Township of Morris, NJ Article XXXIII Environmentally Sensitive Areas

[Added 4-25-1990 by Ord. No. 5-90]

§ 57-160 Development in environmentally sensitive areas.

A. Historical statement and purpose.

(1) Within the Township of Morris there exist certain environmentally sensitive areas which, because of soil conditions or the existence of streams, floodplains, ponds, lakes or wetlands, may be subject to periodic inundation or water infiltration and which may result in danger to life and property, health and safety hazards, disruption of government services, public expenditure for flood protection and relief or for community facilities and impairment of the tax base, all of which adversely affect the public health, safety and general welfare. Further, it is the purpose of this article to protect the health, safety and welfare of people and property within the Township of Morris from improper construction, building and development on steep slope and hillside areas in the Township of Morris and, more particularly, but without limitation, to reduce the peculiar hazards which exist in hillside areas by reason of erosion, siltation, flooding, soil slippage, surface water runoff, pollution of potable water supplies from nonpoint sources and the destruction of unique and predominant views. It is a further purpose of this article to encourage appropriate planning, design and development sites within hillside areas which preserve and maximize the best use of the natural terrain and maintain ridgelines and skylines intact.

(2) In addition, within the Township of Morris such slopes are often associated with areas of exposed bedrock, shallow depth to bedrock, severe erosion potential, boulder-strewn shallow soils and perched water tables invariably involving severe limitations not only to development but to road construction and maintenance and septic effluent disposal. Disturbance of these areas can lead to contamination and depletion of water supplies, increased runoff of stormwaters and contamination and siltation of surface water systems. Of special concern are bedrock cuts made where shallow depth to bedrock and shallow soils occur that may empty aquifers feeding nearby wells and the danger of septic and nonpoint source pollution of groundwater and surface water supplies and systems. Rivers, streams, ponds, lakes and wetlands, together with their adjacent upland areas, support protective bands of vegetation that line the water's edge. Under natural conditions, these areas maintain and enhance surface water and groundwater quality by filtering out sediments and associated nonpoint pollutants from adjacent land uses. They store water and thereby stabilize dry weather stream flows, groundwater levels and flood hazards.

(3) It is therefore determined that the special and paramount public interest in these environmentally sensitive areas justifies the regulation of property located thereon as provided below, which is the exercise of the police power of the Township for protection of persons and property of its inhabitants and for the preservation of the public health, safety and general welfare.

B. Applicability. This article shall apply to all applications for minor or major subdivision or site plan approval in the Township of Morris.

C. Determination of affected areas. Land or water in the following classifications is hereby designated as an environmentally sensitive area:

(1) Flood hazard area. The floodplain, based on the total area inundated during the flood of record or such area as can be demonstrated to be now susceptible to inundation due to modifications to storage area or improvements to the channel, whether said improvements or modifications are upstream or downstream.

(2) Wetlands area. Area saturated by surface water or groundwater and/or containing hydrophytic vegetation and as further defined in N.J.S.A. 13:9B-1 et seq., the Freshwater Wetlands Protection Act.

(3) Stream. Any body of continuously or intermittently flowing water, whether designated as a stream, brook, river or otherwise, and consisting of a bed and banks.

(4) Lake area. Any body of water with a mean depth of three feet or greater and a surface area greater than 1/2 acre, whether designated as a pond, lake or reservoir.

(5) Slope area. Any slope having a grade of 15% or more.

D. Initial procedure.

(1) Applicants for site plan approval or subdivision approval shall submit to the Planning Board Secretary all information, documents and exhibits required by this chapter.

(2) The Planning Board Secretary shall process all exhibits and documents submitted under this article in the same manner as all other applications for subdivision approval or site plan approval. Additionally, all such applications shall be referred to the Environmental Commission for review and recommendation.

(3) All environmentally sensitive areas as defined above shall be identified and delineated on the site plan or subdivision map by a professional with educational background and experience in the field of environmentally sensitive areas delineation.

E. Regulations.

(1) Regulation for flood hazard areas. Notwithstanding any other provision of this chapter, development in flood hazard areas shall be regulated as follows:

(a) In flood hazard areas having a drainage area of less than 50 acres, no building or structure shall be erected or constructed, either above or below ground level, within the flood area or within a minimum of 50 feet from the center line of any stream.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(b) In a flood hazard area having a drainage area of 50 acres or greater, no building or structure shall be erected or constructed, either above or below ground level, except in accordance with a stream encroachment permit issued pursuant to the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq., and within a minimum of 50 feet from the top of the stream embankment.

(2) Regulations for wetlands. The New Jersey Department of Environmental Protection (NJDEP) has exclusive control over regulated activities within freshwater wetlands as defined in the New Jersey Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 et seq. The purpose of these regulations is to coordinate municipal development review procedures with the wetlands regulations of NJDEP.

[Amended 12-2-1998 by Ord. No. 24-98]

(a) Wetlands delineation. A wetlands letter of interpretation (LOI) issued by NJDEP shall be submitted as part of any application for development. An applicant for a grading permit, variance or construction permit for an individual single-family or two-family residential lot need not submit an LOI but must submit an on-site wetlands delineation prepared by a qualified wetlands consultant. If, however, the reviewing board or the Township Engineer determines that wetlands or wetland transition areas are present on site in locations that could be impacted by the proposed development, or that the limits of wetlands may be uncertain, or that NJDEP verification of the wetlands limits is otherwise desirable, the Board or the Township Engineer, as the case may be, shall have authority to require the applicant to obtain an LOI from NJDEP.

(b) Documentation. All freshwater wetlands and all wetland transition areas required pursuant to N.J.A.C. 7:7A-1 et seq., or any successor regulations, shall be clearly shown on all subdivisions, site plans, lot grading plans and/or other development plans submitted to the Township for any development approval. Whenever it has been confirmed that no wetlands or wetland transition areas are present on a site, a note to that effect shall be shown on the plans for development.

(c) NJDEP file identification number. Whenever on-site freshwater wetlands and/or wetland transition areas have been established by NJDEP through the issuance of an LOI, all subdivisions, site plans, lot grading plans and/or other plans submitted to the Township for any development approval shall include therein the wetlands line file identification number assigned by NJDEP in connection with the issuance of an LOI for the property.

(d) Disturbance fencing. To prevent encroachment into freshwater wetlands and wetland transition areas, the developer of any approved subdivision, site plan, lot grading plan or other development plan shall install disturbance fencing in accordance with the requirements of § 57-110.1 of this chapter before the commencement of any land disturbance or construction adjacent to any freshwater wetlands and/or wetland transition area.

(e) Silt fencing. Prior to the commencement of any land disturbance or construction, the developer of any approved subdivision, site plan, lot grading plan or other development plan shall install silt fencing and/or hay bales downstream of any disturbance area adjacent to freshwater wetlands and/or wetland transition areas, in conformation with the requirements of § 57-134G of this chapter.

(f) Proof of recording of deed restrictions. Prior to the signing of any approved minor subdivision plat, final major subdivision plat or final site plan drawings, the applicant shall submit to the Secretary of the reviewing board proof that any deed restrictions required by the New Jersey Department of Environmental Protection in connection with transition area averaging or other transition area modifications associated with the approved subdivision or site plan have been duly recorded in the land records of the Clerk of Morris County.

(g) Recording notice of wetland limits. As a condition of approval of any application for development of any lot containing freshwater wetlands and/or wetland transition areas, the applicant shall be required to record in the land records of the Clerk of Morris County a mapped description of the limits of such freshwater wetlands and/or wetland transition areas, together with a bold print notice that no land disturbance or other activities may be undertaken therein without the obtaining of all necessary prior approvals from the New Jersey Department of Environmental Protection.

(h) Waiver for improvements to existing single-family dwellings. Whenever any variance or grading permit is sought for any addition to or a modification of an existing single-family dwelling and/or the lot on which it is located, the Board of Adjustment, when acting on a variance, and the Township Engineer, when acting on a grading permit, may waive the requirements of Subsection E(2)(a), (b), (c) and/or (g) above (to the extent they are applicable) when it is reasonably clear to the reviewing authority that there exist no on-site wetlands and/or wetland transition areas, or that any on-site wetlands and/or wetland transition areas are remote from the areas of proposed development and/or disturbance. Nothing herein shall authorize or permit any unlawful disturbance of or activities within freshwater wetlands and/or wetland transition areas.

(3) Regulations for lake areas. Notwithstanding any other provision of this article, no building or structure shall be erected or constructed, either above or below ground level, within 50 feet of the edge of any lake. Nothing herein contained, however, shall be construed to prohibit the construction and maintenance of dams or other structures for the impoundment or retention of water in any such stream or lake or of dug ponds or reservoirs, provided that all applicable requirements and approvals of any and all public authorities having jurisdiction over such matters are met and obtained. The following shall be permitted uses or activities in lake environmentally sensitive areas, provided that they do not disturb the natural and indigenous character of the areas and provided that such use is permitted in accordance with all other Township ordinances:

(a) Conservation of soil, vegetation, water, fish and wildlife.

(b) Fishing, swimming, boating, waterskiing and hunting.

(c) Trails for nonmotorized uses.

(d) Grazing.

(e) Dispersal areas for surface water.

(f) Deck, pier and boathouse construction in accordance with other provisions of all Township ordinances.

(4) Regulations for slope areas. To meet the purposes and goals set forth in this article, all subdivisions, site plans, lot grading plans and other development plans shall be required to meet the following requirements:

[Amended 12-2-1998 by Ord. No. 24-98]

(a) The applicant shall prepare a steep slopes map based on ten-foot contour intervals, delineating by category slope classes of 0% to 14.9%, 15% to 19.9%, 20% to 24.9% and 25% and greater. The slope map shall include a calculation of the area of proposed disturbance within each slope class within all existing and/or proposed lots, as well as within any proposed road right-of-way.

(b) Those areas with slopes ranging from 0% to 14.9% are not restricted against development under this section.

(c) Within slope areas of 15% to 19.9%, not more than 50% of such areas shall be disturbed for development, regraded or stripped of vegetation.

(d) Within slope areas of 20% to 24.9%, not more than 33 1/3% of such areas shall be disturbed for development, regraded or stripped of vegetation.

(e) Within areas having slopes of 25% or greater, no development, regrading or stripping of vegetation shall be permitted unless such activity is essential for the construction of a roadway or driveway crossing, required utility construction, stormwater management control facility or other like necessary improvement. The applicant must demonstrate to the satisfaction of the reviewing board or other official having jurisdiction that such disturbance activity is necessary to fulfill the essential service requirements of the development and that there is no practical alternative to it.

(f) No land disturbance or construction activity shall be undertaken within any area with slopes exceeding 14.9% unless the developer has first secured a grading permit pursuant to § 57-138 of this chapter. Whenever disturbance is proposed in areas with slopes exceeding 14.9%, detailed grading plans and architectural plans must be submitted under § 57-138. The plans shall be designed to ensure that drainage and/or erosion problems will not result from the proposed development. The architecture of all buildings shall be specifically designed to accommodate the topography. Roads and driveways shall be designed to follow the natural topography to the greatest extent possible in order to minimize disturbance of steep slope areas. Nothing in this section shall be construed to limit the applicability of § 57-138 to areas of steep slope.

(g) As a condition of approval of any application for development of any lot containing areas of slope in excess of 14.9%, the applicant shall be required to record in the lands records of the Clerk of Morris County a mapped description of the limits of such steep sloped areas, together with a bold print notice that no land disturbance or other activity may be undertaken therein, except in conformance with the requirements of § 57-160E(4) of the Code of the Township of Morris.

(h) Whenever any variance or grading permit is sought for any addition to or modification of an existing single-family dwelling and/or the lot on which it is located, the Board of Adjustment, when acting on a variance, and the Township Engineer, when acting on a grading permit, may waive the requirements of Subsection E(4)(a) and/or (g) above (to the extent they are applicable) when it is reasonably clear to the reviewing authority that there exist no on-site slopes in excess of 14.9% or that any slopes in excess of 14.9% are remote from the areas of proposed development and/or disturbance. Nothing herein shall authorize or permit any lawful disturbance of or activities within slopes in excess of 14.9%

(5) The foregoing provisions shall not be construed to preclude the installation of underground utility lines through the above-designated areas.[2]

[2] Editor's Note: Original § 57-160F, Driveway construction, of the 1969 Code, which immediately followed this subsection, was repealed 12-2-1998 by Ord. No. 24-98.

§ 57-161 Environmental impact statements.

[Added 10-14-1992 by Ord. No. 3-92]

A. Purpose. In order that the Township of Morris may assess the impact of certain proposed applications for development on the natural environment of the municipality, particularly with respect to potable water, pollution of all kinds, drainage, waste disposal, landscape and other pertinent environmental factors, the Township Committee has determined that it is in the public interest that all persons who shall propose such developments shall submit an environmental impact statement (EIS) in accordance with the provisions of this section when required.

B. Environmental impact statement submission guidelines.

(1) The requirement to prepare an EIS shall be based upon a finding of fact by the Planning Board or Board of Adjustment, as the case may be (hereinafter "approving authority"), with the advice of the Technical Coordinating Committee (hereinafter "TCC"), and using the following guidelines:

(a) That the natural conditions of the property in question or the surrounding area are such that an EIS is necessary to ascertain the specific effects of the proposed application for development;

(b) That the project is likely to have a significant adverse impact on the environment;

(c) That the project has been conceived or designed in a manner that would significantly alter the site's natural features or processes;

(d) That the project is likely to place an excessive demand upon off-site or on-site capacities or resources, including public facilities and infrastructure; or

(e) That the project is located within the sewer service area of the Township of Morris, requires an NJDEP treatment works approval pursuant to N.J.A.C. 7:14 and is located in an area mapped as rank three, four or five habitat for threatened and endangered species areas as depicted by the NJDEP Landscape Project Maps. (Refer to Plate 8 in the Township of Morris Wastewater Management Plan for potentially impacted lots.)

[Added 9-21-2005 by Ord. No. 23-05]

(2) In making its finding of fact, the approving authority shall give due consideration to any recommendations of the Township Environmental Commission.

C. Approving authority review. An EIS prepared in accordance with the provisions of this section shall be submitted for review by the approving authority upon the approving authority making the requisite finding of fact for:

(1) Major subdivisions which propose the creation of 10 or more lots, including a remainder parcel.

(2) Site plans for tracts of 10 acres or larger which propose land disturbance of 20% or more of the tract area or which propose land disturbance of less than 20% but which the approving authority finds to fall within one or more of the EIS submission guidelines.

(3) Major subdivisions of fewer than 10 lots and site plans of fewer than 10 acres which the approving authority finds to fall within one or more of the EIS submission guidelines.

D. Contents of EIS.

(1) An EIS shall generally include but not necessarily be limited to:

(a) An inventory of existing environmental conditions at the project site. It shall describe air quality, water quality, water supply, hydrology, geology, soils, topography and vegetation. It shall also document the existence or nonexistence of any threatened or endangered species on the project site by completing a Threatened and Endangered Species Analysis (TESA) in accordance with Subsection J of this section.

[Amended 9-21-2005 by Ord. No. 23-05]

(b) A project description. It shall specify what is to be done and how it is to be done during construction and operations. It shall specifically address any development impacts related to freshwater wetlands and transition areas, slopes of 15% or greater and floodplains.

(c) A water supply and sanitary waste disposal plan meeting state and municipal standards.

(d) A listing of all licenses, permits or other approvals as required by law and the status of each.

(e) An assessment of the probable impact of the project upon topics described in Subsection D(1)(a).

(f) A listing of adverse environmental impacts which cannot be avoided with respect to the topics described in Subsection D(1)(a) and identification of those which are permanent and those which are temporary in nature.

(g) Steps to be taken to minimize adverse environmental impacts during construction and operation, both at the project site and in the surrounding area.

(h) Alternatives to all or any part of the project with reasons for their acceptability or nonacceptability.

(2) The approving authority may require such additional information as it, in its sole discretion, deems necessary. Such information may include traffic data, demographic analysis and acoustic and illumination analysis of the site's historic or archaeological features.

E. Review by Technical Coordinating Committee. The TCC shall review each EIS for completeness and technical sufficiency pursuant to this section and shall, in due course, report to the approving authority the results of its review.

F. Review of other bodies. The approving authority, in its sole discretion, may refer an EIS to another Township agency for its information, review and recommendations. Such agency shall conduct its review and report to the approving authority within the applicable statutory running times for the application for development. Failure of another agency to make its report or recommendations within the applicable time periods shall not oblige the approving authority to delay the processing of the application or seek an extension of time from the applicant.

G. Review by experts. In reviewing an environmental impact statement, the approving authority, through its administrative officer, may refer the statement to one or more qualified environmental specialists, consultants or other special experts of its choosing, at the applicant's sole cost and expense, to obtain comments, suggestions or recommendations. Such payment for such review and report and the collection of funds therefor shall be in accordance with § 57-29C. Said authority may consider but not be bound by such information in deciding whether to approve, reject or require revisions to the proposed project development.

[Amended 4-21-1993 by Ord. No. 10-93]

H. Persons preparing EIS. Every EIS required by this section shall be prepared by a licensed professional planner of the State of New Jersey or by such other person as shall satisfy the approving authority and the TCC, as the case may be, that he or she possesses adequate expertise in the applicable environmental field by virtue of training, experience or education.

I. Waiver. The approving authority may waive the requirements for an EIS, in whole or in part, if sufficient evidence is submitted by the applicant to support a conclusion that the proposed project will have a negligible environmental impact or that a complete EIS need not be prepared in order to evaluate adequately the environmental impact of the project.

J. Threatened and endangered species analysis. In accordance with the provisions of this section, the applicant shall be required to complete a threatened and endangered species analysis (TESA) for the project site. A TESA shall include but not necessarily be limited to:

[Added 9-21-2005 by Ord. No. 23-05]

(1) Identification of specific species and area of habitat depicted by the New Jersey Department of Environmental Protection Landscape Project Maps for rank three, four and five habitat areas. Landscape Project Maps are available by request from the New Jersey Department of Environmental Protection. In the alternative, an individual who meets the qualifications of a certified wildlife biologist as established by the Wildlife Society may perform a site-specific analysis identifying all species and habitat areas.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

(2) Identification of measures to be taken to avoid confirmed habitat areas and any negative impacts to the survival of those species shall be identified. Measures should include those necessary to mitigate or restore habitat areas which will be disturbed by the proposed project.

(3) Submission of a conservation plan is required for all unavoidable impacts to habitat areas that have been identified by an individual who meets the qualifications of a certified wildlife biologist as established by the Wildlife Society.

(4) Identification of measures to be taken to permanently protect these areas from current or future impacts from development of adjoining noncritical areas. Measures should include protection of identified areas with a deed-restricted conservation area.