[HISTORY: Adopted by the Borough Council
of the Borough of Pennington 8-4-2008 by Ord. No. 2008-2. Amendments noted where
applicable.]
The governing body of the Borough of Pennington
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 Borough, consistent with the interest of landowners
in making reasonable economic use of parcels of land that include
such designated areas. The purpose of this chapter is to designate
Riparian Buffer Conservation Zones, and to provide for land use regulation
therein in order to protect the streams, lakes, and other surface
water bodies of the Borough; to protect the water quality of watercourses,
reservoirs, lakes, and other significant water resources within the
Borough; to protect the riparian and aquatic ecosystems of the Borough;
to provide for the environmentally sound use of the land resources
of the Borough; and to complement existing state, regional, county,
and municipal stream corridor protection and management regulations
and initiatives. The specific purposes and intent of this chapter
are to:
A.
Restore and maintain the chemical, physical, and biological
integrity of the water resources of the Borough;
B.
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 sheet flow prior to reaching receiving waters;
C.
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.
Provide for the availability of natural organic matter
(fallen leaves and twigs) and large woody debris (fallen trees and
limbs) that provide food and habitats for small bottom-dwelling organisms
(insects, amphibians, crustaceans, and small fish), which are essential
to maintain the food chain;
E.
Increase streambank stability and maintain natural
fluvial geomorphology of the stream system, thereby reducing streambank
erosion and sedimentation and protecting habitats for aquatic organisms;
F.
Maintain base flows in streams and moisture in wetlands;
G.
Control downstream flooding; and
H.
Conserve the natural features important to land and
water resources, e.g., headwater areas, groundwater recharge zones,
floodways, floodplains, springs, streams, wetlands, woodlands, and
prime wildlife habitats.
The Borough of Pennington 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 Borough is also empowered to adopt and implement this chapter
under provisions provided by the following legislative authorities
of the State of New Jersey:
A.
Water Pollution Control Act, N.J.S.A. 58:10A et seq.
B.
Water Quality Planning Act, N.J.S.A. 58:11A-1 et seq.
C.
Spill Compensation and Control Act, N.J.S.A. 58:10-23.11
et seq.
D.
Soil Erosion and Sediment Control Act, N.J.S.A. 4:24-39
et seq.
E.
Flood Hazard Area Control Act, N.J.S.A. 58:16A-50
et seq.
As used in this chapter, the following terms
shall have the meanings indicated:
The Planning Board and Board of Adjustment or Construction
Office with all of the powers delegated, assigned, or assumed by them
according to statute or ordinance.
A person applying to the Planning Board and Board of Adjustment
or the Construction Office proposing to engage in an activity that
is regulated by the provisions of this chapter, and that would be
located in whole or in part within a regulated Riparian Buffer Conservation
Zone.
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 any supplementary
or successor legislation and regulations from time to time enacted
or promulgated.
Surface water drainage channels with definite natural bed
and banks in which there is not a permanent flow of water. Streams
shown as a dashed line on either the USGS topographic quadrangle maps
or the USDA County Soil Survey Maps of the most recent edition that
includes hydrography are included as intermittent streams.
Any impoundment, whether naturally occurring or created in
whole or in part by the building of structures for the retention of
surface water, excluding sedimentation control and stormwater retention/detention
basins and ponds designed for treatment of wastewater.
A stream that flows continuously throughout the year in most
years. These streams usually appear as a blue line on USGS topographic
quadrangle maps or on USDA County Soil Survey Maps.
An area of land or water within or adjacent to a surface
water body within the borough of Pennington.
Any aboveground perennial stream, intermittent stream, lake,
pond, or reservoir, as defined herein. In addition, any state open
waters identified in a letter of interpretation issued by the New
Jersey Department of Environmental Protection Land Use Regulation
Program shall also be considered surface water bodies.
A.
Riparian Buffer Conservation Zones (RBCZs) shall be
delineated as follows:
(1)
For areas adjacent to surface water bodies, the RBCZ
shall be measured from the top of bank of an intermittent or perennial
stream, or center line if bank is not defined, and shall extend 50
feet horizontally outward from the perpendicular.
(2)
For areas adjacent to surface water bodies for which the floodway has been delineated, the RBCZ shall cover the entire floodway area, or the area described in Subsection A(1) or (2), whichever area has the greatest extent. Floodway delineations shall be based upon the state's adopted floodway delineations. However, 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.
B.
An RBCZ 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 RBCZ 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.
C.
The applicant or designated representative shall be
responsible for the initial determination of the presence of an RBCZ
on a site, and for identifying the area on any plan submitted to the
Borough 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, governing body,
or its appointed representative, and, where required, by the New Jersey
Department of Environmental Protection.
Any RBCZ area shall remain in a natural condition
or, if in a disturbed condition, including agricultural activities,
at the time of adoption of this chapter 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 Planning Board and Board of Adjustment in RBCZs. No
new construction, development, use, activity, encroachment, or structure
shall take place in an RBCZ, except as specifically authorized in
this section. The following uses shall be permitted within an RBCZ:
A.
Open space uses that are primarily passive in character
shall be permitted by right to extend into an RBCZ, provided near
stream vegetation is preserved. These uses, if permitted uses in the
affected Land Use Zone District, do not require approval by the Zoning
Enforcement Officer or compliance with an approved RBCZ management
plan. Such uses include passive recreation areas of public and private
lands, including lawns and gardens, hiking, bicycle and bridle trails.
B.
Fences, for which a permit has been issued by the
Construction Code Office, to the extent required by applicable law,
rule or regulation.
C.
Crossings by farm vehicles and livestock, recreational
trails, roads, railroads, stormwaterlines, sanitary sewer lines, waterlines
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 RBCZ management
plan and that the area of the crossing is stabilized against significant
erosion due to its use as a crossing.
D.
Streambank stabilization or riparian reforestation,
which conforms to the guidelines of an approved RBCZ management plan,
or wetlands mitigation projects that have been approved by the Department
of Environmental Protection, subject to approval by the Zoning Enforcement
Officer and subject to compliance with an approved RBCZ management
plan.
For all RBCZs, the following conditions shall
apply when the applicant is required to appear before the Planning
Board:
A.
All new major and minor subdivisions and site plans
shall be designed to provide sufficient areas outside of the RBCZ
to accommodate primary structures, any normal accessory uses appurtenant
thereto, as well as all additional or expanded lawn areas.
B.
Any proposed use or any portion of a lot or lots within the RBCZ, except those not requiring Planning Board and/or Zoning Board approval as described in § 153-5 above, must be permanently restricted by deed or conservation easement held by the Borough, its agent, or another public or private land conservation organization, which has the ability to provide adequate protection to prevent adverse impacts within the RBCZ. 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 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 this chapter. The recorded conservation restriction shall, at a minimum, include:
(1)
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);
(2)
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 Borough. The flags or stakes shall be numbered and identified
on the survey plan; and
(3)
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.
C.
Any lands proposed for development which include all or a portion of an RBCZ shall, as a condition of any major subdivision or major site plan approval, encourage the vegetation or revegetation of any portions of the RBCZ 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 noninvasive tree and plant species to the maximum extent practicable in accordance with an approved Riparian Buffer Conservation Zone management plan, described in § 153-10.
D.
For building lots which exist as of the date of adoption
of this chapter, 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
RBCZ, provided that a deed restriction and/or conservation easement
is applied which prohibits clearing or construction in the RBCZ.
E.
All stormwater shall be discharged outside of but
may flow through an RBCZ 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.)
F.
If stormwater discharged outside of and flowing through an RBCZ cannot comply with the standard for off-site stability cited in Subsection E, then the stabilization measures in accordance with the requirements of the above standards may be placed within the RBCZ, provided that:
(1)
Stabilization measures shall not be placed closer
than 50 feet from the top of the bank at bank-full flow or level of
affected surface water bodies unless such disturbance can be completed
within the allowable limits of the Flood Hazard Area Control Act;[1]
[1]
Editor's Note: See N.J.S.A. 58:16A-50 et seq.
(2)
The encroachment shall only be allowed where the applicant
demonstrates that the functional value and overall conditions of the
RBCZ will be maintained to the maximum extent practicable;
(3)
A conceptual project design meeting shall be held
with the appropriate Borough staff and Soil Conservation District
staff to identify necessary stabilization measures; and
(4)
All encroachments proposed under this section shall
be subject to review and approval by the Administrative Authority.
Nonconforming structures and uses of land within
the RBCZ are subject to the following requirements:
A.
Legally existing but nonconforming structures or uses
may be continued.
B.
For all RBCZs:
(1)
Encroachment within the RBCZ shall only be allowed where previous development or disturbance has occurred unless it serves the public health or safety in accordance with § 153-9.
(2)
Existing impervious cover shall not be increased within
the RBCZ as a result of encroachments where previous development or
disturbances have occurred.
(3)
Discontinued nonconforming uses may be resumed any time within three years 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 RBCZ, as measured against the intent and purpose under § 153-1, than the existing or former nonconforming use. This three-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 chapter.
For RBCZs, any use or activity not specifically authorized in § 153-5 or 153-7 shall be prohibited within the RBCZ. By way of example, the following activities and facilities are prohibited:
A.
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.
B.
Storage of any hazardous or noxious materials.
C.
Use of fertilizers, pesticides, herbicides, and/or
other chemicals in excess of prescribed industry standards or the
recommendations of the Soil Conservation District.
E.
Motor or wheeled vehicle traffic in any area, except
as permitted by this chapter.
F.
Parking lots.
H.
New subsurface sewage disposal areas. The expansion
and replacement of existing subsurface sewage disposal areas for existing
uses is permitted.
A.
For RBCZs, 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 chapter) when there is insufficient
room outside the RBCZ for uses permitted by the underlying zoning
and there is no other reasonable or prudent alternative to placement
in the RBCZ, including obtaining variances from setback or other requirements
that would allow conformance with the RBCZ requirements, and provided
the following demonstrations are made:
B.
A variance can only be granted if it is shown that
the activity is in conformance with all applicable local, state, and
federal regulations, and that the exception granted is the minimum
relief necessary to relieve the hardship.
C.
If the above demonstrations are made, then the encroachment
of impervious surfaces (structures or pavement) otherwise permitted
by the underlying zoning is permitted to the extent of 1,500 square
feet total.
A.
When a landowner or applicant disputes the boundaries
of an RBCZ, the landowner or applicant shall submit evidence to the
Planning Board that describes the RBCZ, presents the landowner or
applicant's proposed RBCZ delineation, and presents all justification
for the proposed boundary change.
B.
Within 45 days of a complete submission of subsection A above, the Engineer of the Borough, or appointed representative, shall evaluate all material submitted and shall make a written determination, a copy of which shall be submitted to the Board 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.
Any party aggrieved by any such determination or other decision or determination under Subsection B may appeal to the Planning Board under the provisions of this chapter. The party contesting the location of the RBCZ boundary shall have the burden of proof in case of any such appeal.
D.
Any party aggrieved by any determination or decision
of the Planning Board under this chapter may appeal to the Borough
Council. The party contesting the determination or decision shall
have the burden of proof in case of any such appeal.
E.
Inspections.
(1)
Lands within or adjacent to an identified RBCZ shall
be inspected by the Borough Zoning Officer when:
(2)
The RBCZ may also be inspected periodically by representatives
from the Borough 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.
Conflicts. All other ordinances, parts of ordinances,
or other local requirements that are inconsistent or in conflict with
this chapter are hereby superseded to the extent of any inconsistency
or conflict, and the provisions of this chapter apply.
G.
Severability.
(1)
Interpretation. This chapter shall be so construed
as not to conflict with any provision of New Jersey or federal law.
(2)
Notwithstanding that any provision of this chapter
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)
The provisions of this chapter shall be cumulative
with, and not in substitution for, all other applicable zoning, planning
and land use regulations.
A prompt investigation shall be made by the
appropriate personnel of the Borough of any person or entity believed
to be in violation hereof. If, upon inspection, a condition which
is in violation of this chapter is discovered, a civil action may
be brought 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. Nothing in this chapter
shall be construed to preclude the right of the Borough, 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 chapter
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 chapter. Each day a violation continues may be considered
a separate offense.
