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2010-196ORDINANCE NO. 2010-196 (SECOND REVISION) 1 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING CERTAIN SECTIONS WITHIN SUBCHAPTERS 3, 16, 22, AND 23 OF THE DENTON DEVELOPMENT CODE, RELATING TO GAS WELL DRILLING AND PRODUCTION, DEFINITIONS, AND PROCEDURES, AS PREVIOUSLY AMENDED BY ORDINANCE NO. 2010-181; AND PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000 FOR VIOLATIONS THEREOF, SEVERABILITY AND EFFECTIVE DATE. (DCA10-0006). WHEREAS, pursuant to Ordinance No. 2002-040, the City Council of the City of Denton, Texas adopted the Denton Development Code (the "Development Code"); and WHEREAS, the authority of a home rule municipality to regulate the exploration and production of natural gas within its city limits and extraterritorial jurisdiction as provided herein, is legislatively recognized, inter alia, at §92.007 of the Texas Natural Resources Code; §§54.012, 212.003, 212.044 and 217.042 of the Texas Local Government Code; and numerous other legislative and Constitutional provisions of the State of Texas; and WHEREAS, the City has codified its regulations governing gas well drilling and production within the City and extraterritorial jurisdiction in Subchapters 16 and 22 of the Denton Development Code, and applicable procedures and definitions in Subchapters 3 and 23; and WHEREAS, after public hearings, the City Council recently amended certain of these codified standards, as set forth in Exhibit 1 to Ordinance 2010-181, for the reasons therein stated; and WHEREAS, in response to further input from both citizens and industry representatives, the Council desires to further refine and clarify certain provisions changed in Exhibit 1 to Ordinance 2010-181, to more clearly achieve the purposes underpinning those changes; and WHEREAS, after providing notice and after conducting public hearings as required by law, the City Council finds that the subject changes to the Development Code, as previously amended by ordinance 2010-181, are consistent with Comprehensive Plan and are in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. Subchapters 3, 16, 22 and 23 of the Denton Development Code, as amended by Ordinance 2010-181, are amended to incorporate the specific changes, as identified by section or subsection in Exhibit "l", and such changed sections or subsections shall 1 At the August 17, 2010 City Council meeting where these revisions were discussed, the approval motion incorporated numerous modifications that were incorporated into the final signed copy of Ordinance 2010-196; however, it was later discovered that the changes were incomplete. This revised copy incorporates the missing elements considered and approved by the City Council at the August 17, 2010 meeting. Revisions noted with an asterisk. Page 1 hereinafter read verbatim as set forth in Exhibit "1", which is attached and incorporated fully herein by reference; all provisions not specifically changed herein shall remain as written. SECTION 3. It is the intent of the City Council that the provisions of this ordinance shall apply prospectively to applications for gas well drilling and production, except to the extent that state law allows the City to apply new regulations to existing approved or pending applications. It is the further intent of the City Council that the provisions of this ordinance shall apply to any substantive amendment to an existing approved application for gas well drilling and production. SECTION 4. All ordinances in conflict herewith, are amended and superseded to the limited extent of such conflict, and all remaining sections and provisions of such ordinances, not in direct conflict herewith, are hereby made cumulative. SECTION 5. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 6. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 7. The specific changes made by this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of &Z12&&_Z~,_2010. Lj= ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: LEGAL FORM: BURGESS, CITY ATTORNEY BY: e2 Exhibit 1- Clean Version Citation Proposed Ordinance 35.16.19.E 5. If gas well drilling or production has commenced, the gas well drilling and production area shall be subject to inspections by the City. DDC 35.22.2 Drilling and Production Area (AKA Gas Well Park, Gas (Fell Pad Site). The area dedicated to all gas well drilling and production activities, including the drill site, all structures, closed-loop systems, dehydrators, parking areas, security cameras, lighting, tanks, tank battery, drilling rigs, separators, compressors, perimeter walls, utilities, and all other features or objects contemplated for use during and after gas well drilling or production, as designated on the Gas Well Development Plat or Gas Well Development Site Plan. Habitable Structure Structures suitable for human habitation or occupation for which a Certificate of Occupancy or Final Inspection Certificate is required, including but not limited to single or multi- family dwellings, accessory guest houses, hotels, condominium buildings, public buildings, and enclosed buildings used for commercial or industrial purposes. A habitable structure shall not include non-habitable accessory buildings, mobile homes, barns, garages and sheds. [Residence definition deleted] Site-specific authorization means the prior approval by ordinance of City Council, of one or more specifically located and defined gas well site locations, subject to further site design, development, regulatory and permitting requirements, as set forth in this Code or as specified within the site approval ordinance (or both), as applicable. 35.22.3 Zoning District Classifications for Gas Well Drilling and Production A. The drilling and production of gas within the corporate limits of the City shall be permitted by right within the Rural Residential (RD-5) or within any unzoned area of the City that is subject to the use regulations of the RD-5 District, Rural Commercial (RC), Neighborhood Residential 1 (NR-1), Neighborhood Residential 2 (NR-2), Regional Center Commercial Neighborhood (RCC- N), Regional Center Commercial Downtown (RCC-D), Employment Center Commercial (EC- q, Employment Center Industrial (EC-1), Industrial Center Employment (IC-E) and Industrial Center General (IC-G) Zoning Districts, except as provided in subsection B, and subject to compliance with the requirements of this subchapter. B. The drilling and production of gas within the corporate limits of the City in all other zoning districts shall be permitted only by Specific Use Permit pursuant to subchapter 35.6, or through approval of a Detailed Plan in a Planned Development (PD) district, or site-specific authorization in Master Planned Community (1VIPC) district. Notwithstanding the provisions of Subsection A, approval of a Specific Use Permit also shall be.required for gas well drilling and production on any land located within the 100-year floodway or within one thousand, two hundred feet (1,200') of the flood pool elevation of Lake Ray Roberts or Lake Lewisville. 35.22.4 Required Authorization for Gas Well Drilling and Production in City Limits A. No gas well drilling or production activities may commence within the City limits until the following authorizations have been obtained, in the following sequence: 1. Approval of a Specific Use Permit, where required by section 35.22.3.B., approval of a Detailed Plan in a Planned Development (PD) district, or site-specific authorization in a Master Planned Community (MPC) district; G. Legal Non-Conformity Provision 1. The amendments to the standards and procedures enacted by Ord. No. 2010-181 pertaining to changes in Denton Development Code Subchapters 35-3, 35-16, 35-22 and 35-23 do not apply to applications for permits for gas well drilling and production if, on the effective date of such ordinance (August 4, 2010), the following circumstances existed: a. For Gas Well Development Plats and associated Watershed Protection Permit, a complete application for a Gas Well Development Plat, together with an required Watershed Protection Permit application, was pending for decision on such date, or the area to be platted was the subject of an approved SUP, detailed plan within a PD district, or site-specific authorization within a NMC district for gas well drilling and production that was still in effect on August 4, 2010, provided that the application is subject to all gas well drilling and production standards in effect immediately prior to such date. b. For Gas Well Permits, the application for the Gas Well Permit is subject to a Gas Well Development Plat that identifies the well site, the Plat was approved prior to August 4, 2010, and gas well drilling and production activities previously have commenced for another gas well subject to the approved Gas Well Development Plat that is located within one thousand feet (1,000') of the proposed gas well site, provided that the application is subject to all gas well drilling and production standards in effect immediately prior to such date. 2. For Gas Well Permits other than those described in subsection 1.b., if a complete application for a Gas Well Permit was pending on August 4, 2010, the application is not subject to the separation standards prescribed in section 35.22.5.A.1, as amended ordinance 2010-181, provided that the application is subject to all gas well drilling and production separation standards in effect immediately prior to such date. 35.22.5 A. The drilling and production of gas wells within the City limits shall be subject to the following standards. 1. Separation standards. The following requirements apply only within City limits. a. No gas well drilling or production area may be located within one thousand feet (1,000') of any Protected Use, or freshwater well currently in use at the time a complete application for a Gas Well Development Plat or Gas Well Development Site Plan is filed, or within one thousand feet (1,000') of any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more habitable structures. b. Except where more stringent separation distances are specified, the minimum separation distance between a gas drilling or production area and all other habitable structures other than those listed in 35.22.5.A.1.a, shall be five hundred feet (500'). d. In lieu of 35.22.5.A.1.c above, the standards established in 35.22.5.A.1.a and b may be reduced if all the property owners of the Protected Uses, all owners of property with a freshwater well currently in use at the time a complete application for a Gas Well Development Site Plan is filed, and all owner of lots in a previously platted residential subdivision where one (1) or more lots have one (1) or more habitable structures within the reduced separation area, consent to the reduction via a notarized waiver, and the notarized waiver is attached to the permit application. However, the minimum separation distance shall not be reduced to less than two hundred and fifty feet (250'), via the notarized waiver. e. Notwithstanding any other provision of this subsection, a Protected Use or lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more habitable structures may be located as close as two hundred fifty feet (250') of a pre-existing drilling and production area, provided that the lots or Protected Use is not served by a freshwater well that is located within one thousand feet (1,000') of the drilling and production area. 35.22.5.A.2 n. All well heads, storage tanks, separation facilities or other mechanical equipment located within one thousand feet (1,000') of any Protected Use, or any lot within a previously platted residential subdivision where one (1) or more lots have one (1) or more habitable structures, or within five hundred feet (500') of all other habitable structures other than those listed in 35.22.5.A.1.a, and not within a floodplain, shall be screened with an eight-foot (8') high or higher opaque decorative masonry wall, if the Protected Use, habitable structures, or platted lot preexisted the approval of the first applicable requirement in the sequence of authorizations established under 35.22.4. 35.22.5.A.8.b A Watershed Protection Permit containing an ESA assessment of the drill site shall be submitted to the DRC by the Watershed Protection Department and/or the Floodplain Administrator for all applicable ESA's prior to the approval of a Gas Well Development Plat or Gas Well Development Site Plan. 35.22.5.A.8.f No more than ten (10) percent of the floodplain, within the limits of the gas Drilling and Production Area may be filled. 35.22.5.C Noise Management Standards The following standards apply to gas well drilling and production in the City limits. 2. No gas well drilling equipment, production equipment, re-drilling equipment, or any other associated equipment shall be operated at any gas well drilling or production area within the City in such a manner so as to create any noise that exceeds seventy five decibels (75dB) when measured three hundred (300) feet from the boundaries of the gas well drilling or production area, 4. If the ambient noise level that was established and submitted to the City in accordance with 35.22.5.C.1 is higher than seventy five decibels (75dB), the noise generated from the gas well drilling or production area may not exceed the established ambient noise level by more than five decibels (5dB) during daytime hours and three decibels (3dB) during nighttime hours, except as provided by 35.22.5.C.5 below. 35.22.5.A.8.C.rv Tree Mitigation funds shall be paid prior to final approval of a gas Drilling and Production Area in a Flood Fringe or other ESA. 35.22.6 Gas Well Development Site Plan and Watershed Protection Permit B. Application Requirements - Gas Well Development Site Plan [Title amendment only] D. Criteria for Approval 1. No Gas Well Development Site Plan shall contain more than one (1) drilling or production area, and the area shall not be greater than five (5) acres in size. All standards in section 35.22.5 shall be met, and all conditions attached to prior approvals shall be incorporated in the approval of the Gas Well Development Site Plan. 35.22.10 A. All applications for Gas Well Permits shall be filed with the Department who shall immediately forward all applications to the DRC for review. Incomplete applications shall be returned to the applicant, in which case the City shall provide a written explanation of the deficiencies if requested by the applicant. The City shall retain a processing fee determined by ordinance. The City may return any application as incomplete if there is a dispute pending before the Railroad Commission regarding the determination of the operator. No Gas Well Permit shall be approved under this Section unless the property owner or applicant first receives approval of 1. a Specific Use Permit, where required, a Detailed Plan in a Planned Development D district, or a site-specific authorization in a Master Planned Community (MPC) district; 2. a Watershed Protection Permit, where applicable; and 3. a Gas Well Development Site Plan. Denial or conditional approval of any such applications shall be grounds for denial or conditional approval of the Gas Well Permit. B. The DRC shall review each application within 15 days after acceptance for filing and shall determine: 2. whether the application is in conformance with the applicable Gas Well Development Site Plan, applicable Specific Use Permit or Planned Development Zoning District; and 3. whether the application is in conformance with the insurance and security requirements set forth in Subsection 35.22.8 and Subsection 35.22.9. C. The Fire Marshal shall review the application and the written report of the DRC and shall issue the Gas Well Permit after receiving the DRC report within ten (10) days or determine that the application is not in conformance with the applicable Gas Well Development Site Plan, applicable Specific Use Permit, Detailed Plan in a Planned Development (PD) district, or site- specific authorization in a Master Planned Community (MPC) district. The Fire Marshal may employ a technical advisor under the Fire Code. 35.22.10.1 Expiration of Gas Well Permit 3. If gas well drilling has commenced prior to the expiration of the Gas Well Permit issued by the City, the permit shall continue, and Operator shall be subject to an Annual Inspection and Administration fee. 4. If gas well drilling or production activities have commenced following issuance of a Gas Well Permit by the City before the expiration date, the approved drilling and production area and all activities shall be subject to inspections by the City to ensure compliance with terms and conditions of the Gas Well Permit and all applicable standards of the DDC. 35.22.12.B All dwellings within one thousand (1,000) feet of a well shall be notified a minimum of forty-eight hours prior to fracturing of a wellhead. 35.22.13 Amended Gas Well Permits D. If the activities proposed by the amendment are not materially different from the activities covered by the existing Gas Well Permit or Gas Well Development Site Plan, and if the proposed activities are in conformance with the applicable Watershed Protection Permit, Gas Well Development Site Plan, applicable Specific Use Permit or Detailed Plan in a Planned Development (PD) district, or site-specific authorization in a Master Planned Community (IVII'C) district, then the Fire Marshal shall approve the amendment within ten (10) days after the application is filed. E. If the activities proposed by the amendment are materially different from the activities covered by the existing gas well permit, and if the proposed activities are in conformance with the applicable Watershed Protection Permit, Gas Well Development Site Plan, applicable Specific Use Permit or Detailed Plan in a Planned Development (PD) district, or site-specific authorization in a Master Planned Community (MPC) district, then the Fire Marshal shall approve the amendment within thirty (30) days after the application is filed. In addition, if the activities proposed by the amendment are materially different or, in the judgment of the Fire Marshal, might create a risk of imminent destruction of property or injury to persons that was not associated with the activities covered by the existing permit or that was not otherwise taken into consideration by the existing permit, the Fire Marshal may require the amendment to be processed as a new Gas Well Permit application.