A.
Findings of fact.
(1)
It is hereby found that the rivers, streams and watercourses
in the Township of East Hanover are subject to recurrent flooding;
that such flooding endangers life and damages public and private property
and facilities; that this condition is aggravated by developments
and encroachments in the floodplain; and that the most appropriate
method of alleviating such condition is through regulation of such
developments and encroachments. It is, therefore, determined that
the special and paramount public interest in the floodplain justifies
the regulation of property located therein as provided in this article,
which is in the exercise of the police power of the municipality,
for the protection of the persons and property of its inhabitants
and for the preservation of the public health, safety and general
welfare.
(2)
It is also hereby found that the Federal Insurance
Administration has identified the areas having special flood hazards
and has provided water surface elevations for the one-hundred-year
base flood.
[Amended 8-27-1981 by Ord. No. 21-1981]
B.
Purpose.
(1)
It is the purpose of this article to promote the public
health, safety and general welfare of the community and to minimize
public and private losses due to flood conditions in specific areas
by the implementation of provisions designed to:
(a)
Protect human life and health.
(b)
Reduce public expenditures for costly flood
control projects, emergency operations, evacuations and restorations.
(c)
Minimize prolonged business and public interruptions.
(d)
Prevent damage to public facilities and utilities,
such as; water and gas mains, electric, telephone and sewer lines,
streets and bridges located in the floodplains.
(e)
Prevent the installation of structures which
increase flood heights.
(f)
Remove the impediment to community growth created
by recurrent flooding.
(g)
Help maintain a stable tax base by providing
for the sound use and development of flood-prone areas in such a manner
as to minimize future flood-blight areas.
(h)
Prevent further inappropriate development in
unprotected floodplains, thus reducing future expenditures for protective
measures.
(i)
Ensure that potential buyers are notified that
property is located in a flood area.
(2)
It is further stated that the purpose and intent of
this article is also to preserve and perpetuate in an open and natural
state certain lake, water areas and watercourses hereinafter described
because their unique physical features are deemed desirable and functional
and natural drainageways and water-retention areas, natural habitat
for plant and animal life, green space and other uses beneficial to
the health, safety and welfare of the community.
(3)
The regulations of this article are designed not only
to preserve certain natural features as above stated, but also to
protect the Township from costs incurred in compensation for problems
created by unsuitable development. Erosion control, flood control,
control of defoliation and protection of aquifer recharge areas are
all legitimate concerns affecting the health and safety of the citizens
of the Township of East Hanover and, as such, subject to control under
this article.
(4)
The areas herein described contain valuable environmental
qualities which, in order to conserve the municipality's natural resources,
preserve the amenities of its environment, prevent the overcrowding
of land, avoid undue concentration of population and alleviate severe
flooding problems, have been determined to best be retained in substantially
an undeveloped state.
C.
Authority.
(1)
The Legislature of the State of New Jersey has delegated
to local governmental units, under the authority of N.J.S.A. 40:48-1,
the responsibility to adopt regulations designed to promote the public
health, safety and general welfare of its citizens.
(2)
This Article is further authorized under the legislative
purpose of the Municipal Land Use Law (N.J.S.A. 40:55D-l et seq.),
which states that the intent and purpose of said Act is to encourage
municipal action to guide the appropriate use or development of all
lands in this state in a manner which will promote the public health,
safety, morals and general welfare; to promote the establishment of
appropriate population densities and concentrations that will contribute
to the well-being of persons, neighborhoods, communities and regions
and preservation of the environment; to promote a desirable visual
environment through creative development techniques and good civic
design and arrangements; and to promote the conservation of open space
and valuable natural resources and to prevent urban sprawl and degradation
of the environment through improper use of land.
(3)
The implementation of the purpose of this article
is further authorized by N.J.S.A. 40:55D-65, which permits zoning
ordinances to limit and regulate buildings and structures according
to their type and the nature and extent of their use, and regulate
the nature and extent of the use of land for trade, industry, residence,
open space or other purposes.
(4)
This article is further authorized under the provisions
of N.J.S.A. 58:16A-62 as a more restrictive regulation of development
and use of land in and around lake and water areas.
(5)
Furthermore, the Township of East Hanover has been
charged by the Federal Government with the mandatory implementation
of Flood Plain Management Requirements and Criteria as set forth in
Part II of the Department of Housing and Urban Development Federal
Register Rules and Regulations, Federal Insurance Administration,
National Flood Insurance Program, Section 1910.1 et seq.
D.
Scope. In order to accomplish the purposes set forth in Subsection B, this article employs the following methods:
(1)
Restrict or prohibit uses which are dangerous to health,
safety and property due to water, erosion, flood heights or velocities.
(2)
Require that uses vulnerable to floods, including
facilities which serve such uses, be protected against flood damage
at the time of initial construction.
(3)
Control the alteration of natural floodplains, streams,
channels, lakes, watercourses and natural protective barriers which
are involved in the accumulation, accommodation and retention of floodwaters.
(4)
Control filling, grading, dredging and other development
which may increase flood damage.
(5)
Prevent or regulate the construction of flood barriers
which will unnaturally divert floodwaters or which may increase flood
hazards to other lands.
A.
Usage. Unless specifically defined, words or phrases
in this article shall be interpreted so as to give them the meaning
they have in common usage and to give this article its most reasonable
application.
B.
APPEAL
APPLICANT
APPROVED PLAN
AREA OF SPECIAL FLOOD HAZARD
BASE FLOOD
CHANNEL
CRITICAL AREA
DEVELOPMENT
DRAINAGEWAY
FLOOD or FLOODING
FLOOD HAZARD AREA
FLOOD LEVEL
FLOOD MAP
FLOODPLAIN
FLOODPROOFED
FLOODWAY
HABITABLE FLOOR
NEW CONSTRUCTION
REVIEWING AGENCY
START OF CONSTRUCTION
STRUCTURE
SUBSTANTIAL IMPROVEMENT
VARIANCE
WATERCOURSE
Definitions. For the purpose of this article, certain
terms are defined as follows:
A request for a review of the Township Engineer's interpretation
of any provision of this article or a request for a variance.
[Amended 8-27-1981 by Ord. No. 21-1981]
Any person, partnership, corporation or public agency requesting
permission to engage in land disturbance activity, construction or
development.
A plan to control surface water runoff which has been approved
by the Planning Board of the Township of East Hanover.
The land in the floodplain within the community subject to
a one-percent or greater chance of flooding in any given year.
The flood having a one-percent chance of being equaled or
exceeded in any given year.
The bed and banks of a river, stream, drainage ditch, watercourse
or any other body of water which conveys the normally occurring flow.
Any area which should not be disturbed by uses incompatible
with the paramount public interest in the management of surface water
runoff and attendant environmental damage. Examples of critical impact
areas include but are not limited to lakes, ponds, floodplains and
flood hazard areas, designated stream corridors, steep slopes, highly
erodible soils, swamps, marshes, bogs, watercourses, identified aquifer
recharge and discharge areas and heavily wooded areas.
Any man-made change or disturbance to improved or unimproved
real estate, including but not limited to buildings or other structures,
mining, dredging, filling, grading, paving, excavation or drilling
operations located within the critical area or area of special flood
hazard.
Any watercourse, trench, ditch, depression or other hollow
space in the ground, natural or artificial, which collects or disburses
surface water from land.
A general and temporary condition of partial or complete
inundation of normally dry land areas from:
The area of the floodplain that is subject to flood flow
at lesser depths and lower velocities than occurs in the floodway
and that is delineated on the flood map, as further defined herein,
prepared by the Department of Housing and Urban Development, Federal
Insurance Administrator, as "area having special flood hazards: Zones
A-1 to A-10."
The base flood elevation as indicated on the flood map. Elevations
below "flood level" are subject to flooding.
The official map and Flood Insurance Study as issued by the
Federal Insurance Administration, Department of Housing and Urban
Development, for the Township of East Hanover, including all accompanying
maps, data, rules and regulations as dated and effective April 16,
1979.
That area composed of the channel, floodway and flood hazard
area.
Watertight with walls substantially impermeable to the passage
of water and with structural components having the capability of resisting
hydrostatic and hydrodynamic loads and effects of buoyancy.
The channel of a river or other watercourse and the adjacent
land areas that must be reserved in order to discharge the base flood
without cumulatively increasing the water surface elevation more than
0.2 foot.
Any floor usable for living purposes, which includes working,
sleeping, eating, cooking and recreation or a combination thereof.
A floor used only for storage purposes is not a "habitable floor."
Structures for which the start of construction commenced
on or after the effective date of this article,
The Planning Board of the Township of East Hanover is designated
as the reviewing agency and shall grant or deny development applications
in accordance with the provisions of this article.
The first placement of permanent construction of a structure
on a site, such as the pouring of slabs or footings, or any work beyond
the stage of excavation. Permanent construction does not include land
preparation, such as clearing, grading and filling, nor does it include
the installation of streets and/or sidewalks; nor does it include
excavation for a basement, footings or foundations or the erection
of temporary form; nor does it include the installation on the property
of accessory buildings, such as garages or sheds, not occupied as
a dwelling unit or as part of the main structure. For a structure
without a basement or poured footings, the "start of construction"
includes the first permanent framing or assembly of the structure
or any part thereof on its piling or foundation.
A walled and roofed building that is principally above aground.
Any repair, reconstruction or improvement of a structure
or property, the cost of which equals or exceeds 50% of the value
of the property or structure either before the improvement or repair
is started or, if the structure has been damaged and is being restored,
before the damage occurred. For the purposes of this definition, "substantial
improvement" is considered to occur when the first alteration of any
wall, ceiling, floor or other structural part of the building commences,
whether or not that alteration affects the external dimensions of
the structure. The term does not, however, include either any project
for the improvement of a structure to comply with existing state and
local health, sanitary or safety code specifications which are solely
necessary to assure safe living conditions or any alteration of a
structure listed on the National Register of Historic Places or a
State Inventory of Historic Places.
A grant of relief from the requirements of this article which
permits construction in a manner otherwise prohibited where specific
enforcement would result in unnecessary hardship.
All rivers, streams, brooks, waterways, lakes, ponds, marshes,
swamps, bogs and other bodies of water, natural or artificial, public
or private, which are contained within, flow through or border on
the Township of East Hanover or any portion thereof.
A.
Applicability. This Article shall apply to all areas
of special flood hazard, as herein defined, within the jurisdiction
of the Township of East Hanover.
B.
Adoption of Official Flood Map. The map entitled "United
States Department of Housing and Urban Development, Federal Insurance
Administration Flood Hazard Boundary Map H-01, Flood Insurance Rate
Map I-01, Flood Boundary and Floodway May OIF, Map Index, Township
of East Hanover, New Jersey, Morris County, Community No. 340341,
Initial Identification Date August 31, 1973, effective date April
16, 1979," and any subsequent revision thereto, is hereby adopted
and declared to be the Official Flood Map of the Township of East
Hanover.
C.
Compliance. No structure or land shall hereafter be
located, extended, converted or structurally altered without full
compliance with the terms of this article, the Zoning Ordinance of
the Township of East Hanover, the Subdivision and Site Plan Application
Procedure Ordinance and all other applicable ordinances and regulations
of the Township of East Hanover.[1]
D.
Abrogation and greater restrictions. This article
is not intended to repeal, abrogate or impair any existing easements,
covenants or deed restrictions. However, where this article and another
ordinance, easement, covenant or deed restriction conflict or overlap,
whichever imposes the more stringent restrictions shall prevail.
F.
Warning and disclaimer of liability. The degree of
flood protection required by this article is considered reasonable
for regulatory purposes and is based on scientific and engineering
considerations. Larger floods can and will occur on rare occasions.
Flood heights may be increased by man-made or natural causes. This
Article does not imply land outside the areas of special flood hazards
or uses permitted within such areas will be free from flooding or
flood damages. This Article shall not create liability on the part
of the Township of East Hanover or of any officer or employee thereof
for any flood damages that result from reliance on this article or
any administrative decision lawfully made thereunder.
A.
Designation of reviewing authority. The Planning Board
is hereby designated to administer and implement this article by granting
or denying development applications and site plan approval in accordance
with the provisions contained herein.
B.
Site plan approval.
(1)
No development shall hereafter take place or be erected,
enlarged or expanded in any flood area unless a site plan shall have
been submitted to the Planning Board for its review and approval.
Said plan shall be referred to the appropriate Township agencies by
the Planning Board for review and comment.
(2)
Application shall be made on forms furnished by the
Planning Board, which may include but not be limited to the following:
(a)
Plans in duplicate drawn to scale, showing the
nature, location, dimensions and elevations of the area in question;
existing or proposed structures, fill, storage of materials; drainage
facilities and the location of the foregoing.
(3)
Said site plan shall, in addition to the information
required under the Site Plan Ordinance of the Township of East Hanover,[1] show the following information:
(a)
The existing and proposed contours at a contour
interval of two feet.
(b)
Elevation in relation to mean sea level of the
lowest proposed area, including basement, within any proposed structure
after its completion.
(c)
The proposed elevations of the lands involved
at the corners of the foundation of any structure or structures.
(d)
The elevation in relation to mean sea level
to which any nonresidential structure has been floodproofed.
(f)
Description of the extent to which any watercourse
will be altered or relocated as a result of the proposed development.
(g)
The layout of existing and proposed public streets
and the nature, extent and location of existing and proposed utilities
servicing and to service the premises in question.
(h)
The elevation of any existing or proposed pumping
facilities and overflow elevations of vents or entranceways, if underground;
overflow elevations of sewage treatment plant units.
(i)
The nature and extent of the construction, alterations
or repairs.
(j)
Proof of encroachment lines obtained from the
New Jersey Department of Environmental Protection, if applicable.
(k)
The extent of filling of the land, if any.
(l)
Surrounding structures within a two-hundred-foot
radius.
(m)
Grading in accordance with the recommendations
set forth in Data Sheets 72 and 73 of Land Planning Bulletin No. 3,
Neighborhood Standards for Northern New Jersey, as issued by the Federal
Housing Administration.
C.
Duties of Planning Board in implementing site plan
standards.
(1)
In reviewing any proposed development within a flood
area, the Planning Board shall not approve a site plan unless it is
reasonably assured that:
(a)
Any structure can be occupied without peril
to the health or safety of the occupant.
(b)
Any structure will not impede the flow of surface
waters through any river, stream or other watercourse, natural or
artificial.
(c)
Whenever possible, structures shall be constructed
with the longitudinal axis parallel to the direction of flood flow
and placed approximately on the same flood flow lines as those of
adjoining structures.
(d)
The site plan takes into account floodplain
management programs, if any, already in effect in neighboring areas.
(2)
The duties of the Planning Board shall include but
not be limited to the following:
(a)
Application and site plan review.
[1]
Review all development and site plan applications
to determine that the requirements of this article have been satisfied.
In the case of all subdivision proposals and other proposed new developments
greater than 50 lots or five acres, whichever is the lesser, the Planning
Board shall require that included in such proposals shall be base
flood elevation data.
[2]
Review all applications and determine or require
that all necessary permits have been obtained from those federal,
state or local governmental agencies from which prior approval is
required.
[3]
Review all applications to determine if such
proposed development is to be located in the floodway.
(b)
Use of other base flood data. When base flood elevation data has not been provided in accordance with § 95-86B, then the Township Engineer shall obtain, review and reasonably utilize any base flood elevation data available from a federal, state or other source in order to administer the provisions of this article.
(c)
Information to be obtained and maintained.
(d)
Alteration of watercourses. Notify adjacent
communities and New Jersey State Coordinating Agency prior to any
alteration or relocation of a watercourse and submit evidence of such
notification to the Federal Insurance Administration.
The Planning Board shall also determine, with
the advice and assistance of the Township Engineer, Construction Official
and other competent authority, that:
A.
Proposed construction, repairs or alterations shall
use construction materials and utility equipment that are resistant
to flood damage, such as anchoring to prevent flotation, collapse
or lateral movement.
B.
Construction methods and practices are used that will
resist rupture or collapse from water pressure and minimize flood
damage.
C.
Proposed utilities and facilities such as water, sewer
and electrical systems are located, elevated and constructed to minimize
or eliminate flood damage. These shall include nonwatertight manholes
with vents, raised vents, flap valves, etc. Such facilities shall
be constructed with overflow elevations two feet above the flood level.
D.
Drainage is provided to reduce exposure to flood hazards.
E.
New or replacement water systems and sanitary sewage
systems are designed and located to prevent infiltration, leakage,
impairment or contamination during flooding.
F.
Watertight doors are installed.
G.
Paints, membranes or mortars are used to reduce seepage
of water through walls.
H.
Backfill is of soils with natural low permeability
or of soils treated to minimize permeability.
I.
Eight inches of compacted granular fill are used beneath
ground floor, said fill material to be daylighted in order to act
as a French drain.
J.
No buried fuel oil tanks shall be permitted unless
properly anchored and vented, with the vent two feet above the flood
level. In addition, the fill pipe shall also be two feet above the
flood level.
K.
All mechanical devices and equipment subject to water
damage, including furnaces and electrical distribution centers, are
located at least two feet above the flood level.
A.
Channel. Within the channel of a river, stream or
watercourse, no building or structure and no landfill or excavation
operations are permitted, except by a public authority in connection
with stream improvement or stabilization, without the specific approval
of the State Department of Environmental Protection and the Township
Planning Board.
B.
Floodway. No building or structure shall be erected
or moved or externally altered or added to or enlarged, nor shall
any material or equipment be stored, nor shall any fill be placed,
nor shall elevations of any land be substantially changed in the floodway,
except by specific approval of the State Department of Environmental
Protection and the Township Planning Board. The accepted practices
of soil husbandry, the harvesting of crops in connection with farming
and recreational uses in the nature of parks, playgrounds, golf courses,
boat landings, docks and picnic grounds shall be permitted in accordance
with a permit provided by this article, provided such activities or
development shall not cause any increased flood heights.
C.
Flood hazard area.
(1)
Within any defined flood hazard area (that portion
of the floodplain lying outside of the floodway), no building or structure
shall be erected or moved or externally altered, added to or enlarged
except in accordance with all applicable ordinances of the Township,
and provided that:
(a)
The lowest habitable floor elevation is two
feet above the level of the flood hazard elevations shown on the Flood
Map.
(b)
Each main building or structure shall have or
be provided with a building site or yard that is not lower than the
established high-water elevation plus one foot and extends outside
the building walls at least five feet. The finished grade or surface
of this yard shall be sloped to drain away from the walls for a distance
of at least five feet.
(c)
No cellar may be constructed in any flood hazard
area.
(d)
All utilities, structures and buildings shall
be floodproofed at least two feet above flood level elevations shown
on the Flood Map.
(2)
In cases of doubt or uncertainty as to the exact limit
of the floodway, flood hazard area or floodplain, the Planning Board
may require additional information from competent authority. Such
additional information may consist of visual inspections, flood records,
field surveys and personal observation.
A.
Appeal Board.
(1)
The Planning Board, as established by the Township
of East Hanover, shall hear and decide appeals and requests for variances
from the requirements of this article.
(2)
The Planning Board shall bear and decide appeals when
it is alleged that there is an error in any requirement or in the
interpretation or administration of this article.
[Amended 8-27-1981 by Ord. No. 21-1981]
(3)
Prior to the Planning Board action on a request for
a variance or any appeal set forth hereunder, the Planning Board shall
require and review the report of the Township Engineer on the application
before it.
[Added 8-27-1981 by Ord. No. 21-1981]
(4)
Any person aggrieved by the decision of the Planning
Board or any taxpayer may appeal such decision to the Superior Court
of the State of New Jersey, as provided by law.
(5)
Factors for consideration.
(a)
In passing upon such applications, the Planning
Board shall consider all technical evaluations, factors, standards
specified in other sections of this article and:
[1]
The danger that materials may be swept onto
other lands to the injury of others.
[2]
The danger to life and property due to flooding
or erosion damage.
[3]
The susceptibility of the proposed facility
and its contents to flood damage and the effect of such damage on
the individual owner.
[4]
The importance of the services provided by the
proposed facility to the community.
[5]
The necessity to the facility of a waterfront
location, where applicable.
[6]
The availability of alternative locations not
subject to flooding or erosion damage for the proposed use.
[7]
The compatibility of the proposed use with existing
and anticipated development.
[8]
The relationship of the proposed use to the
comprehensive plan and floodplain management program for that area.
[9]
The safety of access to the property in times
of flood for ordinary and emergency vehicles.
[10]
The expected heights, velocity, duration, rate
of rise and sediment transport of the floodwaters and the effects
of wave action, if applicable, expected at the site.
[11]
The cost of providing governmental services
during and after flood conditions, including maintenance and repair
of public utilities and facilities such as sewer, gas, electrical
and water systems and streets and bridges.
(b)
Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided items [1] through [11] in Subsection A(5)(a) above have been fully considered. As the lot size increases beyond the 1/2 acre, the technical justification required for issuing the variance increases.
(6)
Upon consideration of the factors listed above and
the purposes of this article, the Planning Board may attach such conditions
to the granting of variances as it deemed necessary to further the
purposes of this article.
(7)
The Planning Board shall maintain the records of all
appeal actions. The Planning Board shall maintain a record of all
variance actions, including justification for their issuance, and
report any variances to the Federal Insurance Administration upon
request.
B.
Conditions for variances.
(1)
Variances may be issued for the reconstruction, rehabilitation
or restoration of structures listed on the National Register of Historic
Places or the State Inventory of Historic Places without regard to
the procedures set forth in the remainder of this section.
(2)
Variances shall not be issued within any designated
floodway if any increase in flood levels during the base flood discharge
would result.
(3)
Variances should only be issued upon a determination
that the variance is the minimum necessary, considering the flood
hazard, to afford relief.
(4)
Variances shall only be issued upon:
(a)
A showing of good and sufficient cause.
(b)
A determination that failure to grant the variance
would result in exceptional hardship to the applicant.
(c)
A determination that the granting of a variance
will not result in increased flood heights or additional threats to
public safety or extraordinary public expense, create nuisances, cause
fraud on or victimization of the public or conflict with existing
local laws or ordinances.
(5)
Any applicant to whom a variance is granted shall
be given written notice that the structure will be permitted to be
built, which notice will state the lowest flood elevation permitted
below the base flood elevation and that the cost of flood insurance
will be commensurate with the increased risk resulting from the reduced
lowest floor elevation.
At such time as the Township of East Hanover
or reviewing agency has cause to act upon mobile homes, the criteria
to be utilized for review shall be based upon Section 1910.3 of the
Rules and Regulations, Federal Register, Volume 41, Number 207, dated
October 26, 1976.
The Planning Board shall act upon any site plan provided for in § 95-87C within 45 days of the date of the filing of a completed application or the date of approval by the State Department of Environmental Protection, whichever is later, or other extension of time agreed to by the applicant. Failure of the Planning Board to act within the time limit or limits shall be deemed an approval of any site plan submitted under this article. Planning Board disapproval shall include written findings.