Dubois City Zoning Code
ARTICLE XIX
Prohibition of Commercial Extraction of Natural Gas by Horizontal Drilling
§ 450-108 Findings and intent.
A.
The Council of the City of DuBois finds that the commercial extraction of natural gas by means of horizontal drilling is an industrial use and any attempt to engage in such an industrial use within the residential or office zoning districts of the City of DuBois violates the rights of residents and residential neighborhoods and office neighborhoods and poses a significant threat to their health, safety and welfare. Moreover, widespread environmental and human health impacts have resulted from commercial gas extraction by means of horizontal drilling in areas other than those zoned industrial. Regulating the activity of commercial gas extraction by means of horizontal drilling that automatically means allowing commercial gas extraction by horizontal drilling to occur within every zoning district of the City of DuBois violates the rights of residents and inhabitants of residential and office neighborhoods and endangers their health, safety and welfare by allowing the deposit of toxins into the air, soil, water, environment, and the bodies of residents and inhabitants within the residential and office zoning districts within the City of DuBois.
B.
The City Council believes that the protection of residents, residential neighborhoods, and the occupants and inhabitants of office neighborhoods and the natural environment therein constitutes the highest and best use of the police powers and zoning powers that this municipality possesses. The City Council also believes that local legislation and, in particular, zoning regulations that embody the interests of the community are mandated by the doctrine of the consent of the governed, and the right to local, community self-government and the Pennsylvania Municipalities Planning Code. Thus, the City Council hereby adopts this article, which prohibits the commercial extraction of natural gas by means of horizontal drilling within residential zoning districts and office zoning districts, because that extraction is an industrial use and cannot be performed within such residential zoned neighborhoods or office zoned neighborhoods without violating the rights of residents and communities within those zoning districts or endangering their health, safety and welfare, and removes certain legal powers from gas extraction corporations operating within the City of DuBois and nullifies state laws, permits and other authorizations which interfere with the zoning ordinances of the City of DuBois and the rights secured by this article in accordance with the lawful police powers of the City of DuBois.
§ 450-109 Definitions.
As used in this article, the following terms shall have the meanings indicated:
Includes any corporation, limited partnership, limited liability partnership, business trust, or limited liability company organized under the laws of any state of the United States or under the laws of any country, and any other business entity that possesses state-conferred limited liability attributes for its owners, directors, officers and/or managers.
Includes but shall not be limited to the depositing, storage, treatment, recycling, injection, or by any other means the distribution or depositing of brine, "produced water," "frack water," tailings or any other waste or by-product of shale gas extraction upon, into or over the land, waterways, air or any area within the jurisdiction of the City of DuBois.
The digging or drilling of a well for the purposes of exploring for, developing or producing natural gas or other hydrocarbons.
Any gaseous substance, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rarefied state at standard temperature or pressure conditions, and/or gaseous components or vapors occurring in or derived from petroleum or natural gas.
The process by which geophones and drill/charge holes are pressed into the earth and into which dynamite is ignited to cause a vibration of the earth to determine the location of deposits of shale formations.
Energy that is produced without violating the rights of the human and natural community and which is specifically not derived from fossil fuels or nuclear fission. Energy derived from existing flows of energy generated by ongoing natural processes, including, but not limited to, energy generated from the sun, flowing water, wind flows and geothermal heat flows. The term shall not include any source of energy generated from an increase in the use of fossil fuels, nuclear fission, or any derivative of those energy sources.
§ 450-110 Rights of City residents and natural environment.
A.
Right to water. All residents, natural communities and ecosystems in the City of DuBois possess a fundamental and inalienable right to sustainable access, use, consume, and preserve water drawn from the natural water cycles that provide water necessary to sustain life within the City limits.
B.
Right to clean air. All residents, natural communities and ecosystems in the City of DuBois possess a fundamental and inalienable right to breathe air untainted by toxins, carcinogens, particulates and other substances known to cause harm to health.
C.
Rights of natural communities and ecosystems. Natural communities and ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers, and other water systems, possess inalienable and fundamental rights to exist and flourish within the City of DuBois. Residents of the City, along with the municipality itself, shall possess legal standing to enforce those rights on behalf of those natural communities and ecosystems.
D.
Right to a sustainable energy future. All residents, natural communities, and ecosystems within the City of DuBois possess a right to a sustainable energy future, which includes, but is not limited to, the development, production, and use of energy from renewable fuel sources.
E.
Right to self-government. All residents of the City of DuBois possess the fundamental and inalienable right to a form of governance where they live which recognizes that all power is inherent in the people, that all free governments are founded on the people's authority and consent, and that corporate entities and their directors and managers shall not enjoy special privileges or powers under the law which make community majorities subordinate to them.
F.
People as sovereign. The City of DuBois shall be the governing authority responsible to, and governed by, the residents of the City. Use of the "City of DuBois" municipal corporation by the sovereign people of the City to make law shall not be construed to limit or surrender the sovereign authority or immunities of the people to a municipal corporation that is subordinate to them in all respects at all times. The people at all times enjoy and retain an inalienable and indefeasible right to self-governance in the community where they reside.
G.
Rights as self-executing. All rights delineated and secured by this article shall be self-executing and these rights shall be enforceable against corporations and governmental entities.
§ 450-111 Prohibitions necessary to secure Bill of Rights protections.
A.
It shall be unlawful for any corporation to engage in the extraction of natural gas by means of horizontal drilling within any residential or office zoning district within the City of DuBois, with the exception of gas wells installed and operating at the time of enactment of this article, provided that the extraction of gas from those existing wells does not involve any practice or process not previously used for the extraction of gas from those wells and does not include horizontal drilling.
B.
It shall be unlawful for any individual or corporation, or any director, officer, owner, or manager of a corporation to use a corporation, to deposit, store, "treat," inject or process wastewater, "produced" water, "frack" water, brine or other materials, chemicals or by-products that have been used in the extraction of shale gas onto or into the land, air, or waters of any residential district or office zoning district within the City of DuBois. This prohibition shall specifically apply to disposal injection wells.
C.
It shall be unlawful for any individual or corporation, or any director, officer, owner, or manager of a corporation to engage in or conduct seismographic surveying or seismic testing within any residential or office zoning district of the City of DuBois.
D.
Corporations in violation of the prohibition against conducting seismographic surveying or seismic testing, natural gas extraction by means of horizontal drilling, or seeking to engage in such natural gas extraction by means of horizontal drilling or the depositing, storing, "treating," injecting or processing of wastewater, "produced" water, "frack" water, brine or other materials, chemicals or by-products that have been used in the extraction of shale gas onto or into the land, air or waters within any residential or office zoning district of the City of DuBois shall not have the rights of "persons" afforded by the United States and Pennsylvania Constitutions, nor shall those corporations be afforded rights under the First or Fifth Amendments to the United States Constitution or corresponding sections of the Pennsylvania Constitution; nor shall those corporations be afforded the protections of the commerce or contracts clauses within the United States Constitution or corresponding sections of the Pennsylvania Constitution.
(1)
"Corporations," for purposes of this article, shall include any corporation, limited partnership, limited liability partnership, business trust, or limited liability company organized under the laws of any state of the United States or under the laws of any country, and any other business entity that possesses state-conferred limited liability attributes for its owners, directors, officers, and/or managers.
E.
Corporations engaged in conducting seismographic surveying or seismic testing or the extraction of natural gas by means of horizontal drilling or the depositing, storing, "treating" or injecting or processing of wastewater, "produced" water, "frack" water, brine or other materials, chemicals or by-products that have been used in the extraction of shale gas onto or into the land, air, or waters within any residential zoning district or office zoning district of the City of DuBois shall not possess the authority or power to enforce state or federal preemptive law against the people of the City of DuBois or to challenge or overturn municipal ordinances adopted by the City Council of the City of DuBois when that enforcement or challenge interferes with the rights asserted by this article or interferes with the authority granted to this municipality under the Pennsylvania Municipalities Planning Code to enact zoning ordinances to protect the health, safety and welfare of its residents.
F.
No permit, license, privilege or charter issued by any state or federal agency, commission or board of supervisors to any person or any corporation operating under a state charter, or any director, officer, owner or manager of a corporation operating under a state charter, which would violate the prohibitions of this article or deprive any City resident(s), natural community, or ecosystem located within any residential zoning district or office zoning district of the City of DuBois of any rights, privileges or immunities secured by this article, the Pennsylvania Constitution, the United States Constitution, or other laws, shall be deemed valid within the City of DuBois.
§ 450-112 Enforcement.
A.
Any person, corporation or other entity that violates any prohibition of this article shall be guilty of a summary offense and, upon conviction thereof by a Magisterial District Judge, shall be sentenced to pay the maximum fine allowable under state law for that violation, and shall be imprisoned to the extent allowed by law for a summary offense. A separate offense shall arise for each day or portion thereof in which a violation occurs and for each section of this article found to be violated.
B.
The City of DuBois may also enforce this article through an action in equity or any other action permitted by the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq., to enforce the provisions of the City's zoning ordinances brought before the Court of Common Pleas of Clearfield County. In such an action, the City of DuBois shall be entitled to recover all costs of litigation, including, without limitation, the costs of experts and attorney's fees.
C.
Any resident of the City of DuBois shall have the authority to enforce this article through an action in equity brought in the Court of Common Pleas of Clearfield County. In such an action, the resident shall be entitled to recover all cost of litigation, including, without limitation, the cost of experts and attorney's fees.
§ 450-113 Effective date; existing permit holders.
This article shall be effective five days after the date of its enactment, at which point the article shall apply to any and all extractions of natural gas by means of horizontal drilling and all depositing of waste from shale gas extraction in any residential or office zoning district in the City of DuBois, whether originating in the City of DuBois or elsewhere, regardless of the date of any applicable DEP or other permit.
§ 450-114 People's right to self-government.
The foundation for the making and adoption of this law is the people's fundamental and inalienable right to govern themselves and thereby secure their rights to life, liberty and the pursuit of happiness as well as the City's rights to enact zoning ordinances under the provisions of the Pennsylvania Municipal Planning Code. Any attempts to use other units and levels of government to preempt, amend, alter or overturn this article, or parts of this article, shall require the City of DuBois to hold public meetings that explore the adoption of other measures that expand local control and the ability of residents to protect their fundamental and inalienable right to self-government and the City's right to enact zoning ordinances to promote the public health, safety and general welfare.
§ 450-115 Severability.
The provisions of this article are severable. If any court of competent jurisdiction decides that any section, clause, sentence, part or provision of this article is illegal, invalid or unconstitutional, such decision shall not affect, impair or invalidate any of the remaining sections, clauses, sentences, parts or provisions of the article. The City Council of the City of DuBois hereby declares that, in the event of such a decision and the determination that the court's ruling is legitimate, it would have enacted this article even without the section, clause, sentence, part or provision that the court decides is illegal or unconstitutional.
§ 450-116 Repealer.
A.
All other parts of this chapter and the Code of the City of DuBois not in conflict herewith are reaffirmed and re-ratified as if set forth at length herein.
B.
All parts of this chapter and the Code of the City of DuBois in conflict herewith are hereby repealed, but only to the extent necessary to remedy the inconsistency.