Natural Resource Extraction
Introduction:In January of 2013 a working group with members from 6 Ontario County towns met to discuss regulatory tools that would address the negative impacts from High Volume Hydraulic Fracturing (HVHF). Very early on in the process the group realized that addressing impacts from the broader category of natural resource extraction would be more appropriate for a number of reasons:
- Over time, as technology and methods change, the tools developed by the group would still be applicable and effective.
- Regulation of operating HVHF facilities is primarily under the authority of the NYSDEC with numerous technical and legal details regarding the authority of NYS Towns yet to be worked out.
- Addressing natural resource extraction as a category of land use stays well within the bounds of municipal zoning authority and avoids assertions that a municipality may be attempting to regulate the specifics of an operation in a manner pre-empted by outside agencies.
- Many municipalities are currently dealing with issues related to other kinds of resource extraction (e.g. gravel pits) and the tools to be developed as part of this effort will be that much more useful if not customized solely to address impacts from HVHF.
The documents developed through this effort are not presented as the final word on a complex issue that is rapidly changing through ongoing litigation, an extended administrative process at the State level, and enabling statutes that aren’t always as clearly worded as we’d like. However they do provide well thought out guidance to communities tackling impacts of natural resource extraction operations.
The Drafting Process:The working group was comprised of at least one representative from the following Towns: Bristol, Canadice, Canandaigua, East Bloomfield, Richmond, & Victor. Assisting were professional staff from Boylan Code LLP, the Town of Canandaigua, and the Ontario County Planning Department. The process included review of existing NYS Laws and regulations, selected NYS Attorney General opinions, several dozen codes (from across NY and other states), as well as documents produced through similar efforts in other areas of New York.
Over the last year the group has sorted through information and opinion, discussed a wide range of options, and in the end reached consensus on both approach and content.
The documents encourage, and in some cases, require coordination between Towns. They are not drafted or presented as if they were ready for adoption. Although most of the work has been done, it is expected that each municipality will perform their own review and make modifications as needed.
Documents and Links:ROADS:
Model Local Road Preservation Law - NYS Vehicle and Traffic Law (VTL) gives municipalities the ability to establish truck routes for Town roads. Typically a Town would establish trucking routes in advance and make them a part of Town Code. This draft law describes a process to establish routes in response to new traffic or existing traffic that is damaging Town roads or creating a dangerous situation. Every effort was made to remain consistent with the authority granted in VTL. A municipality considering using this law will need to review existing Town Code to find where this law may conflict with existing standards and requirements. This model law is not intended to prevent or regulate land uses but rather allow lawful and reasonable use of a public resource and establish a process for its protection.
Sample Road Usage Agreement (RUA) - An RUA is a voluntary agreement between the municipality and a traffic generator to address use, impact avoidance, mitigation and repair of damage. Generally speaking an RUA can’t be required but, now and then such an agreement just might be in everyone’s best interests and result in more cooperation from a traffic generator and better impact mitigation.
Model Local Law - Floating Zone & Special Use Permit Standards The floating zone is an option for a municipality that wants to require legislative action (a rezoning) to allow a natural resource extraction operation to be located in a specific area. This gives a Town the authority to ensure that, if allowed, such an operation will occur in an acceptable location with adequate options for mitigation.
A special use permit is also an option for controlling the location and general layout of a use. The standards are very similar to what is in the floating zone local law, but the review and decision is made but whatever board is empowered to act on special use permit applications (ZBA or Planning Board)
Primer on How to Draft a Ban (for any land use) - If you are considering a ban on a specific use, this document offers a common sense approach and guidance on process.
Cornell Local Road Program - Document with sample local laws for regulating traffic on Town roads.
NYS Attorney General Opinion - “Town Board's limited power to exclude certain vehicles from certain highways--general discussion.” 1980.
Primer on Completing a Road Inventory - There are many ways to complete the kind of road inventory that can serve as the basis for establishing truck routes and other limitations on the use of Town roads. This describes a few options in the most basic terms and includes a draft request for qualifications should you decide to hire a consultant to assist.