cookg and dehydration, residual
equipment for any of the following: cleaning or stripping gas,
refinement, ving
nement, treating or removing oil or condensate, removing water,CO2 separating
from, remol gas
sulfur or carbon dioxide, fractionation of NGLs, or the capture of p
streams.
Non-Regulated Pipelines - Those pipelines that are exempt or otherwise excluded
from
regulation under federal and state laws regarding pipeline construction standards reporting
requirements.Specifically includes production lines and gathering lines.
Person - Any individual, public or private corporation for pofit rfnot for ruprofi estate,
P an limited liability partnership,
partnership, limited liability company,
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
Pipeline includin i es, valves and other equipment and
chemicals move in transportation (including pipes,
appurtenances attached to pipes and other equipment such as drip stations,vent ipment stations,pigging nd
pp stations, measuring regulating
facilities, valve boxes, transfer pump public or private
station piping, and cathodic protection equipment), whether or not laid in p gathering
easement or private right of way within the Town. This includes, without limitation,
lines,production lines,and transmission lines.
Radioactive Material - Material in any form that emits radiation. This definition
al has specifically been
includes NORM (naturally occurring radioactive
throu htanandustrial only if processc All such material is
moved from its naturally occurring locat ion g t from licensing
"radioactive material" for purposes h he°NYS Department is
otherwie se
N clear Regulatory
and regulatory control pursuant to t
Commission, the US Environmental Protection Agency,
the US Department of Energy, the US
Department of Transportation, or any other regulatory agency.
6
Radiation - The spontaneous emission of particles (alpha, beta, neutrons) or photons (gamma)
from the nucleus of unstable atoms as a result of radioactive decay. require.
Subsurface- Below the surface of the earth or of a body of water,as the conte xt may
Town-The Town of Newfield,Tompkins County,New York.
Town Board-The Town Board of the Town. public utility
i transports oil, gas, or water to end users as a p
Transmission Line - App eline that the Federal Energy Regulatory Commission's
and which is subject to regulation either by: (a) "Major utility transmission
of the Natural Gas Act, or (b) as a ��Maj t3'
jurisdiction under section 1(b)
facility"under the Public Service Law of New York,Article 7,§120(2)(b). Extraction,
round Injection - Subsurface emplacement of Natural Gas And/Or Petroleum
Un der g or into an Injection Well.
Exploration Or Production Wastes,by in depleted gas or oil
Underground Natural Gas Storage - Subsurface as been storage,
ransferred including its original location,reservoirs and salt caverns, of natural gas that quality,
the purpose of load balancing the production of natural gas or for any other reason,
tY,
whether for p p or intermittent o
long-term, this
lon -t � limitation,g itatto ,
including without limitation short-term,
processing, or transportation purposes, or because of market conditions. Without im
p compression and dehydration facilities,and associated pipelines.
term includes comp
Sect_ MORATORIUM AND PROHIBITION. si
A. 1. From and after the date of this Local Law, no application for a building p ermit, on
subdivrocei s on
1 certificate of occupancy, or other Town-level approval shall be accepted, p
approva ,
pp
approved,
approved conditionally, or issued for the cons r clocated wthin the Town for any
lishment, or use or
o
operation of any land,body of water,building, or other structure Exploration Activities; (ii) any Natural Gas
of the following: (i) any Natural Gas And/Or Petroleum Exp
And/Or Petroleum Extraction Activities; or (iii) any Natural Gas And/Or Petroleum Support
Activities. permit to be
2. From and after the effective date of this Local Law, no person shall use, cause, or p
used, any land body
of water, building, or other structure located within tihe; (o)Town for any
Natural of
the following: (i) any Natural Gas And/Or Petroleum Exploration
Gas And/Or Petroleum
Gas And/Or Petroleum Extraction Activities; or (iii) any
Support Activities.
and prohibition set forth above in Section A. of this Section
s in not
om mend or
and The moratorium P
1 prevent or prohibit the right to use �, i es,
and shall not be construed, to: (i) p
for travel; (ii) prevent or prohibit the transmissin natural natural gs gar through utility pip of s,
otherwise of supplying
lines, or similar appurtenances for the limited purpose
Gated in the Town; or (iii) prevent or prohibit the incidental
ropnormal sale, s t ra e,or
use of lubricating oil, heating uildings to oil, gasoline, diesel fuel, kerosene, P
use
le al Agriculture,residential,business,commercial,and other uses within the Town.
g
7
L.This initial term
of this moratorium and prohibition shall beginning on the effects e date of this
Local Law and d shall expire upon the enacted that
Local Law.
year ate which is
date,or (ii)the effective date of a duly cted
Sect PENALTIES.
A. comply with any of the provisions of this Local Law shall be
State unclassified Penal Law,
misdemeanor sdeme to p Y
misdemeanor as contemplated by Abeicl Oand by a fine of5not more than One Thousand Five
and, upon conviction thereof, shall punishable
Hundreboth first
d Dollars ($1,500) or imprisonment for not more than shall be days, or le by a fi the
ne of not
offense. Any subsequent offense within a three month period s period of not
more than Two Thousand Five Hundred Dollars ($2,500) or imprisonment for a P
30 da s, or both. For purposes of this sub-Clause A., each day that a violation of this
more than Y
Local Law exists shall constitute a separate and distinct offense.
B. Compliance
order or by
with this Local Law may also be compelled and violations restra the b Town by the
injunction of a court of competent jurisdiction, in an action brought on behalf
Town Board.
event the Town is required to take legal action to enforce this Local Law,
a thereto,violator l
C. In the eve costs incurred by the Tow
be responsible for any and all necessary the court.
attorney's fees, and such amount shall be determined and assessed by
Section 6. `GRANDFATHERING' OF LEGAL,PRE-EXISTING NON-CONFORMING USES.
Activities that are being conducted in the Town as of the effective date of this Local Law shall be
ctivrtie
subject to the following:
If, as of the effective date of this Local Law, substantive
tiv t activities Natural Gas
n all rOrpPetrole Petroleum
Ext ,
Extraction Activities are occurring in icable laws and regulations, including without limitation all
conducted in accordance with all applicable
valid permits required by the New York State Department of Environmental ity Co servationd("DEC")pre-
non-conforming and all other regulating agencies,
then and only then such Activity
istin non-conforming use and shall be allowed to continue,subject,however,to the provisions
ex g,
of Clauses B. and C. of this Section 6.
2. Natural Gas And/Or Petroleum Extraction Activities that are being m nt under the the Town as of f
the effective date of this Local Law and which do not qualify for
Clause A. 1. of this Section 6 shall not be grandfathered, and shall in all respects be prohibited
as contemplated by Section 4 hereof.
that is allowed to remain in operation after the effective date of
ha cessation well t essati
Upon the depletion of any any other substantive c
B. U P upon 6,or Y
P p
this Local Law by virtue of Clause A. 1. of this Section ,
Natural Gas And/Or Petroleum Extraction Activities (otherwise grandf then and in such event A. t he
A. 1. of this Section 6) for a period of more than twelve (12
-conforming use status of such Activity shall terminate, and thereafter such Natural Gas
non 8
knd/Or Petroleum Extraction Activities shall in all respects be prohibited as contemplated by
Section 4 hereof.
C. Notwithstanding any provision hereof to the contrary, the pre-existing, non-conforming status
conferred and recognized by Clause A. 1. of this Section 6 is not P tr mend Extract ion shall not
tiee
construed, to authorize or grandfather any Natural Gas And/Or
e
extending beyond whatever well bore is authorized in any DEC permit
expansion existence
as not he
effective date of this Local Law. Any expansion or attempted or pported
grandfathered under Clause A. 1. of this Section 6,and instead shall in all respects be prohibited as
contemplated by Section 4 hereof.
Section 7. CONFLICTING APPROVALS OR PERMITS WITHOUT FORCE OR EFFECT WITHIN THE
TOWN.
Except as contemplated by Section 8 of this Local Law, no permit or approval issued by the Town
shall be deemed valid when or to the extent that such c Ltwor activities would violate the
moratorium and prohibition set forth at Section 4 of this Local
8. HARDSHIP EXEMPTION.
A. There is hereby established a mechanism by which persons aggrieved by a decision or
determination of the Town's Code Enforcement Officer (orn 4 of administrative official or body Law may make
charged with the enforcement of this Local Law) regarding Section said
ion 4. The
appeal to the Town Board for a Hardship Exemption from
deci provisions
on or deter nation tof the Code
Town Board shall have the power, upon an appeal from
cement of this
Enforcement Officer or other administrative official or an body withghe requirements of law and this
Local Law, after public notice and hearing and in accordance
Law, to consider applications for a Hardship Exemption from the provisions of Section 4 of
this Local Law. Applicants for a Hardship Exemption should consult the succeeding provisions of
this Section 8, as well as Section 9 of this Local Law, for specification of application requirements
and the procedural mechanism involved in consideration by the Town Board of an application for
a Hardship Exemption.
y the
B. No such Hardship Exemption shall be granted by Town B to oard without
has baused
applicant that enforcement of Section 4 of this L ocal Law a
"unnecessary hardship" for purposes hereof. In order to prove unnecessary hardship for purposes
hereof, the applicant must demonstrate to the Town Board satisfaction of each of the following
four conditions: (i) that,unless the applicant is granted a Hardship Exemption from the provisions
of Section 4 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
requested
property; (iii) that the alleged hardship has not been self-created;
chara ter of the neighbo hood or other
Hardship Exemption, if granted,will not alter the esse ntial
area in the vicinity of the applicant's property in an adverse manner.
1. Reasonable Rate of Return. In evaluating whether the applicant can realize a reasonable rate of
9
return for purposes hereof, the Town Board shall examine whether the entire original or
expanded property holdings of the applicant (as opposed to only the site of the proposed
project) 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
Town Board finds that the applicant has clearly demonstrated, by detailed written "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 Section 4 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 Town Board finds that the entire parcel of
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 whole. The property. the
applicant must demonstrate the unique nature of the parcel as a
improvements already existing at the time of the application are old, obsolete, outmoded or in
t to
disrepair or the fact that the property is then contribute thereto11Ex �eptional topography ns an
make the plight of the property unique or t
example of a factor demonstrating the unique nature of the property.
3. Self-Created Hardship. The Town Board may find that the applicant suffers from a self-created
hardship in the event that the Board finds that (i) 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; (ii) 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 (iii) when the applicant purchased the property,he or
she 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
Town Board shall take into account factors that are of vital importance to the citizens of the
Town including without limitation: (i) the rural, residential, agricultural and historic character
of the Town, (ii) the Town's irreplaceable recreation, scenic, and tourism sites, (iii) the extent
of hazard to life, limb or property that may result
of traffic the
noisectdu dust, odors,
impacts, (v) the social and economic impa cts
emissions, solid waste generation and other nuisances, (vi) the impact on property values, and
(viii) whether the applicant will use a style of development that will result in degradation to
the air quality,water quality or historic, scenic and natural resources of the Town. In order to
find that the proposed project does not alter the essential character of the neighborhood or
other area in the vicinity of the applicant's property, the Town Board shall interpret the public
interest in said essential character of the neighborhood or other area to require, at a minimum,
that the project will not do any of the following: (x) pose a threat to the public safety, including
public health, water quality or air quality, (y) cause an extraordinary public expense, or (z)
create a nuisance.
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 typewritten narrative
10
explaining what the application is for, how the project meets or exceeds all of the criteria for a
Hardship Exemption, and inclusion of the following:
1. With respect to a claim that the applicant cannot realize a reasonable rate of return, the
applicant shall provide written 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) specification of the following: (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 hereof, common ownership means all other interests in property either located
within the Town or contiguous to the Town that is held by the 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 another corporation, partnership, trust, business, entity,
association,fund,joint venture, or individually.)
2. 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 adversely affect
essential character with regard to physical, cter of the neighborhoodnorlothetr area
Examples of adverse impacts to t he essential chara
include (without limitation) decreased quality or increased quantity of stormwater runoff,
increased soil erosion, increased traffic congestion, decreased road quality, impairment of the
scenic or rural character of roads, increased noise, dust, odor and/or glare, reduced wildlife
habitat, decreased air quality, decreased water quality, impairment of the view shed, 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 shall include the following reports in
writing as deemed and specified by the Town Board, so as to assist the Town Board 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:
1. Environmental Assessment Form. A completed draft of a Long Form Environmental
Assessment Form, Part I,regarding the proposed project.
2. Description of Surrounding Uses. Theapproximate areas all county-designated Unique l neighboring que Natu al residential,
hamlet, park/recreational, and/or agricultural
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Areas and locally designated Critical Environmental Areas (if any), 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 (2) mile radius of the perimeter of the site of the
proposed use.
3. Traffic Impact Report. A traffic impact report containing: (a) the proposed traffic circulation
plan,the projected number of motor vehicle trips to enter or leave the site, 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 area 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) 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; (i) 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, and/or otherwise contribute to hazardous
traffic conditions if the Hardship Exemption is granted; and (j) determination of whether there
is sufficient road frontage so that any vehicle leaving the site may turn into the lane of traffic
moving in the desired direction and be channeled within such lane before crossing the nearest
intersection or proceeding along the road and any vehicle entering the property may turn out
of the nearest lane of traffic without interfering with other traffic if the Hardship Exemption is
granted.
4. Road Impact Report. An evaluation of (a) appropriate roadway geometry including required
road widths, bridge widths, starting and stopping sight distances, intersection sight distances,
horizontal and vertical curves along the proposed traffic routes; (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; and (c) impacts to the rural or scenic character of any
roads along the proposed traffic route if the Hardship Exemption is granted.
5. Transportation Plan. A description of ingress and egress through the proposed project site
through which equipment and supplies will be delivered and which will provide access during
and after construction if the Hardship Exemption is granted, and 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 access/traffic routes and
measures that will be taken to restore damaged routes following construction, and measures
to maintain the scenic and/or rural characteristics of such roads.
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(a) a description of the existing
5. Noise Impact Report. A report containing the following: ( ) presence and preexisting
audible conditions at the project site to identify a description and map of sound producing
ambient noise, including seasonal variation; (b) and noise generating
features of the proposed project from any noise generating equipment ro eat and noise if e generating ner tang
operations that will be conducted in connection from truck traffic travelling within the Town to
Exemption is granted, including noise impacts
P
and from the proposed project; (c) with respect to the noise to be generated by construction
and use of the proposed project, the range of noise levels uch report tonal
hall cover,frequency
without
characteristics expected, and the basis for such expectation.pure tone, and repetitive/impulse noise);
limitation, low frequency, A-weighted, infrasound, p
(d) a description and map of the existing land uses and structures inludingr hip,sensitive
areas
( ) (e.g., residences, hospitals, libraries, schools, places
w the outdoor workers,ker
with outdoor workers, etc.) within one mile of the project parcel ancesofromathe proposed project,
shall include the location of the structure/land use, and distances r project,
(e) a description of the project's
and expected decibel readings for°including specific measures proposed to protect off-site
proposed noise-control features,
workers and mitigate noise impacts for sensitive area receptors.
7. Visual Assessment. A visual presentation of how the site of the�prlo nossed poroj c will l relate of to
and be compatible with the adjacent and eghb frthe Hardship Exemption is granted. This
perimeter of the site of the proposed project,
presentation shall include computerized photographic simulation showing the site during
ra g p
construction and fully developed and demonstrating any visual tal impacts lo a from a strategic accurately depicting
points. Color photographs of the proposed site from at le
the exist g
f
in conditions shall be included. The study shall also indicate
into che olor
pr treatment if
the facility's components and any visual screening incorporated
intended to lessen visual prominence.
E loration or Production Wastes and
8. Report of Natural Gas and/or Petroleum Extraction, xp
Other Wastes. A report containing a description of Natural Gas
industrial es oleum Extraction,
Exploration wastes,
Exploration or Production Wastes and other solid wastes,m
toxic p
enjoy
c and/or poisonous substances and pollutants (whether or otherwise such
intended substances protect
exemption or definitional exceptions from state or federal laws
the public with respect to hazardous,toxic, or poisonous substances) expected to be produced,
red injected, discarded, discharged, disposed, released, or maintained on the project site if
sto )
the Hardship Exemption is granted.
Compatible Uses Report. A discussion of characteristics of the proposed project that may
9 p
decrease the Town's and/or the neighborhood's (orrrecreational,llenvionment lsor
such as residential, commercial, historical, cultural, tourism,
scenic uses if the Hardship Exemption is granted.
P
10. cts
Fiscal Impact Assessment. An assessment describing the adverse anedffcts aedc imps likely on Tow
to n
revenue and costs necessitated by additional public facility
generated by the proposed project if the Hardship Exemption is granted.
11.Fire Prevention, Equipment Failure and Emergency Response Report. A report containing: (a)
13
description of the potential fire, equipment failures and emergency scenarios associated with
the proposed project that may require a response from fire, emergency medial 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
and the impact of such a disaster upon the health, safety and welfare of the inhabitants of the
Town and their property; (c) designation of the specific agencies that would respond to
potential fires, equipment failures, accidents or other emergencies if the Hardship Exemption
is granted; (d) 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.
12.Public Facilities and Services Assessment. An assessment describing: (a) whether current
Town public facilities and services, including water supply, fire protection, school services,
recreation facilities, police protection, roads and storm-water 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, calculation of response time shall also include the time it
takes volunteer emergency personnel to get to their stations); and (c) a review of the impact
of the proposed project on the safety if the Hardship Exemption is granted of all children going
to and from school by car, bus, bicycle, and walking during and outside of school zone hours
and whether safety measures such as signaled cross walks or elevated sidewalks, green space
buffers for pedestrians/bikes where established walking/biking route overlap/run along
intended truck routes so as to aid in the prevention of accidents.
13.Property Value Assessment. A property value analysis, prepared by a licensed appraiser in
accordance with industry standards, regarding the potential impact of the project if the
Hardship Exemption is granted on the value of properties adjoining the project site.
14.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 possible impact of chemical exposure 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 zoned 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 sudden
changes in population numbers, demographics and customs.
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Section 9. HARDSHIP EXEMPTION APPLICATION PROCEDURES;TOWN BOARD
CONSIDERATION PROCEDURE.
A. Every application for a Hardship Exemption shall be in writing on forms from time to time
prescribed by the Town Board, 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 Town Board, accompanied by a fee in the amount set from
time to time by resolution of the Town Board.The Town Board is hereby authorized to adopt rules
and regulations for the conduct of hearings on applications for Hardship Exemptions, consistent
with this Local Law and State statutes.
B. In evaluating an application for a Hardship Exemption, the Town Board shall comply with any
applicable provisions of the state environmental quality review act (SEQRA) under 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, as the same may from time to time be amended.
C. The Town Board shall schedule a hearing on all applications for a Hardship Exemption within
62 days of the filing of a complete application therefor. Said 62 day period may be extended by
mutual agreement of the Town Board 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 five days prior to the date thereof by publication in the Town's official
newspaper. The Town Board 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 Board prior to the hearing. At least five days before any
hearing on an application for,the Town Board shall mail all notices that the Attorney for the Town
may advise are necessary or advisable (such as for example notices to abutters and notices that
may be required by Section 239-m of the NYS General Municipal Law).
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 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 Town Board. When official notice is taken of a
material fact not appearing in the evidence in the record and of which judicial notice could be
taken, every party shall be given notice thereof and shall on a timely request be afforded an
opportunity prior to decision to dispute the fact or its materiality.
E. Decisions by the Town Board on applications for a Hardship Exemption shall be made within 62
days from the close of the public hearing on such matter. The time within which the Town Board
must render its decision may, however, be extended by mutual consent of the applicant and the
15
Town Board.The final decision on such matter shall be made by written order signed by the Town
Supervisor. Such decision shall state the findings of fact that were the basis for the Town Board's
determination. The Town Board'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 Town Board, in the granting of Hardship Exemptions, shall grant only the minimum
Exemption that it shall deem necessary and adequate to allow an economically beneficial use of
the property, and at the same time preserve and protect the essential character of the
neighborhood and the health,safety and welfare of the community.
G. The Town Board, 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 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.
H. Any person aggrieved by a decision of the Town Board with respect to an application for a
Hardship Exemption may apply to the Supreme Court for review by proceedings under Article 78
of the Civil Practice Law and Rules. Such proceedings must be instituted no later than thirty (30)
days after the filing of the Town Board's decision in the Town Clerk's office.
I. Any grant by the Town Board of a Hardship Exemption shall expire if a building permit for the
proposed project is not obtained by the applicant within one hundred twenty (120) days from the
date of the decision granting such Exemption.
J. Whenever the Town Board denies an application for a Hardship Exemption, the Town Board
shall refuse to hold further hearings on such or a substantially similar application by the same
property owner or his successor or assign for a period of one year following such denial, unless
the Town Board 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 a reconsideration is justified.
Section 10. SEVERABILITY.
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
16
:ircumstances, such invalid or unenforceable provision shall be and be deemed severed here from,
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.
Section 11. SUPERSEDING INTENT AND EFFECT. supersede
During the time this Local Law is in effect, it is the specific local laws orBlocal resolut ions of
any inconsistent provisions of any and all other local ordinances,
the Town of Newfield.
Section 12. EFFECTIVE DATE.
This Local Law shall take effect immediately upon filing with the New York Department of State.2 of the Town of
I hereby certify that the above local law, designated as Local ccordance wit the applicable
4 Newfield, was duly passed by the Town Board on July 12, in accordance
provisions of law.
I further certify that I have compared the preceding local of the whole of sugh file in this
local aw,and
and that the same is a correct transcript there from a
was finally adopted in the manner indicated above.
A L41
Town Cle�l�l�/CZ
(Seal) Date:
STATE OF NEW YORK
COUNTY OF TOMPKINS
I,the undersigned,hereby certify that the foregoing to that all
proper proceedings have been had or taken for th e enactment of the said local law
certificate is annexed.
. ogh, Esq.,
Thaler&Thaler
Special Coun elf r the Town of Newfield
Date: Z
17