[Ord. No. 2197-02; amended in entirety by Ord. No. 2287-07]
701.1.Â
Statutory Authorization. The Legislature
of the State of New Jersey has in N.J.S.A. 40:48-1 et seq., delegated
the responsibility to local governmental units to adopt regulations
designed to promote public health, safety, and general welfare of
its citizenry. Therefore, the Township Committee of the Township of
Millburn, State of New Jersey does ordain as follows.
[Ord. No. 2287-07]
701.2.Â
Findings of Fact.
[Ord. No. 2287-07]
a.Â
The flood hazard areas of Millburn are
subject to periodic inundation which results in loss of life and property,
health and safety hazards, disruption of commerce and governmental
services, extraordinary public expenditures for flood protection and
relief, and impairment of the tax base, all of which adversely affect
the public health, safety, and general welfare.
b.Â
These flood losses are caused by the cumulative
effect of obstructions in areas of special flood hazard which increase
flood heights and velocities, and when inadequately anchored, damage
uses in other areas. Uses that are inadequately floodproofed, elevated
or otherwise protected from flood damage also contribute to the flood
loss.
701.3.Â
Statement of Purpose. It is the purpose
of this ordinance to promote the public health, safety, and general
welfare, and to minimize public and private losses due to flood conditions
in specific areas by provisions designed:
[Ord. No. 2287-07]
a.Â
To protect human life and health;
b.Â
To minimize expenditure of public money
for costly flood control projects;
c.Â
To minimize the need for rescue and relief
efforts associated with flooding and generally undertaken at the expense
of the general public;
d.Â
To minimize prolonged business interruptions;
e.Â
To minimize damage to public facilities
and utilities such as water and gas mains, electric, telephone and
sewer lines, streets, bridges located in areas of special flood hazard;
f.Â
To help maintain a stable tax base by providing
for the second use and development of areas of special flood hazard
so as to minimize future flood blight areas;
g.Â
To insure that potential buyers are notified
that property is in an area of special flood hazard; and
h.Â
To ensure that those who occupy the areas
of special flood hazard assume responsibility for their actions.
701.4.Â
Methods of Reducing Flood Losses.
In order to accomplish its purposes, this ordinance includes methods
and provisions for:
[Ord. No. 2287-07]
a.Â
Restricting or prohibiting uses which are
dangerous to health, safety, and property due to water or erosion
hazards, or which result in damaging increases in erosion or in flood
heights or velocities;
b.Â
Requiring that uses vulnerable to floods
including facilities which serve such uses, be protected against flood
damage at the time of initial construction;
c.Â
Controlling the alteration of natural flood
plains, stream channels, and natural protective barriers, which help
accommodate or channel flood waters;
d.Â
Controlling filling, grading, dredging,
and other development which may increase flood damage; and,
e.Â
Preventing or regulating the construction
of flood barriers which will unnaturally divert flood waters or which
may increase flood hazards in other areas.
[Ord. No. 2287-07]
Unless specifically defined below,
words or phrases used in this ordinance shall be interpreted so as
to give them the meaning they have in common usage and to give this
ordinance its most reasonable application.
A request for a review of the Construction Code Official's
interpretation of any provision of this ordinance or a request for
a variance.
A designated AO, AH, or VO zone on a community's Digital
Flood Insurance Rate Map (DFIRM) with a 1% annual or greater chance
of flooding to an average depth of one foot to three feet where a
clearly defined channel does not exist, where the path of flooding
is unpredictable and where velocity flow may be evident. Such flooding
is characterized by ponding or sheet flow.
The land in the flood plain within a community subject to
a 1% or greater chance of flooding in any given year.
The flood having a 1% chance of being equaled or exceeded
in any given year.
Any area of the building having its floor subgrade (below
ground level) on all sides.
A wall that is not part of the structural support of the
building and is intended through its design and construction to collapse
under specific lateral loading forces without causing damage to the
elevated portion of the building or supporting foundation system.
Any man-made change to improved or unimproved real estate,
including but not limited to buildings or other structures, mining,
dredging, filling, grading, paving, excavation or drilling operations,
or storage of equipment or materials located within the area of special
flood hazard.
The official map on which the Federal Insurance Administration
has delineated both the areas of special flood hazards and the risk
premium zones applicable to the community.
A non-basement building (i) built in the case of a building
in an Area of Special Flood Hazard to have the top of the elevated
floor elevated above the ground level by means of piling, columns
(posts and piers), or shear walls parallel to the flow of the water,
and (ii) adequately anchored so as not to impair the structural integrity
of the building during a flood up to the magnitude of the base flood.
In an Area of Special Flood Hazard "elevated building" also includes
a building elevated by means of fill or solid foundation perimeter
walls with openings sufficient to facilitate the unimpeded movement
of floodwaters.
The official map on which the Federal Insurance Administration
has delineated both the areas of special flood hazards and the risk
premium zones applicable to the community.
The official report in which the Federal Insurance Administration
has provided flood profiles, as well as the Digital Flood Insurance
Rate Map(s) and the water surface elevation of the base flood.
A general and temporary condition of partial or complete
inundation of normally dry land areas from:
Zoning ordinances, subdivision regulations, building codes,
health regulations, special purpose ordinances (such as a flood plain
ordinance, grading ordinance and erosion control ordinance) and other
applications of police power. The term describes such State or local
regulations, in any combination thereof, which provide standards for
the purpose of flood damage prevention and reduction.
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.
The highest natural elevation of the ground surface prior
to construction next to the proposed walls of a structure.
Any structure that is:
Listed individually in the National
Register of Historic Places (a listing maintained by the Department
of Interior) or preliminarily determined by the Secretary of the Interior
as meeting the requirements for individual listing on the National
Register;
Certified or preliminarily determined
by the Secretary of the Interior as contributing to the historical
significance of a registered historic district or a district preliminarily
determined by the Secretary to qualify as a registered historic district;
Individually listed on a State inventory
of historic places in States with historic preservation programs which
have been approved by the Secretary of the Interior; or
Individually listed on a local inventory
of historic places in communities with historic preservation programs
that have been certified either:
The lowest floor of the lowest enclosed area [including basement].
An unfinished or flood resistant enclosure, usable solely for the
parking of vehicles, building access or storage in an area other than
a basement is not considered a building's lowest floor provided that
such enclosure is not built so to render the structure in violation
of other applicable non-elevation design requirements.
A structure, transportable in one or more sections, which
is built on a permanent chassis and is designed for use with or without
a permanent foundation when attached to the required utilities. The
term "manufactured home" does not include a "recreational vehicle."
A parcel (or contiguous parcels) of land divided into two
or more manufactured home lots for rent or sale.
Structures for which the start of construction commenced
on or after the effective date of a flood plain regulation adopted
by a community and includes any subsequent improvements to such structures.
A manufactured home park or subdivision for which the construction
of facilities for servicing the lots on which the manufactured homes
are to be affixed (including at a minimum, the installation of utilities,
the construction of streets, and either final site grading or the
pouring of concrete pads) is completed on or after the effective date
of the flood plain management regulations adopted by the municipality.
A vehicle which is (i) built on a single chassis; (ii) 400
square feet or less when measured at the longest horizontal projections;
(iii) designed to be self-propelled or permanently towable by a light
duty truck; and (iv) designed primarily not for use as a permanent
dwelling but as temporary living quarters for recreational, camping,
travel, or seasonal use.
For other than new construction or substantial improvements
under the Coastal Barrier Resources Act (P.L. No. 97-348) includes
substantial improvements and means the date the building permit was
issued, provided the actual start of construction, repair, reconstruction,
rehabilitation, addition, placement, or other improvement was within
180 days of the permit date. The actual start means either the first
placement of permanent construction of a structure on a site such
as the pouring of a slab or footings, the installation of piles, the
construction of columns, or any work beyond the stage of excavation,
or the placement of a manufactured home on a foundation.
Permanent construction does not include land preparation,
such as clearing, grading and filling nor does it include the installation
of streets and/or walkways, nor does it include excavation for a basement,
footings or piers, or foundations or the erection of temporary forms,
nor does it include the installation on the property of accessory
buildings, such as garages or sheds not occupied as dwelling units
or not part of the main structure. For a substantial improvement,
the actual start of construction means the first alteration of any
wall, ceiling, floor, or other structural part of a building, whether
or not that alteration affects the external dimensions of the building.
A walled and roofed building, a manufactured home, or a gas
or liquid storage tank, that is principally above ground.
Damage of any origin sustained by a structure whereby the
cost of restoring the structure to its before damaged condition would
equal or exceed 50% of the market value of the structure before the
damage occurred.
Any reconstruction, rehabilitation, addition, or other improvement
of a structure, the cost of which exceeds 50% of the market value
of the structure before the "start of construction" of the improvement.
This term includes structures which have incurred "substantial damage,"
regardless of the actual repair work performed. The term does not,
however, include either:
Any project for improvement of a
structure to correct existing violations of State or local health,
sanitary or safety code specifications which have been identified
by the local Code Enforcement Officer and which are the minimum necessary
to assure safe living conditions; or
Any alteration of a "historic structure,"
provided that the alteration will not preclude the structure's continued
designation as a "historic structure."
A grant of relief from the requirements of this ordinance
that permits construction in a manner that would otherwise be prohibited
by this ordinance.
703.1.Â
Lands to Which this Ordinance Applies.
This ordinance shall apply to all areas of special flood hazards within
the jurisdiction of the Township of Millburn, Essex County, New Jersey.
[Ord. No. 2287-07]
703.2.Â
Basis for Establishing the Areas
of Special Flood Hazard. The areas of special flood hazard for the
Township of Millburn, Community No. 340187, are identified and defined
on the following documents prepared by the Federal Emergency Management
Agency:
[Ord. No. 2287-07]
a.Â
A scientific and engineering report "Flood
Insurance Study, Essex County, New Jersey (All Jurisdictions)" dated
June 4, 2007.
b.Â
Flood Insurance Rate Map for Essex County,
New Jersey (All Jurisdictions) as shown on Index and panel numbers
0088, 0089, 0093, 0126, 0127, 0129, 0131, 0133; whose effective date
is June 4, 2007.
The above documents are hereby adopted
and declared to be a part of this ordinance. The Flood Insurance Study
and maps are on file at 375 Millburn Ave., Millburn, NJ 07041-1379.
703.3.Â
Penalties for Noncompliance. No structure
or land shall hereafter be constructed, located, extended, converted,
or altered without full compliance with the terms of this ordinance
and other applicable regulations. Violation of the provisions of this
ordinance by failure to comply with any of its requirements (including
violations of conditions and safeguards established in connection
with conditions) shall constitute a misdemeanor. Any person who violates
this ordinance or fails to comply with any of its requirements shall
upon conviction thereof be fined not more than $1,000 or imprisoned
for not more than 30 days, or both, for each violation, and in addition
shall pay all costs and expenses involved in the case. Nothing herein
contained shall prevent the Township of Millburn from taking such
other lawful action as is necessary to prevent or remedy any violation.
[Ord. No. 2287-07]
703.4.Â
Abrogation and Greater Restrictions.
This ordinance is not intended to repeal, abrogate, or impair any
existing easements, covenants, or deed restrictions. However, where
this ordinance and other ordinance, easement, covenant, or deed restriction
conflict or overlap, whichever imposes the more stringent restrictions
shall prevail.
[Ord. No. 2287-07]
703.5.Â
Interpretation. In the interpretation
and application of this ordinance, all provisions shall be:
[Ord. No. 2287-07]
703.6.Â
Warning and Disclaimer of Liability.
The degree of flood protection required by this ordinance 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 ordinance does not imply that land outside the area of special
flood hazards or uses permitted within such areas will be free from
flooding or flood damages.
This ordinance shall not create liability
on the part of the Township of Millburn, any officer or employee thereof
or the Federal Insurance Administration, for any flood damages that
result from reliance on this ordinance or any administrative decision
lawfully made thereunder.
[Ord. No. 2287-07]
704.1.Â
Establishment of Development Permit.
A Development Permit shall be obtained before construction or development
begins within any area of special flood hazard established in Section
703.2. Application for a Development Permit shall be made on forms
furnished by the Construction Code Official and may include, but not
be limited to; 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.
Specifically, the following information
is required:
[Ord. No. 2287-07]
a.Â
Elevation in relation to mean sea level,
of the lowest floor (including basement) of all structures;
b.Â
Elevation in relation to mean sea level
to which any structure has been floodproofed.
c.Â
Certification by a registered professional
engineer or architect that the floodproofing methods for any nonresidential
structure meet the floodproofing criteria in Section 705.2.2; and,
d.Â
Description of the extent to which any
watercourse will be altered or relocated as a result of proposed development.
704.2.Â
Designation of the Local Administrator.
The Township Engineer is hereby appointed to administer and implement
this ordinance by granting or denying development permit applications
in accordance with its provisions.
[Ord. No. 2287-07; Ord. No. 2415-13]
704.3.Â
Duties and Responsibilities of the
Administrator. Duties of the Township Engineer shall include, but
not be limited to:
[Ord. No. 2415-13]
704.3.1.Â
Permit Review.
[Ord. No. 2287-07]
a.Â
Review all development permits to
determine that the permit requirements of this ordinance have been
satisfied.
b.Â
Review all development permits to
determine that all necessary permits have been obtained from those
Federal, State or local governmental agencies from which prior approval
is required.
c.Â
Review all development permits to
determine if the proposed development is located in the floodway,
assure that the encroachment provisions of Section 705.3a are met.
704.3.2.Â
Use of Other Base Flood
and Floodway Data. When base flood elevation and floodway data has
not been provided in accordance with Section 703.2, Basis for Establishing
the Areas of Special Flood Hazard, the Township Engineer shall obtain,
review, and reasonably utilize any base flood elevation and floodway
data available from a Federal, State or other source, in order to
administer Sections 705.2.1, Specific Standards, Residential Construction,
and 705.2.2, Specific Standards, Nonresidential Construction.
[Ord. No. 2287-07; Ord. No. 2415-13]
704.3.3.Â
Information to Be Obtained
and Maintained.
[Ord. No. 2287-07]
a.Â
Obtain and record the actual elevation
(in relation to mean sea level) of the lowest floor (including basement)
of all new or substantially improved structures, and whether or not
the structure contains a basement.
c.Â
Maintain for public inspection all
records pertaining to the provisions of this ordinance.
704.3.4.Â
Alteration of Watercourses.
[Ord. No. 2287-07]
a.Â
Notify adjacent communities and the
New Jersey Department of Environmental Protection, Dam Safety and
Flood Control Section and the Land Use Regulation Program prior to
any alteration or relocation of a watercourse, and submit evidence
of such notification to the Federal Insurance Administration.
b.Â
Require that maintenance is provided
within the altered or relocated portion of said watercourse so the
flood carrying capacity is not diminished.
704.3.5.Â
Interpretation of DFIRM/FIRM
Boundaries. Make interpretations where needed, as to the exact location
of the boundaries of the areas of special flood hazards (for example,
where there appears to be a conflict between a mapped boundary and
actual field conditions). The person contesting the location of the
boundary shall be given a reasonable opportunity to appeal the interpretation
as provided in Section 704.4.
[Ord. No. 2287-07]
704.4.Â
Variance Procedure.
704.4.1.Â
Appeal Board.
a.Â
The Zoning Board of Adjustment, as
established by the Township of Millburn, shall hear and decide appeals
and requests for variances from the requirements of this ordinance.
b.Â
The Zoning Board of Adjustment shall
hear and decide appeals when it is alleged there is an error in any
requirement, decision, or determination made by the Township Engineer
in the enforcement or administration of this ordinance.
[Ord. No. 2415-13]
c.Â
Those aggrieved by the decision of
the Zoning Board of Adjustment, or any taxpayer, may appeal such decision
to the Superior Court of New Jersey, as provided by law.
d.Â
In passing upon such applications,
the Zoning Board of Adjustment, shall consider all technical evaluations,
all relevant factors, standards specified in other sections of this
ordinance, and:
1.Â
The danger that materials may be
swept onto other lands to the injury of others;
2.Â
The danger to life and property due
to flooding or erosion damage;
3.Â
The susceptibility of the proposed
facility and its contents to flood damage and the effect of such damage
on the individual owner;
4.Â
The importance of the services provided
by the proposed facility to the community;
5.Â
The necessity to the facility of
a waterfront location, where applicable;
6.Â
The availability of alternative locations
for the proposed use which are not subject to flooding or erosion
damage;
7.Â
The compatibility of the proposed
use with existing and anticipated development;
8.Â
The relationship of the proposed
use to the comprehensive plan and flood plain management program of
that area;
9.Â
The safety of access to the property
in times of flood for ordinary and emergency vehicles;
10.Â
The expected heights, velocity, duration,
rate of rise, and sediment transport of the flood waters and the effects
of wave action, if applicable, expected at the site; and,
11.Â
The costs 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.
e.Â
Upon consideration of the factors
of Section 704.4.1d and the purposes of this ordinance, the Zoning
Board of Adjustment may attach such conditions to the granting of
variances as it deems necessary to further the purposes of this ordinance.
f.Â
The Township Engineer shall maintain
the records of all appeal actions, including technical information,
and report any variances to the Federal Insurance Administration upon
request.
704.4.2.Â
Conditions for Variances.
[Ord. No. 2287-07]
a.Â
Generally, variances may be issued
for new construction and substantial improvements to be erected on
a lot of one-half acre or less in size contiguous to and surrounded
by lots with existing structures constructed below the base flood
level, providing items 1 to 11 in Section 704.4.1d have been fully
considered. As the lot size increases beyond the one-half acre, the
technical justification required for issuing the variance increases.
b.Â
Variances may be issued for the repair
or rehabilitation of historic structures upon a determination that
the proposed repair or rehabilitation will not preclude the structure's
continued designation as a historic structure and the variance is
the minimum necessary to preserve the historic character and design
of the structure.
c.Â
Variances shall not be issued within
any designated floodway if any increase in flood levels during the
base flood discharge would result.
d.Â
Variances shall only be issued upon
a determination that the variance is the minimum necessary, considering
the flood hazard, to afford relief.
e.Â
Variances shall only be issued upon:
1.Â
A showing of good and sufficient
cause;
2.Â
A determination that failure to grant
the variance would result in exceptional hardship to the applicant;
and,
3.Â
A determination that the granting
of a variance will not result in increased flood heights, additional
threats to public safety, extraordinary public expense, create nuisances,
cause fraud on or victimization of the public as identified in Section
704.4.1d, or conflict with existing local laws or ordinances.
f.Â
Any applicant to whom a variance
is granted shall be given written notice that the structure will be
permitted to be built with a lowest floor elevation 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.
705.1.Â
General Standards. In all areas of
special flood hazards the following standards are required:
[Ord. No. 2287-07]
705.1.1.Â
Anchoring.
[Ord. No. 2287-07]
a.Â
All new construction and substantial
improvements shall be anchored to prevent flotation, collapse, or
lateral movement of the structure.
b.Â
All manufactured homes shall be anchored
to resist flotation, collapse or lateral movement. Methods of anchoring
may include, but are not to be limited to, use of over-the-top or
frame ties to ground anchors. This requirement is in addition to applicable
State and local anchoring requirements for resisting wind forces.
705.1.2.Â
Construction materials
and methods.
[Ord. No. 2287-07]
705.1.3.Â
Utilities.
[Ord. No. 2287-07]
a.Â
All new and replacement water supply
systems shall be designed to minimize or eliminate infiltration of
floodwaters into the system;
b.Â
New and replacement sanitary sewage
systems shall be designed to minimize or eliminate infiltration of
floodwaters into the systems and discharge from the systems into floodwaters;
c.Â
On-site waste disposal systems shall
be located to avoid impairment to them or contamination from them
during flooding; and
d.Â
Electrical, heating, ventilation,
plumbing and air-conditioning equipment and other service facilities
shall be designed and/or located so as to prevent water from entering
or accumulating within the components during conditions of flooding.
705.1.4.Â
Subdivision Proposals.
[Ord. No. 2287-07]
a.Â
All subdivision proposals shall be
consistent with the need to minimize flood damage;
b.Â
All subdivision proposals shall have
public utilities and facilities such as sewer, gas, electrical, and
water systems located and constructed to minimize flood damage;
c.Â
All subdivision proposals shall have
adequate drainage provided to reduce exposure to flood damage; and,
d.Â
Base flood elevation data shall be
provided for subdivision proposals and other proposed development
which contain at least 50 lots or five acres (whichever is less).
705.1.5.Â
Enclosure Openings. All
new construction and substantial improvements having fully enclosed
areas below the lowest floor that are usable solely for parking of
vehicles, building access or storage in an area other than a basement
and which are subject to flooding shall be designed to automatically
equalize hydrostatic flood forces on exterior walls by allowing for
the entry and exit of floodwaters. Designs for meeting this requirement
must either be certified by a registered professional engineer or
architect or must meet or exceed the following minimum criteria: A
minimum of two openings having a total net area of not less than one
square inch for every square foot of enclosed area subject to flooding
shall be provided. The bottom of all openings shall be no higher than
one foot above grade. Openings may be equipped with screens, louvers,
or other covering or devices provided that they permit the automatic
entry and exit of floodwaters.
[Ord. No. 2287-07]
705.2.Â
Specific Standards. In all areas
of special flood hazards where base flood elevation data have been
provided as set forth in Section 703.2, Basis for Establishing the
Areas of Special Flood Hazard or in Section 704.3.2, Use of Other
Base Flood and Floodway Data, the following standards are required:
[Ord. No. 2287-07]
705.2.1.Â
Residential Construction.
[Ord. No. 2287-07]
a.Â
New construction and substantial
improvement of any residential structure shall have the lowest floor,
including basement, elevated to or above base flood elevation;
b.Â
Require within any AO zone on the
municipality's DFIRM/FIRM that all new construction and substantial
improvement of any residential structure shall have the lowest floor,
including basement, elevated above the highest adjacent grade at least
as high as the depth number specified in feet (at least two feet if
no depth number is specified). And, require adequate drainage paths
around structures on slopes to guide floodwaters around and away from
proposed structures.
705.2.2.Â
Nonresidential Construction.
[Ord. No. 2287-07]
a.Â
New construction and substantial
improvement of any commercial, industrial or other nonresidential
structure shall either have the lowest floor, including basement,
elevated to the level of the base flood elevation; or together with
the attendant utilities and sanitary facilities, shall:
b.Â
Require within any AO zone on the
municipality's DFIRM/FIRM that all new construction and substantial
improvement of any commercial, industrial or other nonresidential
structure shall either have the lowest floor, including basement,
elevated above the highest adjacent grade at least as high as the
depth number specified in feet (at least two feet if no depth number
is specified). And, require adequate drainage paths around structures
on slopes to guide floodwaters around and away from proposed structures;
or
c.Â
Be floodproofed so that below the
base flood level the structure is watertight with walls substantially
impermeable to the passage of water;
d.Â
Have structural components capable
of resisting hydrostatic and hydrodynamic loads and effects of buoyancy;
and,
e.Â
Be certified by a registered professional
engineer or architect that the design and methods of construction
are in accordance with accepted standards of practice for meeting
the applicable provisions of this subsection. Such certification shall
be provided to the official as set forth in Section 704.3.3b.
705.2.3.Â
Manufactured Homes.
[Ord. No. 2287-07]
a.Â
Manufactured homes shall be anchored
in accordance with Section 705.1.1b.
b.Â
All manufactured homes to be placed
or substantially improved within an area of special flood hazard shall
be elevated on a permanent foundation such that the top of the lowest
floor is at or above the base flood elevation.
705.3.Â
Floodways. Located within areas of
special flood hazard established in Section 703.2 are areas designated
as floodways. Since the floodway is an extremely hazardous area due
to the velocity of floodwaters which carry debris, potential projectiles,
and erosion potential, the following provisions apply:
[Ord. No. 2287-07]
a.Â
Prohibit encroachments, including fill,
new construction, substantial improvements, and other development
unless a technical evaluation demonstrates that encroachment shall
not result in any increase in flood levels during the occurrence of
the base flood discharge.
b.Â
If Section 705.3a is satisfied, all new
construction and substantial improvements must comply with Section
705 Provisions for Flood Hazard Reduction.
c.Â
In all areas of special flood hazard in
which base flood elevation data has been provided and no floodway
has been designated, the cumulative effect of any proposed development,
when combined with all other existing and anticipated development,
shall not increase the water surface elevation of the base flood more
than 0.2 of a foot at any point.
706.1.Â
Intent and Purpose. The Township
Committee of the Township of Millburn finds that riparian lands adjacent
to streams, lakes, or other surface water bodies that are adequately
vegetated provide an important environmental protection and water
resource management benefit. It is necessary to protect and maintain
the beneficial character of riparian areas by implementing specifications
for the establishment, protection, and maintenance of vegetation along
the surface water bodies within the jurisdiction of the Township of
Millburn, consistent with the interest of landowners in making reasonable
economic use of parcels of land that include such designated areas.
The purpose of this ordinance is to designate riparian zones, and
to provide for land use regulation therein in order to protect the
streams, lakes, and other surface water bodies of the Township of
Millburn; to protect the water quality of watercourses, reservoirs,
lakes, and other significant water resources within the Township of
Millburn; to protect the riparian and aquatic ecosystems of the Township
of Millburn; to provide for the environmentally sound use of the land
resources of the Township of Millburn, and to complement existing
state, regional, county, and municipal stream corridor protection
and management regulations and initiatives.
The specific purposes and intent
of this ordinance are to:
[Ord. No. 2374-11, 706.2]
a.Â
Restore and maintain the chemical, physical,
and biological integrity of the water resources of the Township of
Millburn;
b.Â
Prevent excessive nutrients, sediment,
and organic matter, as well as biocides and other pollutants, from
reaching surface waters by optimizing opportunities for filtration,
deposition, absorption, adsorption, plant uptake, biodegradation,
and denitrification, which occur when stormwater runoff is conveyed
through vegetated buffers as stable, distributed flow prior to reaching
receiving waters;
c.Â
Provide for shading of the aquatic environment
so as to moderate temperatures, retain more dissolved oxygen, and
support a healthy assemblage of aquatic flora and fauna;
d.Â
Provide for the availability of natural
organic matter (leaves and twigs) and large woody debris (trees and
limbs) that provide food and habitat for aquatic organisms (insects,
amphibians, crustaceans, and small fish), which are essential to maintain
the food chain;
e.Â
Increase stream bank stability and maintain
natural fluvial geomorphology of the stream system, thereby reducing
stream bank erosion and sedimentation and protecting habitat for aquatic
organisms;
f.Â
Maintain base flows in streams and moisture
in wetlands;
g.Â
Control downstream flooding; and
h.Â
Conserve the natural features important
to land and water resources, e.g., headwater areas, ground water recharge
zones, floodways, floodplains, springs, streams, wetlands, woodlands,
and prime wildlife habitats.
706.2.Â
Statutory Authority. The Township
of Millburn is empowered to regulate land uses under the provisions
of the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.,
which authorizes each municipality to plan and regulate land use in
order to protect public health, safety and welfare by protecting and
maintaining native vegetation in riparian areas. The Township of Millburn
is also empowered to adopt and implement this ordinance under provisions
provided by the following legislative authorities of the State of
New Jersey:
[Ord. No. 2374-11, 706.3]
a.Â
Water Pollution Control Act, N.J.S.A. 58:10A-1
et seq.
b.Â
Water Quality Planning Act, N.J.S.A. 58:11A-1
et seq. and rules set forth at N.J.A.C. 7:15 et seq.
c.Â
Spill Compensation and Control Act, N.J.S.A.
58:10-23 et seq.
d.Â
Soil Erosion and Sediment Control Act,
N.J.S.A. 4:24 et seq.
e.Â
Flood Hazard Area Control Act, N.J.S.A.
58:16A-50 et seq. and rules set forth at N.J.A.C. 7:13 et seq.
f.Â
Stormwater Management Rules, N.J.A.C. 7:8
et seq.
706.3.Â
ACID PRODUCING SOILS
ADMINISTRATIVE AUTHORITY
APPLICANT
CATEGORY ONE WATERS OR C1 WATERS
CATEGORY TWO WATERS OR C2 WATERS
FLOODWAY
INTERMITTENT STREAM
LAKE, POND, OR RESERVOIR
PERENNIAL STREAM
RIPARIAN ZONE
RIPARIAN ZONE MANAGEMENT PLAN
SPECIAL WATER RESOURCE PROTECTION AREA OR SWRPA
SURFACE WATER BODY(IES)
THREATENED OR ENDANGERED SPECIES
TROUT MAINTENANCE WATER
TROUT PRODUCTION WATER
Definitions.
[Ord. No. 2374-11, 706.4]
Soils that contain geologic deposits of iron sulfide minerals
(pyrite and marcasite) which, when exposed to oxygen from the air
or from surface waters, oxidize to produce sulfuric acid. Acid producing
soils, upon excavation, generally have a pH of 4.0 or lower. After
exposure to oxygen, these soils generally have a pH of 3.0 or lower.
Information regarding the location of acid producing soils in New
Jersey can be obtained from local Soil Conservation District offices.
The Planning Board or Board of Adjustment or Construction
Office with all of the powers delegated, assigned, or assumed by them
according to statute or ordinance.
A person, corporation, government body or other legal entity
applying to the Planning Board, Board of Adjustment or the Construction
Office proposing to engage in an activity that is regulated by the
provisions of this ordinance, and that would be located in whole or
in part within a regulated Riparian Zone.
Shall have the meaning ascribed to this term by the Surface
Water Quality Standards, N.J.A.C. 7:9B, for purposes of implementing
the antidegradation policies set forth in those standards, for protection
from measurable changes in water quality characteristics because of
their clarity, color, scenic setting, and other characteristics of
aesthetic value, exceptional ecological significance, exceptional
recreational significance, exceptional water supply significance,
or exceptional fisheries resources.
Those waters not designated as Outstanding Natural Resource
waters or Category One waters in the Surface Water Quality Standards,
N.J.A.C. 7:9B, for purposes of implementing the antidegradation policies
set forth in those standards.
Shall have the meaning ascribed to this term by the Flood
Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq., and regulations
promulgated thereunder published at N.J.A.C. 7:13 et seq., and Section
702.
A surface water body with definite bed and banks in which
there is not a permanent flow of water and shown on the New Jersey
Department of Environmental Protection Geographic Information System
(GIS) hydrography coverages or, in the case of a Special Water Resource
Protection Area (SWRPA) pursuant to the Stormwater Management rules
at N.J.A.C. 7:8-5.5(h), C1 waters as shown on the USGS quadrangle
map or in the County Soil Surveys.
Any surface water body shown on the New Jersey Department
of Environmental Protection Geographic Information System (GIS) hydrography
coverages or, in the case of a Special Water Resource Protection Area
(SWRPA) pursuant to the Stormwater Management rules at N.J.A.C. 7:8-5.5(h),
C1 waters as shown on the USGS quadrangle map or in the County Soil
Surveys; that is an impoundment, whether naturally occurring or created
in whole or in part by the building of structures for the retention
of surface water. This excludes sedimentation control and stormwater
retention/detention basins and ponds designed for treatment of wastewater.
A surface water body that flows continuously throughout the
year in most years and shown on the New Jersey Department of Environmental
Protection Geographic Information System (GIS) hydrography coverages
or, in the case of a Special Water Resource Protection Area (SWRPA)
pursuant to the Stormwater Management rules at N.J.A.C. 7:8-5.5(h),
C1 waters as shown on the USGS quadrangle map or in the County Soil
Surveys.
The land and vegetation within and directly adjacent to all
surface water bodies including, but not limited to lakes, ponds, reservoirs,
perennial and intermittent streams, up to and including their point
of origin, such as seeps and springs, as shown on the New Jersey Department
of Environmental Protection's GIS hydrography coverages or, in the
case of a Special Water Resource Protection Area (SWRPA) pursuant
to the Stormwater Management rules at N.J.A.C. 7:8-5.5(h), C1 waters
as shown on the USGS quadrangle map or in the County Soil Surveys.
There is no riparian zone along the Atlantic Ocean nor along any man-made
lagoon or oceanfront barrier island, spit or peninsula.
A plan approved by the Engineer of the Township of Millburn.
The plan shall be prepared by a landscape architect, professional
engineer or other qualified professional, and shall evaluate the effects
of any proposed activity/uses on any Riparian Zone. The plan shall
identify existing conditions, all proposed activities, and all proposed
management techniques, including any measures necessary to offset
disturbances to any affected riparian zone.
A 300-foot area provided on each side of a surface water
body designated as a C1 water or tributary to a C1 water that is a
perennial stream, intermittent stream, lake, pond, or reservoir, as
defined herein and shown on the USGS quadrangle map or in the County
Soil Surveys within the associated HUC 14 drainage, pursuant to the
Stormwater Management rules at N.J.A.C. 7:8-5.5(h).
Any perennial stream, intermittent stream, lake, pond, or
reservoir, as defined herein. In addition, any regulated water under
the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-2.2, or State
open waters identified in a Letter of Interpretation issued under
the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A-3 by
the New Jersey Department of Environmental Protection Division of
Land Use Regulation shall also be considered surface water bodies.
A species identified pursuant to the Endangered and Nongame
Species Conservation Act, N.J.S.A. 23:2A-1 et seq., the Endangered
Species Act of 1973, 16 U.S.C. § 1531 et seq. or the Endangered
Plant Species List, N.J.A.C. 7:5C-5.1, and any subsequent amendments
thereto.
A section of water designated as trout maintenance in the
New Jersey Department of Environmental Protection's Surface Water
Quality Standards at N.J.A.C. 7:9B.
A section of water identified as trout production in the
New Jersey Department of Environmental Protection's Surface Water
Quality Standards at N.J.A.C. 7:9B.
706.4.Â
Establishment of Riparian Zones.
[Ord. No. 2374-11, 706.5]
a.Â
Riparian zones adjacent to all surface
water bodies shall be protected from avoidable disturbance and shall
be delineated as follows:
1.Â
The Riparian Zone shall be 300 feet
wide along both sides of any Category One water (C1 water), and all
upstream tributaries situated within the same HUC 14 watershed. This
includes Special Water Resource Protection Areas or SWRPAs as defined
herein and shown on the USGS quadrangle map or in the County Soil
Surveys within the associated HUC 14 drainage, pursuant to the Stormwater
Management rules at N.J.A.C. 7:8-5.5(h).
2.Â
The Riparian Zone shall be 150 feet
wide along both sides of the following waters not designated as C1
waters:
(a)Â
Any trout production water and all
upstream waters (including tributaries);
(b)Â
Any trout maintenance water and all
upstream waters (including tributaries) within one linear mile as
measured along the length of the surface water body;
(c)Â
Any segment of a water flowing through
an area that contains documented habitat for a threatened or endangered
species of plant or animal, which is critically dependent on the surface
water body for survival, and all upstream waters (including tributaries)
within one linear mile as measured along the length of the surface
water body; and
(d)Â
Any segment of a surface water body
flowing through an area that contains acid producing soils.
3.Â
For all other surface water bodies,
a Riparian Zone of 50 feet wide shall be maintained along both sides
of the water.
b.Â
The portion of the riparian zone that lies
outside of a surface water body is measured landward from the top
of bank. If a discernible bank is not present along a surface water
body, the portion of the riparian zone outside the surface water body
is measured landward as follows:
1.Â
Along a linear fluvial or tidal water,
such as a stream or swale, the Riparian Zone is measured landward
of the feature's center line;
2.Â
Along a non-linear fluvial water,
such as a lake or pond, the Riparian Zone is measured landward of
the normal water surface limit;
3.Â
Along a non-linear tidal water, such
as a bay or inlet, the Riparian Zone is measured landward of the mean
high water line; and
4.Â
Along an amorphously-shaped feature
such as a wetland complex, through which water flows but which lacks
a definable channel, the Riparian Zone is measured landward of the
feature's center line.
Where slopes (in excess of 15%) are
located within the designated widths, the Riparian Zone shall be extended
to include the entire distance of this sloped area to a maximum of
300 feet.
For areas adjacent to surface water
bodies for which the floodway has been delineated per the Flood Hazard
Area Control Act rules at N.J.A.C. 7:13-3 or the State's adopted floodway
delineations, the Riparian Zone shall cover the entire floodway area,
or the area described above, whichever area has the greatest extent.
Requests for alterations to the adopted delineations can be provided
to the New Jersey Department of Environmental Protection for consideration
if site specific information is available.
c.Â
A riparian zone is an overlay to the existing
zoning districts. The provisions of the underlying district shall
remain in full force except where the provisions of the Riparian Zone
differ from the provisions of the underlying district, in which case
the provision that is more restrictive shall apply. These provisions
apply to land disturbances resulting from or related to any activity
or use requiring application for any of the following permits or approvals:
• Building permit
• Zoning variance
• Special exception
• Conditional use
• Subdivision/land development
approval
d.Â
A map of the riparian zones of the entire
municipality of the Township of Millburn, including all land and water
areas within its boundaries, which designates surface water bodies,
is included as part of this ordinance, and is appended as Figure 1.[1]
Maps of the municipality on which
these designations have been overlain shall be on file and maintained
by the offices of the Clerk of the Township of Millburn. This map
conforms to all applicable laws, rules and regulations applicable
to the creation, modification and promulgation of zoning maps.
[1]
Editor's Note: The Riparian Zone Map may be
found at the end of Section 706.
e.Â
It shall be the duty of the Engineer of
the Township of Millburn, every second year after the adoption of
this ordinance, to propose modifications to the map delineating riparian
zones required by any naturally occurring or permitted change in the
location of a defining feature of a surface water body occurring after
the initial adoption of the Riparian Zone Map, to record all modifications
to the Riparian Zone Map required by decisions or appeals under Section
706.10, and by changes made by the New Jersey Department of Environmental
Protection in surface water classifications or floodway delineations.
f.Â
The applicant or designated representative
shall be responsible for the initial determination of the presence
of a Riparian Zone on a site, and for identifying the area on any
plan submitted to the Township of Millburn in conjunction with an
application for a construction permit, subdivision, land development,
or other improvement that requires plan submissions or permits. This
initial determination shall be subject to review and approval by the
Municipal Engineer, Board of Adjustment, or its appointed representative,
and, where required, by the New Jersey Department of Environmental
Protection.
g.Â
The municipal Master Plan provides the
legal basis for zoning and land use regulation at the local level.
h.Â
Exemptions. Instead of the riparian zone
protection requirements above, the applicant must demonstrate compliance
with one of the following:
1.Â
The proposed project or activity
is not in the riparian zone.
2.Â
The proposed disturbance in a Riparian
Zone is for a linear development with no feasible alternative route.
If the Riparian Zone is associated with Category One waters, the linear
development must also meet the requirements for Special Water Resource
Protection Areas under the Stormwater Management rules at N.J.A.C.
7:8-5.5(h);
3.Â
The proposed disturbance in a Riparian
Zone is in accordance with a stream corridor restoration or stream
bank stabilization plan or project approved by the New Jersey Department
of Environmental Protection;
4.Â
The proposed disturbance of a Riparian
Zone is necessary to provide for public pedestrian access or water
dependent recreation that meets the requirements of the Freshwater
Wetlands Protection Act rules, N.J.A.C. 7:7A, the Flood Hazard Area
Control Act rules, N.J.A.C. 7:13, or the Coastal Zone Management rules,
N.J.A.C. 7:7E;
5.Â
The proposed disturbance of a Riparian
Zone is required for the remediation of hazardous substances performed
with New Jersey Department of Environmental Protection or Federal
oversight pursuant to the Spill Compensation and Control Act, N.J.S.A.
58:10-23.11a et seq. or the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et
seq.;
6.Â
The proposed disturbance is for redevelopment
that does not exceed the limits of existing impervious surfaces;
7.Â
The proposed disturbance would prevent
extraordinary hardship on the property owner peculiar to the property;
or prevent extraordinary hardship, provided the hardship was not created
by the property owner, that would not permit a minimum economically
viable use of the property based upon reasonable investment; and/or
8.Â
Demonstrate through site plans depicting
proposed development and topography that new disturbance is not located
in areas with a 20% or greater slope, except as allowed under h6 and
h7 above.
706.5.Â
Uses Permitted in Riparian Zones.
[Ord. No. 2374-11, 706.6]
a.Â
For Riparian Zones in Category One waters
(C1 waters), permitted uses are governed by the Stormwater Management
rules at N.J.A.C. 7:8-5.5(h) and the Flood Hazard Area Control Act
rules, N.J.A.C. 7:13, unless otherwise exempt.
b.Â
Any other Riparian Zone area shall remain
in a natural condition or, if in a disturbed condition, including
agricultural activities, at the time of adoption of this ordinance
may be restored to a natural condition. There shall be no clearing
or cutting of trees and brush, except for removal of dead vegetation
and pruning for reasons of public safety or for the replacement of
invasive species with indigenous species. There shall be no altering
of watercourses, dumping of trash, soil, dirt, fill, vegetative or
other debris, regrading or construction. The following uses are permitted
either by right or after review and approval by the municipality in
Riparian Zones. No new construction, development, use, activity, encroachment,
or structure shall take place in a Riparian Zone, except as specifically
authorized in this Section. The following uses shall be permitted
within a Riparian Zone:
1.Â
Open space uses that are primarily
passive in character shall be permitted by right to extend into a
Riparian Zone, provided near stream vegetation is preserved. These
uses do not require approval by the Zoning Enforcement Officer or
compliance with an approved Riparian Zone Management Plan. Such uses
include wildlife sanctuaries, nature preserves, forest preserves,
fishing areas, game farms, fish hatcheries and fishing reserves, operated
for the protection and propagation of wildlife, but excluding structures.
Such uses also include passive recreation areas of public and private
parklands, including unpaved hiking, bicycle and bridle trails, provided
that said trail have been stabilized with pervious materials.
2.Â
Fences, for which a permit has been
issued by the Construction Code Office, to the extent required by
applicable law, rule or regulation.
3.Â
Crossings by farm vehicles and livestock,
recreational trails, roads, railroads, stormwater lines, sanitary
sewer lines, water lines and public utility transmission lines, provided
that the land disturbance is the minimum required to accomplish the
permitted use, subject to approval by the Zoning Enforcement Officer,
provided that any applicable State permits are acquired, and provided
that any disturbance is offset by buffer improvements in compliance
with an approved Riparian Zone Management Plan and that the area of
the crossing is stabilized against significant erosion due to its
use as a crossing.
4.Â
Stream bank stabilization or riparian
reforestation, which conform to the guidelines of an approved Riparian
Zone Management Plan, or wetlands mitigation projects that have been
approved by the New Jersey Department of Environmental Protection,
subject to approval by the Zoning Enforcement Officer and subject
to compliance with an approved Riparian Zone Management Plan.
706.6.Â
Performance Standards for Riparian
Zones.
[Ord. No. 2374-11, 706.7]
a.Â
All encroachments proposed into Riparian
Zones in C1 waters shall comply with the requirements of the Stormwater
Management rule at N.J.A.C. 7:8-5.5(h) and the Flood Hazard Area Control
Act rules, N.J.A.C. 7:13, and shall be subject to review and approval
by the New Jersey Department of Environmental Protection, unless exempt.
b.Â
For all other Riparian Zones, the following
conditions shall apply:
1.Â
All new major and minor subdivisions
and site plans shall be designed to provide sufficient areas outside
of the Riparian Zone to accommodate primary structures, any normal
accessory uses appurtenant thereto, as well as all planned lawn areas.
2.Â
Portions of lots within the Riparian
Zone must be permanently restricted by deed or conservation easement
held by the Township of Millburn, its agent, or another public or
private land conservation organization which has the ability to provide
adequate protection to prevent adverse impacts within the Riparian
Zone. A complete copy of the recorded conservation restriction that
clearly identifies the deed book and pages where it has been recorded
in the office of the clerk of the applicable county or the registrar
of deeds and mortgages of the applicable county must be submitted
to the municipality. The applicant shall not commence with the project
or activity prior to making this submittal and receiving actual approval
of the plan modification and receipt of any applicable permits from
the New Jersey Department of Environmental Protection. The recorded
conservation restriction shall be in the form approved by the municipality
and shall run with the land and be binding upon the property owner
and the successors in interest in the property or in any part thereof.
The conservation restriction may include language reserving the right
to make de minimus changes to accommodate necessary regulatory approvals
upon the written consent of the municipality, provided such changes
are otherwise consistent with the purpose and intent of the conservation
restriction. The recorded conservation restriction shall, at a minimum,
include:
(a)Â
A written narrative of the authorized
regulated activity, date of issuance, and date of expiration, and
the conservation restriction that, in addition, includes all of the
prohibitions set forth at N.J.S.A. 13:8B-2b(1) through (7);
(b)Â
Survey plans for the property as
a whole and, where applicable, for any additional properties subject
to the conservation restrictions. Such survey plans shall be submitted
on the surveyor's letterhead, signed and sealed by the surveyor, and
shall include metes and bounds descriptions of the property, the site,
and the areas subject to the conservation restriction in New Jersey
State Plane Coordinates, North American Datum 1983, and shall depict
the boundaries of the site and all areas subject to the conservation
restriction as marked with flags or stakes on site. All such survey
plans shall be submitted on paper and in digital CAD or GIS file on
a media and format defined by the municipality. The flags or stakes
shall be numbered and identified on the survey plan; and
(c)Â
A copy or copies of deeds for the
property as a whole that indicate the deed book and pages where it
has been recorded in the office of the clerk of the applicable county
or the registrar of deeds and mortgages of the applicable county.
3.Â
Any lands proposed for development
which include all or a portion of a Riparian Zone shall as a condition
of any major subdivision or major site plan approval, provide for
the vegetation or revegetation of any portions of the Riparian Zone
which are not vegetated at the time of the application or which were
disturbed by prior land uses, including for agricultural use. Said
vegetation plan shall utilize native and non-invasive tree and plant
species to the maximum extent practicable in accordance with an approved
Riparian Zone Management Plan, described in Section 706.9.
4.Â
For building lots which exist as
of the date of adoption of this ordinance (adopted May 3, 2011 by
Ord. No. 2374-11), but for which a building permit or a preliminary
site plan approval has not been obtained or is no longer valid, the
required minimum front, side, and rear setbacks may extend into the
Riparian Zone, provided that a deed restriction and/or conservation
easement is applied which prohibits clearing or construction in the
Riparian Zone.
5.Â
All stormwater shall be discharged
outside of but may flow through a Riparian Zone and shall comply with
the Standard For Off-Site Stability in the "Standards for Soil Erosion
and Sediment Control in New Jersey," established under the Soil Erosion
and Sediment Control Act, N.J.S.A. 4:24-39 et seq. (see N.J.A.C. 2:90-1.3.).
6.Â
If stormwater discharged outside
of and flowing through a Riparian Zone cannot comply with the Standard
for Off-Site Stability cited in paragraph 5, above, then the proposed
stabilization measures must meet the requirements of the Flood Hazard
Area Control Act rules at N.J.A.C. 7:13-10.2 et seq., and have an
approved flood hazard area permit.
706.7.Â
Nonconforming Structures and Uses
in Riparian Zones. Nonconforming structures and uses of land within
the riparian zone are subject to the following requirements:
[Ord. No. 2374-11, 706.8]
a.Â
Legally existing but nonconforming structures
or uses may be continued.
b.Â
Any proposed enlargement or expansion of
the building footprint within the Riparian Zone of a C1 water shall
comply with the standards in the Stormwater Management rules at N.J.A.C.
7:8-5.5(h) and the Flood Hazard Area Control Act rules, N.J.A.C. 7:13.
c.Â
For all other Riparian Zones:
1.Â
Encroachment within the Riparian
Zone shall only be allowed where previous development or disturbance
has occurred and shall be in conformance with the Stormwater Management
rules, N.J.A.C. 7:8, and the Flood Hazard Area Control Act rules,
N.J.A.C. 7:13.
2.Â
Existing impervious cover shall not
be increased within the Riparian Zone as a result of encroachments
where previous development or disturbances have occurred.
3.Â
Discontinued nonconforming uses may
be resumed any time within one year from such discontinuance but not
thereafter when showing clear indications of abandonment. No change
or resumption shall be permitted that is more detrimental to the Riparian
Zone, as measured against the intent and purpose under Section 706.1,
than the existing or former nonconforming use. This one-year time
frame shall not apply to agricultural uses that are following prescribed
Best Management Practices for crop rotation. However, resumption of
agricultural uses must be strictly confined to the extent of disturbance
existing at the time of adoption of this ordinance (May 3, 2011).
706.8.Â
Uses Prohibited in Riparian Zones.
[Ord. No. 2374-11, 706.9]
a.Â
Any use within a Riparian Zone of a C1
water shall comply with the standards in the Stormwater Management
rules at N.J.A.C. 7:8-5.5(h) and the Flood Hazard Area Control Act
rules, N.J.A.C. 7:13.
b.Â
For other Riparian Zones, any use or activity
not specifically authorized in Section 706.5 or Section 706.7 shall
be prohibited within the Riparian Zone. By way of example, the following
activities and facilities are prohibited:
1.Â
Removal or clear-cutting of trees
and other vegetation or soil disturbance such as grading, except for
selective vegetation removal for the purpose of stream or riparian
area stabilization or restoration projects that require vegetation
removal or grading prior to implementation.
2.Â
Storage of any hazardous or noxious
materials.
3.Â
Use of fertilizers, pesticides, herbicides,
and/or other chemicals in excess of prescribed industry standards
or the recommendations of the Soil Conservation District.
4.Â
Roads or driveways, except where
permitted in compliance with Section 706.5.
5.Â
Motor or wheeled vehicle traffic
in any area, except as permitted by this ordinance.
6.Â
Parking lots.
7.Â
Any type of permanent structure,
except structures needed for a use permitted by Section 706.5.
8.Â
New subsurface sewage disposal system
areas. The expansion and replacement of existing subsurface sewage
disposal system areas for existing uses is permitted.
9.Â
Residential grounds or lawns, except
as otherwise permitted pursuant to this ordinance.
706.9.Â
Activities Permitted in Riparian
Zones in the Case of No Reasonable or Prudent Alternative or Extreme
Hardship.
[Ord. No. 2374-11, 706.10]
a.Â
For Riparian Zones in C1 waters, requests
for exemptions must be authorized by the New Jersey Department of
Environmental Protection, as per the Stormwater Management rules at
N.J.A.C. 7:8-5.5(h) and the Flood Hazard Area Control Act rules, N.J.A.C.
7:13.
b.Â
For other Riparian Zones, hardship variances
may be granted by the Zoning Board of Adjustment in cases of a preexisting
lot (existing at the time of adoption of this ordinance) when there
is insufficient room outside the Riparian Zone for uses permitted
by the underlying zoning and there is no other reasonable or prudent
alternative to placement in the Riparian Zone, including obtaining
variances from setback or other requirements that would allow conformance
with the Riparian Zone requirements, and provided the following demonstrations
are made:
1.Â
An applicant shall be deemed to have
established the existence of an extreme economic hardship, if the
subject property is not capable of yielding a reasonable economic
return if its present use is continued or if it is developed in accordance
with provisions of this ordinance and that this inability to yield
a reasonable economic return results from unique circumstances peculiar
to the subject property which:
(a)Â
Do not apply to or affect other property
in the immediate vicinity;
(b)Â
Relate to or arise out of the characteristics
of the subject property because of the particular physical surroundings,
shape or topographical conditions of the property involved, rather
than the personal situations of the applicant; and are not the result
of any action or inaction by the applicant or the owner or his predecessors
in title.
(c)Â
The necessity of acquiring additional
land to locate development outside the riparian zone shall not be
considered an economic hardship unless the applicant can demonstrate
that there is no adjacent land that is reasonably available or could
be obtained, utilized, expanded or managed in order to fulfill the
basic purpose of the proposed activity.
2.Â
An applicant shall be deemed to have
established compelling public need if the applicant demonstrates,
based on specific facts that one of the following applies:
3.Â
A variance can only be granted if
it is shown that the activity is in conformance with all applicable
local, State, and Federal regulations, including but not limited to
the Stormwater Management rules, N.J.A.C. 7:8, and the Flood Hazard
Area Control Act rules, N.J.A.C. 7:13, and that the exception granted
is the minimum relief necessary to relieve the hardship.
c.Â
If such an exception is granted, the applicant
shall rehabilitate an environmentally degraded Riparian Zone area
within or adjacent to the same site, and at least equivalent in size
to the Riparian Zone reduction permitted, or, if not possible, rehabilitate
or expand a Riparian Zone area at least equivalent in size within
a nearby site and, if available, within the same watershed. Rehabilitation
shall include reforestation, stream bank stabilization and removal
of debris, in accordance with a Riparian Zone Management Plan, as
described in Section 706.10 below. In lieu of such rehabilitation,
the Township of Millburn may accept a financial contribution in the
amount of 125% of the cost of rehabilitation, payment of which shall
be made to the Township of Millburn Open Space Fund.
706.10.Â
Riparian Zone Management Plan.
[Ord. No. 2374-11, 706.11]
a.Â
Within any Riparian Zone, no construction,
development, use, activity, or encroachment shall be permitted unless
the effects of such development are accompanied by preparation, approval,
and implementation of a Riparian Zone Management Plan.
b.Â
The landowner, applicant, or developer
shall submit to the Zoning Officer, or its appointed representative,
a Riparian Zone Management Plan prepared by an environmental professional,
professional engineer or other qualified professional which fully
evaluates the effects of any proposed uses on the Riparian Zone. The
Riparian Zone Management Plan shall identify the existing conditions
including:
1.Â
Existing vegetation;
2.Â
Field delineated surface water bodies;
3.Â
Field delineated wetlands;
4.Â
The 100-year floodplain;
5.Â
Flood Hazard Areas, including floodway
and flood fringe areas, as delineated by the New Jersey Department
of Environmental Protection;
6.Â
Soil classifications as found on
Soil Surveys;
7.Â
Existing subdrainage areas of site
with HUC (Hydrologic Unit Code) 14 designations;
8.Â
Slopes in each subdrainage area segmented
into sections of slopes less than 15%; above 15% but less than 20%;
and steep slopes greater than 20%. The proposed plan shall describe
all proposed uses/activities, and fully evaluate the effects of all
proposed uses/activities in a riparian zone, and all proposed management
techniques, including proposed vegetation and any other measures necessary
to offset disturbances to the Riparian Zone. A discussion of activities
proposed as well as management techniques proposed to offset disturbances
and/or enhance the site to improve the Riparian Zone's ability to
function effectively as a Riparian Zone shall also be included with
the Riparian Zone Management Plan submittal to the Township of Millburn.
c.Â
The Plan shall be reviewed and must be
approved by the Engineer of the Township of Millburn, in consultation
with the Environmental Commission, as part of the subdivision and
land development process.
d.Â
The Riparian Zone Management Plan must
include management provisions in narrative and/or graphic form specifying:
1.Â
The manner in which the area within
the Riparian Zone will be owned and by whom it will be managed and
maintained.
2.Â
The conservation and/or land management
techniques and practices that will be used to conserve and protect
the Riparian Zone, as applicable.
3.Â
The professional and personnel resources
that are expected to be necessary, in order to maintain and manage
the Riparian Zone.
4.Â
A revegetation plan, if applicable,
that includes: three layers of vegetation, including herbaceous plants
that serve as ground cover, understory shrubs, and trees that when
fully mature, will form an overhead canopy. Vegetation selected must
be native, non-invasive species, and consistent with the soil, slope
and moisture conditions of the site. The revegetation plan shall be
prepared by a qualified environmental professional, landscape architect,
or professional engineer, and shall be subject to the approval of
the Engineer of the Township of Millburn, in consultation with the
Environmental Commission. Dominant vegetation in the Riparian Zone
Management Plan shall consist of plant species that are suited to
the Riparian Zone environment. The Engineer of the Township of Millburn
may require species suitability to be verified by qualified experts
from the Soil Conservation District, Natural Resources Conservation
Service, New Jersey Department of Environmental Protection, US Fish
and Wildlife Service and/or State or Federal forest agencies.
e.Â
A Riparian Zone Management Plan is not
required where the Riparian Zone is not being disturbed and conservation
easements/deed restrictions are applied to ensure there will be no
future clearing or disturbance of the Riparian Zone.
f.Â
Performance of the Riparian Zone Management
Plan shall be guaranteed for two years by a surety as approved by
the Township Attorney, such as a bond, cash or irrevocable letter
of credit, which shall be provided to the Township of Millburn prior
to the Township of Millburn issuing any permits or approving any uses
relating to the applicable use or activity.
706.11.Â
Boundary Interpretation, Appeals
Procedures, Inspections, Conflicts, Severability.
[Ord. No. 2374-11, 706.12]
a.Â
When a landowner or applicant disputes
the boundaries of a Riparian Zone, or the defined bank-full flow or
level, the landowner or applicant shall submit evidence to the Zoning
Officer that describes the Riparian Zone, presents the landowner or
applicant's proposed Riparian Zone delineation, and presents all justification
for the proposed boundary change, including but not limited to, a
verification issued under the Flood Hazard Area Control Act rules
at N.J.A.C. 7:13-6, or an approval from the New Jersey Department
of Environmental Protection to encroach within the Special Water Resource
Protection Area (SWRPA) of a C1 water pursuant to the Stormwater Management
rules at N.J.A.C. 7:8-5.5(h)1ii.
b.Â
Within 45 days of a complete submission of Section 706.11a above,
the Engineer of the Township of Millburn, or appointed representative,
shall evaluate all material submitted and shall make a written determination,
a copy of which shall be submitted to the Zoning Officer and the landowner
or applicant. Failure to act within the forty-five-day period shall
not be interpreted to be an approval of the proposed boundary change.
c.Â
Any party aggrieved by any such determination
or other decision or determination under Section 706.11b may appeal
to the Board of Adjustment under the provisions of this ordinance.
The party contesting the location
of the Riparian Zone boundary shall have the burden of proof in case
of any such appeal.
d.Â
Any party aggrieved by any determination
or decision of the Board of Adjustment under this ordinance may appeal
to the Superior Court of the State of New Jersey. The party contesting
the determination or decision shall have the burden of proof in case
of any such appeal.
e.Â
Inspections.
1.Â
Lands within or adjacent to an identified
Riparian Zone shall be inspected by Township Engineer or his/her designee
when:
2.Â
The Riparian Zone may also be inspected
periodically by representatives from the Township of Millburn if excessive
or potentially problematic erosion is present, other problems are
discovered, or at any time when the presence of an unauthorized activity
or structure is brought to the attention of municipal officials or
when the downstream surface waters are indicating reduction in quality.
f.Â
Conflicts. All other ordinances, parts
of ordinances, or other local requirements that are inconsistent or
in conflict with this ordinance are hereby superseded to the extent
of any inconsistency or conflict, and the provisions of this ordinance
apply.
g.Â
Severability.
1.Â
Interpretation: This ordinance shall
be so construed as not to conflict with any provision of New Jersey
or Federal law.
2.Â
Notwithstanding that any provision
of this ordinance is held to be invalid or unconstitutional by a court
of competent jurisdiction, all remaining provisions of the ordinance
shall continue to be of full force and effect.
3.Â
The provisions of this ordinance
shall be cumulative with, and not in substitution for, all other applicable
zoning, planning and land use regulations.
706.12.Â
Enforcement. A prompt investigation
shall be made by the appropriate personnel of the Township of Millburn,
of any person or entity believed to be in violation hereof. If, upon
inspection, a condition which is in violation of this ordinance is
discovered, a civil action in the Special Part of the Superior Court,
or in the Superior Court, if the primary relief sought is injunctive
or if penalties may exceed the jurisdictional limit of the Special
Civil Part, by the filing and serving of appropriate process. Any
person who violates this ordinance or fails to comply with any requirements
shall upon conviction be fined not more than $2000 or imprisoned for
not more than 30 days, or both, for each violation, and in addition
shall pay all costs and expenses involved in the case. Nothing herein
shall prevent the Township of Millburn from taking such other lawful
action as is necessary to prevent or remedy any violation.
Nothing in this ordinance shall be
construed to preclude the right of the Township of Millburn, pursuant
to N.J.S.A. 26:3A2-25, to initiate legal proceedings hereunder in
Municipal Court. The violation of any Section or Subsection of this
ordinance shall constitute a separate and distinct offense independent
of the violation of any other Section or Subsection, or of any order
issued pursuant to this ordinance. Each day a violation continues
shall be considered a separate offense.
[Ord. No. 2374-11, 706.13]
706.13.Â
Effective Date. This ordinance shall
take effect upon final passage and publication in accordance with
the law.
[Ord. No. 2374-11, 706.13]
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