[HISTORY: Adopted by the Borough Council
of the Borough of Bay Head as indicated in article histories. Amendments
noted where applicable.]
[Adopted 4-7-1992 as Ord. No. 1992-6]
As used in this article, the following terms
shall have the meanings indicated:
Includes all vehicles propelled other than by muscular power,
including, but not limited to, vehicles which are or may be licensed
by the State of New Jersey as motor vehicles whether or not the same
are designated as "beach buggies," "dune buggies," "motorcycles,"
"trail bikes," "minibikes" or otherwise.
The maintenance, use or operation of a motor
vehicle upon, through or across that portion of the oceanfront beach
lying within the Borough of Bay Head bounded on the west by the landward
edge of the dune and on the east by the waters of the Atlantic Ocean
is prohibited.
Designated emergency or patrol motor vehicles
may, from time to time, in emergency situations, with the express
permission of the Chief of Police, be operated within the beachfront
area to preserve and protect the health, safety and general welfare
of the citizens of the municipality.
[Amended 11-19-1996 by Ord. No. 1996-5]
Any person, firm or corporation that shall be
convicted of a violation of a provision of this article shall, upon
conviction thereof by any court authorized by law to hear and determine
the matter, be subject to a fine not exceeding $1,000 or imprisonment
for a term not exceeding 90 days or a period of community service
not exceeding 90 days, or any combination thereof, as such court,
in its discretion, may impose. Each day that such violation exists
shall constitute a separate offense.
[Adopted 4-6-2020 by Ord. No. 2020-04[1]]
[1]
Editor's Note: This ordinance also repealed former Art. II,
Protection of Beaches and Dunes, adopted 9-7-1993 by Ord. No. 1993-8, as amended.
A.
The Borough has a vital interest in the continued maintenance and
protection of the beach and dune areas and in the right to cause their
restoration in the event of damage or destruction.
B.
Maintenance and protection of the ocean beach and dune areas are
also a requirement of the Borough under a State Aid Agreement (SAA)
between the Borough and the New Jersey Department of Environmental
Protection (NJDEP) and consistent with the conditions of the United
States Army Corp of Engineers (USACE) fifty-year duration Beach and
Dune System Federal Shore Protection Program initiated in December
2016 and extending to December 2066.
C.
The beach area and dune area are not capable of rigid definition
or delineation or of completely firm stabilization. Persons owning,
using or purchasing such property do so subject to the public interest
therein and are also bound by the limitations and conditions of easements
with the Borough and NJDEP.
D.
It is the purpose of this article to define the areas so affected
and to establish regulations to assure their continued effectiveness
and provide storm and flood protection.
E.
The Borough makes no representation that the regulations set forth
in this article are compliant with NJDEP/CAFRA standards, and each
property owner is required to ensure compliance with all applicable
state and federal laws for construction, maintenance, or improvement
of dunes and dune structures with all applicable authorities.
F.
This article is declared to be an exercise of the police power in
the interest of safety and welfare for the protection of persons and
property.
For the purpose of this article, the following words shall have
the meanings given herein.
As defined by N.J.A.C. 7:7-9.22(a).
The Coastal Area Facilities Review Act, N.J.S.A. 13:19-1
et seq., and regulations issued thereunder at N.J.A.C. 7:7 et seq.,
as may be amended from time to time.
The present NJDEP Coastal Zone Management Rules adopted by
the NJDEP under N.J.A.C. 7:7 or as may be amended.
As defined by N.J.A.C. 7:7-9.16(a).
An expert on dunes and their care approved by the Mayor and
Council of the Borough of Bay Head. The Dune Consultant shall be retained
on a consulting basis and will not be a full-time employee.
The highest elevation of the sand dune.
An auger-type anchor utilized to protect against wind uplift
of dune platforms typically constructed of galvanized or stainless
steel with a minimum penetration below the dune surface of 30 inches.
Shall be as defined by the NJDEP at N.J.A.C. 7:7-1.5.
Includes the terms "native vegetation" or "indigenous vegetation"
and shall be limited to the species permitted by the NJDEP at N.J.A.C.
7:7-10.4, as may be amended and supplemented.
An at-grade passage over the dunes.
The sloped shore protection structure consisting of a facing
made of stone, placed on a bank, bluff, or shoreline to withstand
the forces of waves and currents.
That line determined by the setback distances as may be specified
in the Land Use Ordinance[1] of the Borough to define the limits of development on
a buildable lot.
The beach and dune project originally constructed by the
US Army Corps of Engineers in 2019 and subject to all applicable construction
and maintenance easements and agreements with the New Jersey Department
of Environmental Protection.
A constructed (improved) at-grade or elevated means of crossing
the dune.
A.
Construction east of the setback line is prohibited, except as provided in Subsections G and H herein, and except as specifically allowed herein or by Chapter 147, Land Use, and Chapter 126, Flood Damage Prevention, and in accordance with any NJDEP Coastal Zone Management Rules, CAFRA regulations, and subject to permits as may be issued pursuant to these enactments. Notwithstanding this provision, construction east of the setback line that had been lawfully erected pursuant to a permit granted by the Borough prior to the enactment of this article may be left in place and shall not be deemed to violate this article. This exception shall not apply to construction within any easement area associated with the USACE Beachfill and Dune Project.
B.
No person shall be in the dune area unless:
(1)
Upon an approved pathway, walkway or dune platform;
(2)
In the performance of such activities as may be reasonably and necessarily
required to construct or maintain the dune or allowed structures;
(3)
For the purposes of inspection or enforcement of this article; or
(4)
As authorized by the USACE and/or the NJDEP and/or the Borough for
the construction and maintenance of the initial or subsequent beach
and dune construction projects.
C.
The removal, cutting, burning or destruction of natural vegetation, sand fence or such other types of dune protection devices in the dune area is prohibited, except as necessary for construction authorized pursuant to Subsections G and H. Any routine maintenance on the dune shall be in accordance with the New Jersey Coastal Zone Management Rules set forth at N.J.A.C. 7:7 et seq.
D.
The removal of sand from the beach or dune area is prohibited, except
in accordance with validly issued NJDEP permits.
E.
Sand which is transported upon lands by action of winds, tides, storms
or any combination thereof shall not be removed from the lot upon
which it has been deposited. Clean sand deposited upon any improved
street ends shall be restored into the beach and dune area.
F.
No dune shall be directly or indirectly lowered or reduced in height
by the owner or his or her agent. Accordingly:
(1)
On any dune which was not created as part of the USACE Project, each
owner shall plant or cause to be planted in the dune area on his or
her property suitable vegetation consistent with NJDEP Coastal Zone
Management Rules as set forth at N.J.A.C. 7:1-1 et seq.
(2)
On any dune which was not created as part of the USACE Project, each
owner shall erect or cause to be erected on his or her property suitable
sand fencing in accordance with NJDEP Coastal Zone Management Rules
as set forth at N.J.A.C. 7:1-1 et seq. The use of metal as posts in
construction of sand fences is not permitted. Fences containing metal
posts in existence at the time of adoption of this section shall be
permitted but shall conform to this definition upon replacement or
reconstruction.
(3)
If any dune, including but not limited to a dune created as part
of the USACE Project, is lowered or caused to be lowered by an action
or omission of any owner, owner's agent or lessee (specifically not
including natural causes), then the dune shall, upon due notice to
the owner, owner's agent, guest or lessee, be restored as soon as
reasonably possible to its preexisting elevation by the owner at his
or her expense. The restored dune shall be planted and sand fenced
in accordance with NJDEP Coastal Zone Management Rules as set forth
at N.J.A.C. 7:1-1 et seq.
G.
Dune pathways or walkways.
(1)
One pathway or walkway across the dune area is permitted for each
residence in accordance with N.J.A.C. 7:7-10.4(e). It shall run, generally,
the shortest practical course between the residence and the seaward
edge of the dune and shall not exceed four feet in width. The pathway
or walkway may, at the property owner’s discretion, run from
the landward side of the dune to the dune crest in order to provide
access to a permitted dune platform. Dune pathways or walkway shall
be at least 10 feet from each sideline of the property. Fencing is
optional for pathways and walkways. Any fencing installed shall be
consistent with NJDEP Coastal Zone Management Rules at set forth at
N.J.A.C. 7:1-1 et seq.
[Amended 4-5-2021 by Ord. No. 2021-02]
(a)
Pathways. A singular natural path for each residence may be
used to access the ocean, beach or any dune platform. The pathway
may be protected by placing suitable wear-resistant material on the
sand surface with a maximum width of four feet in accordance with
NJDEP CZM regulations. This surface shall be constructed on-grade
and be composed of natural, aggregate or temporary removable walkways,
geotextile access surface mats, or other modular components. Pathways
may be placed directly on the dune surface and may remain in place
as long as they are not found to be a detriment to maintaining the
minimum dune crest elevation consistent with the USACE Beachfill and
Dune Project elevation by the Dune Consultant, in the exercise of
reasonable professional judgment.
(b)
Walkway. At-grade walkways are permitted for each residence
in accordance with N.J.A.C. 7:7-10.4(e).
[1]
At-grade walkways shall be constructed with the use of stringers
of no greater than six inches in vertical section placed directly
on grade; handrails may be installed on a walkway or steps to facilitate
stability when negotiating the walkway. Handrails shall be no more
than two inches in vertical cross section, all to limit debris if
swept away in any storm surge and also to limit visual interference
of the dune and ocean to the views of adjoining properties. Planking
no more than six inches in width and with a maximum gap area between
planks of 1/2 inch may be secured to the top of the stringers. Walkway
components shall be constructed to facilitate optional removal for
periods of nonuse, anticipated storm impacts or future dune development
or maintenance.
[2]
Posts shall not be utilized to vertically support walkways,
but only for lateral stabilization. Walkways may be secured with earth
anchors strapped to the frame to resist wind uplift at the owner's
discretion.
[3]
Walkways lawfully in existence prior to the enactment of this
article may be left in place and shall not be deemed to violate this
article.
(2)
Elevated walkways may be required to traverse the low-lying area
of the dune and shall meet the following conditions.
(a)
The elevated walkway shall, in all events, be maintained in
the same fashion and subject to the same regulations as may govern
use of pathways and walkways. Elevated walkways may not be constructed
without an elevated walkway permit issued by the Dune Consultant.
(b)
For elevated walkways, the owner shall submit a plot plan showing
the exact location of the walkway with respect to the property boundary
lines and the crest of the dune and a detailed drawing or sketch of
the proposed elevated walkway. The Dune Consultant shall have the
authority to require any additional information or approvals to show
compliance with any zoning or applicable construction code requirements.
(c)
The elevated walkway shall be constructed with the use of stringers
and bridging of no greater than six inches in vertical section; stringers
may be sistered together horizontally for added strength. Handrails
may be constructed as required by building code but shall be no more
than two inches in vertical cross section. Planking shall be no more
than six inches in width with a maximum gap area between planks of
1/2 inch. The top of the planking shall be no higher than as is reasonably
necessary to bridge any gap between the revetment and the dune constructed
as part of the USACE Beachfill and Dune Project, but may exceed this
height when crossing naturally higher dune elevations or connecting
to decks, stairways or stairway landings attached to existing or approved
primary residential structures. Elevated walkway structures shall
be designed to facilitate removal for extended periods of nonuse and
accommodate future dune development and maintenance where possible.
The vertical maximum six-inch vertical section and maximum walkway
height shall be maintained to minimize visual adverse impact to the
views of the dune and ocean from adjoining properties. All necessary
Borough and regulatory permits shall be obtained prior to any construction
of elevated walkways.
(d)
Walkways may only be elevated upon approval under a Borough elevated walkway permit and in accordance with the Borough's Chapter 126, Flood Damage Prevention, § 126-16, associated permitting procedures. Supports for elevated walkways shall be designed to address the impacts of, and to, the revetment installed within the dune system where applicable.
(3)
When, in the reasonable professional judgment of the Dune Consultant,
the walkway or walkway supports are deemed to be jeopardizing the
integrity of the dune system by allowing the desired dune crest grade
or dune slope surfaces to be lowered by more than one foot below the
improved USACE dune template surface, the area shall be restored with
material of such grain size, shape, color and other characteristics
as will, in the reasonable judgment of the Dune Consultant, be compatible
with the existing on-site sand to its prescribed elevation by the
owner at their own expense.
(4)
The fee for a dune walkway permit, if required, shall be $200. The
fee for an elevated walkway permit shall be $350 for the first submission.
There shall be a fee of $100 for any additional submission. These
fees are intended to cover the actual cost of permit review by the
Borough, and any fee monies exceeding actual costs shall be returned
to the applicant upon issuance of the permit.
H.
Dune platforms; permit.
(1)
Each oceanfront lot shall be allowed a dune platform not to exceed
200 square feet, with a maximum length of 20 feet, situated within
the dune area, with the following exception:
(a)
In the event that a legally existing dune platform exists in
a location landward of the USACE Beachfill and Dune Project at the
time of the adoption of this article, a second dune platform not to
exceed 200 square feet shall be allowed upon the crest of the dune
created as part of the USACE Beachfill and Dune Project.
(b)
Legal, preexisting dune platforms may exceed a length or width
of 20 feet; however, in the event that such a platform is more than
partially destroyed, any replacement platform shall not exceed a length
or width of 20 feet.
(c)
Flagpoles are permitted structures that are not subject to these
provisions. No flagpoles are permitted within the limits of the USACE
Beachfill and Dune Project.
(2)
The dune platform shall, in all events, be maintained in the same
fashion and subject to the same regulations as may govern use of pathways
and walkways. Dune platforms may not be constructed without a dune
platform permit, to be issued by the Dune Consultant, with additional
approvals by the Zoning Officer and Construction Official and upon
payment of all applicable permit fees. Prior to the issuance of a
dune platform permit, the owner shall submit a sketch or plot plan
showing the exact location of the platform with respect to the property
boundary lines and the dune crest and a detailed drawing or sketch
of the proposed platform. The Dune Consultant shall have the authority
to require any additional information or approvals to show compliance
with any zoning or applicable construction code requirements. A walkway
or pathway, not to exceed four feet in width, shall be provided for
access east and west of the platform to minimize damage to vegetation
by pedestrian traffic, but must have a clear separation of a minimum
of 1/2 inch for the walkway not to be included in the platform area
calculations. Platforms shall be located such that the eastern edge
is a minimum of five feet westerly of the seaward dune crest and the
northerly or southerly edge is a minimum of 10 feet from the property
line.
[Amended 4-5-2021 by Ord. No. 2021-02]
(3)
All platforms and platform components shall be constructed of wood.
Platforms may not have walls, roofs, lattices, railings or built-in
seating. Platforms may not be connected to utilities, including but
not limited to electric, water or sewer. Notwithstanding this provision,
platforms together with lawful appurtenances and connected utilities
that had been lawfully erected pursuant to a permit granted by the
Borough prior to the enactment of this article may be left in place
and shall not be deemed to violate this article.
(4)
The dune platform shall be constructed at grade with neither length
nor width greater than 20 feet; stringers or ledger boards shall be
no greater than six inches in vertical section placed directly on
grade. Planking shall be no more than six inches in width, and the
maximum gap area between planks shall not exceed 1/2 inch. The top
of planking shall not exceed elevation 22.7 NAVD88 in USACE Beachfill
and Dune Project constructed crest areas, however, may be a maximum
of eight inches above existing grade in natural dune areas of a higher
grade or lower grade. Structures shall be constructed to facilitate
removal for periods of extended nonuse, dune development and dune
maintenance.
(5)
Notwithstanding any other provision of this Code, platforms shall
be secured with earth anchors strapped to the frame.
(6)
The fee for a dune platform permit shall be $200.
(7)
Appeals.
(a)
The Planning Board shall hear and decide requests for variances
from the requirements of this article; appeals from the decision of
the Planning Board may be made to the Superior Court of New Jersey.
(b)
The Planning Board shall consider the following in passing upon
applications for variance from the dune platform standards set forth
in this article:
(c)
Upon consideration of the factors listed above and the purposes
of this article, the Planning Board may attach such conditions to
the granting of variances as it deems necessary to further the purposes
of this article.
(d)
Application.
[1]
A complete application for an appeal from the requirements of
this article shall include the following:
[a]
Completed applications for development.
[b]
Receipted tax bills.
[c]
Required fees.
[d]
Seven sets of drawings (scale not less than one inch equals
100 feet) showing:
[i]
The entire tract in question.
[ii]
Existing structures on the tract.
[iii]
Proposed structures on the tract.
[iv]
Streets, roads, driveways and sidewalks within
or immediately adjacent to said tract.
[v]
All existing and proposed side, front and rear
yard dimensions.
[vi]
Where necessary, architectural plans showing at
least front elevations and dimensions of proposed structures.
[vii]
Such other information as may be required by
the approving authority.
[2]
[3]
Application fee; escrow.
[a]
Application fee: $250.
[b]
Escrow deposit: $750.
[i]
Review fee escrow deposits. In addition to the
nonrefundable application fee set forth above, the applicant shall
also pay an amount equal to the legal, engineering and other professional
costs incurred by the Borough in reviewing the application.
[ii]
Additionally, applicants shall execute an escrow
agreement, in a form provided by the Borough Council, consenting to
pay these review costs and specifically stating that in the event
that the fees imposed are not paid, any development approvals granted
shall be considered null and void. The review fee escrow deposit shall
be held in an escrow account to the credit of the applicant. The Borough
shall be responsible to keep a record to determine the actual review
costs attributed to each application.
[iii]
In the event that the initial deposit is not
sufficient to cover the professional charges incurred in reviewing
an application, the applicant shall be required to deposit additional
funds as determined by the Borough. The approving authority shall
not be required to process the application to take further action
upon an application until such additional deposits are made by the
applicant. If these additional deposits remain unpaid for a period
of 60 days, the application shall be deemed to be withdrawn and shall
be dismissed without prejudice.
[iv]
In the event the review fee escrow deposit shall
be in excess of the amounts necessary to cover the professional charges
incurred in reviewing an application, the excess funds shall be returned
to the applicant within 45 days of the final decision on the application
or adoption of a resolution memorializing the decision, whichever
occurs later.
[c]
The development application, together with all required attachments
and the required fee, must be submitted to the Planning Board Clerk
before the filing deadline. The deadline for filing an application
is the close of business 21 days prior to scheduled meetings.
[d]
Upon submission of the application, the Planning Board Clerk
will review the application for completeness and calculation of the
required fee. Upon determination that the application is complete,
the Planning Board Clerk will assign an application number, schedule
a hearing on the application and notify the applicant of the scheduled
hearing date. Hearings will be scheduled in the order in which development
applications are certified as complete. The applicant may request
a scheduled hearing be continued to a future meeting date upon written
request to the Planning Board Clerk which includes the applicant's
consent to extend applicable time limits.
[e]
Hearing notice requirements. The applicant shall be required
to notify property owners within 200 feet in all directions of the
property that is the subject of the hearing.
I.
Dune mechanical replenishment; permit. No person shall engage in
mechanical replenishment on ocean beach dunes within the Borough without
first obtaining any and all required permits for such activity. "Mechanical
replenishment" shall be broadly defined to include the transport of
sand from the berm, above mean high water, by any mechanical means
(bulldozing or like activity) to or into the dune area.
J.
The Borough Dune Consultant or the Chief of Police shall enforce the affirmative duty of each oceanfront owner, as set forth in this article, by service of a written notice, certified mail, return receipt requested, upon the record owner of the dune at his or her last known address requiring specific compliance with obligations concerning dune protection and/or restoration. The notice shall also advise that, unless the owner shall take appropriate corrective action and complete the same within 45 days from the date of mailing said notice, the Borough may perform such acts of protection and/or restoration at the expense of the owner. In the event that any such owner shall fail to pay, then the sum together with interest at the highest legal rate thereon shall become a lien upon the property and be collected in the same manner as delinquent real property taxes. In addition to the action described above, the owner may, at the election of the enforcement officials, be prosecuted for violation of this article in accordance with § 75-8.
K.
No person shall operate a motorized vehicle across or upon any beach
and dune area except as may be necessitated for police and beach operations,
or for allowed construction or inspection and beach and dune maintenance.
Except as otherwise provided, for any and every violation of this article, the owner of lands where such violation has been committed or the trespasser if the violation is of § 75-7B, or any violator, shall, for each and every violation, be subject to a fine of not more than $1,000 or imprisonment for a term not to exceed 90 days or a period of community service not exceeding 90 days, or any combination thereof, at the discretion of the court having jurisdiction in this matter. Each and every day that a violation continues shall be deemed a separate offense.
