Section 30 of the Highlands Act identifies as exempt specific activities, improvements and development projects affecting lands within the Highlands Region. Such activities, improvements and projects may be proposed as a component of any type of land use application submitted to the municipality for approval, including but not limited to zoning permit applications, building permit applications, and applications for development (as defined at §
246-8). Any such qualifying activity, improvement or development project is exempt, with regard specifically to that activity, improvement or development project, from the requirements of the Highlands Act, the Highlands RMP, the NJDEP Preservation Area Rules, and any amendments to the Township's Master Plan, development regulations, or other regulations adopted pursuant to the approval of Township's Petition for Plan Conformance by the Highlands Council. Such an exemption specifically applies to any Highlands Area land use ordinance adopted by the Township pursuant to the Highlands Council's approval of Township's Petition for Plan Conformance. Evidence that a proposed activity, improvement or development project qualifies as a Highlands Act Exemption may be sought in the form of either a state agency exemption determination or a municipal exemption determination as provided at §§
246-13 and
246-14 below, respectively.
State agency exemption determinations shall consist of a Highlands applicability determination issued by the NJDEP. State agency determinations may be requested with regard to any Highlands Act exemption, however, for applications involving any exemption not identified at §
246-15 below, a state agency exemption determination is required. Any applicant seeking a formal exemption determination for a capital or other project of any state entity or local government unit, or for any other publicly owned or controlled land or facility, also must request a state agency exemption determination.
For an application involving any of the specific exemptions listed in §
246-15 below, the applicant may request a municipal exemption determination. The applicant may rely upon the findings of a municipal exemption determination to the same extent as would apply to an exemption determination issued by the NJDEP.
Effective as of the date on which the municipality receives
written authorization from the Highlands Council to proceed, an applicant
may seek a municipal exemption determination for the Highlands Act
Exemptions listed hereunder.
A. Exemption 1. The construction
of a single-family dwelling, for an individual's own use or the use
of an immediate family member, on a lot owned by the individual on
the date of enactment of the Highlands Act (August 10, 2004) or on
a lot for which the individual entered into a binding contract of
sale to purchase on or before May 17, 2004.
B. Exemption 2. The construction
of a single-family dwelling on a lot in existence on the date of enactment
of the Highlands Act (August 10, 2004), provided that the construction
does not result in the ultimate disturbance of one acre or more of
land or a cumulative increase in impervious surface by 1/4 acre or
more.
(1) A municipal exemption determination indicating that an applicant qualifies under Highlands Act Exemption 2 shall require approval and filing of a deed notice, along with a site plan delineating the total exempt area and the extent of the disturbance recognized in the municipal exemption determination. (See §§
246-19 through
246-24 below). Municipal exemption determinations in such instances shall not take effect until the applicant has provided proof of filing of the approved deed notice.
C. Exemption 4. The reconstruction
of any building or structure for any reason within 125% of the footprint
of the lawfully existing impervious surfaces on the site, provided
that the reconstruction does not increase the lawfully existing impervious
surface by 1/4 acre or more. This exemption shall not apply to the
reconstruction of any agricultural or horticultural building or structure
for a nonagricultural or nonhorticultural use.
(1) For purposes of this chapter,
this exemption shall not be construed to permit multiple footprint
expansions of 125%, but rather to permit one or more reconstruction
activities cumulatively resulting in a maximum increase of 125% in
the footprint of the impervious surfaces lawfully existing on the
site, provided they do not cumulatively exceed the one-quarter-acre
limitation. Any determination of whether the expansion of impervious
cover meets the statutory criteria for the exemption must account
for the preexisting impervious cover, and such expansion must be contiguous
to the location of the existing impervious cover. See In re August
16, 2007, Determination of NJDEP ex rel. Christ Church, 414 N.J. Super.
592 (App. Div. 2010), certif. denied, 205 N.J. 16 (2010).
(2) The applicable date of lawful
existence shall be August 10, 2004, the date of enactment of the Highlands
Act.
D. Exemption 5. Any improvement
to a single-family dwelling in existence on the date of enactment
of the Highlands Act (August 10, 2004), including but not limited
to an addition, garage, shed, driveway, porch, deck, patio, swimming
pool or septic system.
E. Exemption 6. Any improvement,
for nonresidential purposes, to a place of worship owned by a nonprofit
entity, society or association, or association organized primarily
for religious purposes, or a public or private school, or a hospital,
in existence on the date of enactment of the Highlands Act (August
10, 2004), including but not limited to new structures, an addition
to an existing building or structure, a site improvement, or a sanitary
facility.
F. Exemption 7. An activity conducted
in accordance with an approved woodland management plan pursuant to
Section 3 of the Farmland Assessment Act, P.L. 1964, c. 48 (N.J.S.A.
54:4-23.3) or a forest stewardship plan approved pursuant to section
3 of P.L. 2009, c. 256 (the State Park and Forestry Resources Act,
N.J.S.A. 13:1L-31), or the normal harvesting of forest products in
accordance with a forest management plan or forest stewardship plan
approved by the State Forester.
G. Exemption 8. The construction
or extension of trails with nonimpervious surfaces on publicly owned
lands or on privately owned lands where a conservation or recreational
use easement has been established.
Municipal exemption determinations regarding Highlands Act exemptions
shall be issued by the Township Engineer or Land Use Board Engineer.
The exemption designee(s) shall be authorized to issue municipal exemption
determinations on behalf of the municipality, and shall only begin
to do so after satisfactory completion of a Highlands Council training
class for which the individual(s) has/have received formal certification
from the Highlands Council.
In the event of programmatic changes, updated information, or
modifications to procedures, updated training certification may be
required of exemption designees in order to maintain qualifications
for providing municipal exemption determinations. The Highlands Council
will provide training modules on an as-needed basis, to provide base
training to new employees, and/or to further the expertise of already-certified
individuals. Exemption designees and the municipalities they serve
will be advised of any need for upgraded training, which will be provided
and funded by the Highlands Council.
For the duration of any period during which the municipality is without a qualified exemption designee(s) due to changes in personnel or other extenuating circumstances, applicants seeking Highlands Act exemption determinations shall be referred to the NJDEP for a state agency determination pursuant to §
246-12 above.
Requests for municipal exemption determination shall be submitted on forms provided by the Land Use Board Administrator and shall be accompanied by sufficient information and documentary evidence to demonstrate whether the proposed activity, improvement or development project qualifies for the applicable exemption. Required submission materials applicable to each exemption appear at §
246-27 below.
The exemption designee shall review the application and all
accompanying materials to determine whether sufficient information
has been submitted to make a determination on the application. In
the event of a finding that the application is incomplete, the exemption
designee shall, within 45 calendar days of receipt, issue such findings,
in writing, to the applicant, indicating what information is required
to properly consider the application.
The exemption designee shall issue municipal exemption determinations
within 45 calendar days of receipt of a complete application. The
exemption designee may consult with the NJDEP or the Executive Director
(or applicable designee) of the Highlands Council as needed in making
any exemption determination, however. In such circumstance, the exemption
designee shall seek such assistance within the forty-five-day period
and shall issue the determination within at least 10 calendar days
of receiving the requested guidance. In no case shall failure to meet
this date constitute approval of the exemption.
All municipal exemption determinations shall be provided in writing, shall certify to the applicability or inapplicability of the exemption, and shall include a statement of the rationale for the decision. Any municipal exemption determination certifying to the applicability of Highlands Act Exemption No. 2 shall be contingent upon submission of proof of filing of the required deed notice, as set forth at §
246-23 below.
The exemption designee shall provide copies of all municipal
exemption determinations, including a copy of the full application,
to the Highlands Council and to the NJDEP within 10 business days
of issuance.
Any municipal exemption determination that certifies to the applicability of Highlands Act Exemption No. 2 (§
246-14 above), shall be issued conditionally, pending fulfillment of the requirement that a deed notice be recorded in the office of the County Clerk or Register, as applicable, indicating the extent of the exemption that has been consumed. The deed notice shall incorporate each of the components listed below and the applicant shall provide a copy of the filed deed notice to the Highlands Council within five business days of filing.
A. Clear identification of the name(s)
and address(es) of the owner(s) in fee of the property;
B. Designated tax block and lot
number(s), street address(es), municipality and county of location
of the property;
C. Reference to the municipal exemption
determination (by date, numbering if applicable) issued and under
which the deed notice is being filed;
D. Description of the approved area
of ultimate disturbance and the impervious surface area, with verification
that these remain below the statutory limits;
E. For properties of one acre or
more in area, metes and bounds delineation indicating the portion
of the property for which the ultimate disturbance has been authorized;
F. Agreement to abide by the ultimate
disturbance and impervious surface limits imposed, any furtherance
thereof rendering the municipal exemption determination null and void;
and
G. Notice that the owner(s) and
subsequent owner(s) and lessees shall cause all leases, grants, and
other written transfers of interest in the property to contain provisions
expressly requiring all holders thereof to take the property subject
to the limitations therein set forth.
A municipal exemption determination may be appealed by any affected
person/entity by filing a notice of appeal within 20 calendar days
of issuance or receipt of said determination, whichever is later,
specifying the grounds therefor. Appeals must be filed with the NJDEP.
All appeals shall be copied to the exemption designee, who shall immediately
transmit to the NJDEP copies of the notice of appeal, the municipal
exemption determination application, and all supplemental materials
constituting the record that the exemption designee relied upon in
issuing the municipal exemption determination. Where the municipal
exemption determination deems an activity, improvement or development
project exempt, the filing of an appeal to the NJDEP shall stay all
proceedings in furtherance of its approval by the municipality.
Issuance of a municipal exemption determination that certifies
to the applicability of a Highlands Act exemption shall recognize
the applicant's exemption from the provisions of the RMP, NJDEP Preservation
Area Rules, and any municipal ordinances and requirements adopted
under the authority of the Highlands Act to achieve Highlands Plan
conformance. The exemption is restricted solely to the extent of the
specified activity, improvement, or development project as described
in the language of the Highlands Act exemption, or to any lesser activity,
improvement, or development project as proposed and certified through
a municipal exemption determination application. Any activity, improvement,
or development project, or any part thereof, that is not specifically
listed as an exemption or exceeds the limits of an exemption, remains
subject to all of the above regulatory programs to the full extent
of the respective applicability of each. Issuance of a Highlands exemption
determination shall not relieve the applicant from securing all other
required federal, state, or local approvals.
There shall be an application fee of $25 in addition to the fees established in §§
376-14 and
425-41.
All applications shall be accompanied by the municipal exemption
determination application form, the applicable fees, and the information
listed below, as applicable to the particular exemption or exemption(s)
being sought by the applicant. All references to professional preparers
indicated herein shall be construed to include any and all qualified
individuals licensed, certified, or otherwise eligible and authorized
to complete such work, in accordance with the applicable laws and
legal requirements of the State of New Jersey, including but not limited
to the MLUL (N.J.S.A. 40:55D-1 et seq.) and Title 13 of the New Jersey
Administrative Code, Law and Public Safety. Where the exemption designee
finds that any submission item is not necessary to address the evidentiary
requirements that must be satisfied for issuance of an Exemption Determination,
either because alternate items have been provided by the applicant,
or the relevant information is readily available through records,
maps, or any other documents on file in the offices of the municipality,
the exemption designee may waive the applicant's obligation to submit
such information.
A. Exemption 1.
(1) A copy of a deed, closing
or settlement statement, title policy, tax record, mortgage statement
or any other official document showing that the lot was legally owned
by the applicant on or before August 10, 2004, and indicating the
lot and block as designated by the municipal tax mapping, the municipality
and county in which the lot is located, and the street address;
(2) If the applicant did not
own the lot, a copy of the binding contract of sale executed by the
seller and the applicant on or before May 17, 2004, for the lot on
which the house is to be constructed; and
(3) A certification by the applicant
stating that the single-family dwelling proposed for construction
on the lot specified and described therein by tax lot and block, municipality
and county of location, and street address, is intended for the applicant's
own use or the use of an immediate family member as identified therein
by name and relationship to the applicant.
B. Exemption 2.
(1) A copy of the recorded deed
or plat showing that the lot was created on or before August 10, 2004,
or proof of subdivision approval on or before August 10, 2004;
(2) A property survey certified
by a licensed New Jersey professional land surveyor indicating the
property boundary lines and overall lot size, and showing what structures
currently exist on the lot, if any;
(3) A parcel plan certified by
a licensed New Jersey professional engineer showing all existing and
proposed development, including all structures, grading, clearing,
impervious surface and disturbance, and including the calculations
supporting the claim that impervious surfaces and areas of disturbance
are within the limits necessary for Exemption 2; and
(4) A metes and bounds description of the area of the lot to be disturbed, limited to less than one acre and a draft conservation restriction or deed notice (pursuant to §
246-23 above) to cover the balance of the lot.
C. Exemption 4.
(1) A parcel plan certified by
a licensed New Jersey professional engineer depicting:
(a) All existing property
improvements, including all structures, grading, clearing, impervious
surfaces and limits of disturbance, lawfully existing on the site
as of August 10, 2004; and
(b) All proposed development,
including all structures, impervious surfaces, clearing limits, and
limits of disturbance, including grading; and
(2) A copy of any official documentation
of the original date of construction of the building or otherwise
establishing the lawfulness of existing impervious surfaces.
D. Exemption 5.
(1) A copy of any official documentation
proving the single-family dwelling was in existence on August 10,
2004;
(2) A description of the proposed
improvement; and
(3) A certification from the
applicant that the property and all improvements will continue to
be used for single-family dwelling purposes.
E. Exemption 6.
(1) A copy of any official documentation
indicating that the place of worship, public or private school or
hospital was in existence on August 10, 2004;
(2) For improvements to a place
of worship, documentation showing that the entity, society or association,
or association organized primarily for religious purposes has nonprofit
status;
(3) A site plan certified by
a licensed New Jersey professional engineer depicting:
(a) All existing property
improvements, including all structures, grading, clearing, impervious
surfaces and limits of disturbance, existing on the site on August
10, 2004; and
(b) All proposed development,
including all structures, impervious surfaces, clearing limits, and
limits of disturbance, including grading.
F. Exemption 7.
(1) For a private landowner with
an approved woodland management plan or forest stewardship plan:
(a) A copy of the applicant's
tax bill showing that the site has farmland assessment tax status
under the New Jersey Farmland Assessment Act, N.J.S.A. 54:4-23.1 et
seq., if applicable;
(b) A brief description of
the total area of woodlands that is the subject of the approved woodland
management plan or forest stewardship plan;
(c) A brief description of
the length of time that the area to be managed has been in use for
woodland management or forest stewardship plan; and
(d) A copy of the approved
woodland management plan or forest stewardship plan.
(2) For the normal harvesting
of forest products in accordance with a forest management plan or
forest stewardship plan approved by the State Forester:
(a) A brief description of
the total area where the normal harvesting of forest products occurs;
(b) A brief description of
the length of time that the area to be managed has been in use for
normal harvesting of forest products; and
(c) A copy of a forest management
plan or forest stewardship plan approved by the State Forester.
G. Exemption 8.
(1) A site plan certified by
a licensed New Jersey professional engineer showing the proposed trail
construction with details, including the location, and width of existing
and proposed trails and those off-site trails to which they connect,
if any;
(2) A written description of
the nonimpervious materials to be used; and
(3) For privately owned property,
a copy of a deed for the property and the conservation or recreational
use easement on the property.