[Added 5-3-2011 by Ord. No. 11-1809]
A.
The Borough Council of the Borough of Highland Park finds that riparian
lands adjacent to rivers, 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 of Highland Park, consistent with the interest of landowners
in making reasonable economic use of parcels of land that include
such designated areas. The purpose of this article is to designate
riparian zones, and to provide for land use regulation therein in
order to protect the rivers, streams, lakes, and other surface water
bodies of the Borough of Highland Park; to protect the water quality
of watercourses, reservoirs, lakes, and other significant water resources
within said Borough; to protect the riparian and aquatic ecosystems
of said Borough; to provide for the environmentally sound use of the
land resources of said Borough, and to complement existing state,
regional, county, and municipal stream corridor protection and management
regulations and initiatives.
B.
The specific purposes and intent of this article are to:
(1)
Restore and maintain the chemical, physical, and biological
integrity of the water resources of said Borough;
(2)
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;
(3)
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;
(4)
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;
(5)
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;
(6)
Maintain base flows in streams and moisture in wetlands;
(7)
Control downstream flooding; and
(8)
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 municipality of the Borough of Highland Park is empowered
to regulate land uses under the provisions of the New Jersey Municipal
Land Use Law, N.J.S.A. 40:55D-I 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. Said Borough is also empowered to adopt and implement this
article 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-1 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 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 article, the following terms shall have the
meanings indicated:
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 the County Soil Conservation District
offices.
The Planning Board, Board of Adjustment, Zoning Official
or Construction Office with all of the powers delegated, assigned,
or assumed by them according to this article.
A person, corporation, government body or other legal entity
applying to the Planning Board, Board of Adjustment, Zoning Official
or the Construction Office proposing to engage in an activity that
is regulated by the provisions of this article, 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 there under 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.
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 or as documented by the Highland
Park Environmental Commission using a Global Positioning System device.
[Amended 2-21-2012 by Ord. No. 12-1829]
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 or as documented by the Highland Park Environmental Commission
using a Global Positioning System device.
[Amended 2-21-2012 by Ord. No. 12-1829]
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 said Borough. 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 three-hundred-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.
A.
Riparian zones adjacent to all surface water bodies shall be protected
from avoidable disturbance and shall be delineated as follows:
(1)
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)
The riparian zone shall be 150 feet wide along both sides of
the following waters not designated as C1 waters:
(a)
Any trout production water and all upstream waters (including
tributaries);
(b)
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)
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)
Any segment of a surface water body flowing through an area
that contains acid producing soils.
(3)
For all other surface water bodies, a riparian zone of 50 feet
wide shall be maintained along both sides of the water.
B.
Riparian zones outside of surface water body.
(1)
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:
(a)
Along a linear fluvial or tidal water, such as a stream or swale,
the riparian zone is measured landward of the feature's centerline;
(b)
Along a nonlinear fluvial water, such as a lake or pond, the
riparian zone is measured landward of the normal water surface limit;
(c)
Along a nonlinear tidal water, such as a bay or inlet, the riparian
zone is measured landward of the mean high water line; and
(d)
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 centerline.
(2)
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.
(3)
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 in Subsection A(1) and (2) hereinabove, 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.
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:
D.
A map of the riparian zones of the entire Borough of Highland Park,
including all land and water areas within its boundaries, which designates
surface water bodies, is included as part of this article, and is
appended as Figure 1.[1] Maps of the Borough on which these designations have been
overlain shall be on file and maintained by the Offices of the Clerk.
This map conforms to all applicable laws, rules and regulations applicable
to the creation, modification and promulgation of zoning maps.
[1]
Editor's Note: Figure 1, a map of the Borough's riparian zones,
is on file in the Borough offices.
E.
It shall be the duty of the Borough of Highland Park Engineer, every second year after the adoption of this article, 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 § 230-204, and by changes made by the New Jersey Department of Environmental Protection in surface water classifications or floodway delineations.
F.
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 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, Borough Council, or its appointed
representative, and, where required, by the New Jersey Department
of Environmental Protection.
G.
The municipal Master Plan provides the legal basis for zoning and
land use regulation at the local level. The technical foundation for
local riparian zones in the Borough shall be incorporated into the
Master Plan. A technical report on the need for riparian zones in
the Borough shall be adopted as part of the Master Plan. The technical
report shall include the following information: a statement setting
forth the rationale and need to protect riparian zones, and reference
to the methods used to designate and delineate riparian zones.
H.
Exemptions. Instead of the riparian zone protection requirements
above, the applicant must demonstrate compliance with one of the following:
(1)
The proposed project or activity is not in the riparian zone established at § 230-197 hereinabove;
(2)
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)
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)
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)
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. 58:1023.11a et
seq. or the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. § 9601 et seq.;
(6)
The proposed disturbance is for redevelopment that does not
exceed the limits of existing impervious surfaces;
(7)
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
A.
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.
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 article, 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 Borough 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 subsection. The following
uses shall be permitted within a riparian zone:
(1)
Open space uses that are primarily passive in character shall
be permitted by right to extend into a riparian zone, provided that
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)
Fences, for which a permit has been issued by the Construction
Code Official, to the extent required by applicable law, rule or regulation.
(3)
Crossings by farm vehicles and livestock, recreational trails,
roads, railroads, storm water 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)
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.
A.
All encroachments proposed into riparian zones in C1 waters shall
comply with the requirements of 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, and shall be subject to review and approval by the New Jersey
Department of Environmental Protection, unless exempt.
B.
For all other riparian zones, the following conditions shall apply:
(1)
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)
Portions of lots within the riparian zone 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 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 Registrar of
Deeds and Mortgages of Middlesex County must be submitted to the Borough.
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 Borough 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 minimis
changes to accommodate necessary regulatory approvals upon the written
consent of the Borough, 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)
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)
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 onsite. 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
(c)
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 Registrar of Deeds and Mortgages of Middlesex County.
(3)
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 noninvasive tree and plant species to the maximum extent practicable in accordance with an approved riparian zone management plan, described in § 230-203 hereinabove.
(4)
For building lots which exist as of the date of adoption of
this article, 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)
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)
If stormwater discharged outside of and flowing through a riparian zone cannot comply with the Standard for Off Site Stability cited in Subsection B(5) hereinabove, 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.
Nonconforming structures and uses of land within the riparian
zone are subject to the following requirements:
A.
Legally existing but nonconforming structures or uses may be continued.
B.
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.
For all other riparian zones:
(1)
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)
Existing impervious cover shall not be increased within the
riparian zone as a result of encroachments where previous development
or disturbances have occurred.
(3)
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 § 230-194, 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 article.
A.
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.
For other riparian zones, any use or activity not specifically authorized in § 230-198 or 230-200 shall be prohibited within the riparian zone. By way of example, the following activities and facilities are prohibited:
(1)
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)
Storage of any hazardous or noxious materials.
(3)
Use of fertilizers, pesticides, herbicides, and/or other chemicals
in excess of prescribed industry standards or the recommendations
of the Soil Conservation District.
(5)
Motor or wheeled vehicle traffic in any area, except as permitted
by this article.
(6)
Parking lots.
(8)
New subsurface sewage disposal system areas. The expansion and
replacement of existing subsurface sewage disposal system areas for
existing uses is permitted.
(9)
Residential grounds or lawns, except as otherwise permitted
pursuant to this article.
A.
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.
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 article) 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)
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 article
and that this inability to yield a reasonable economic return results
from unique circumstances peculiar to the subject property which:
(a)
Do not apply to or affect other property in the immediate vicinity;
(b)
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)
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)
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)
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.
If such a variance 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 § 230-203.
A.
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.
Requirements of proposed plan.
(1)
The landowner, applicant, or developer shall submit to the Borough,
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:
(a)
Existing vegetation;
(b)
Field-delineated surface water bodies;
(c)
Field-delineated wetlands;
(d)
The one-hundred-year floodplain;
(e)
Flood hazard areas, including floodway and flood fringe areas,
as delineated by the New Jersey Department of Environmental Protection;
(f)
Soil classifications as found on soil surveys;
(g)
Existing subdrainage areas of site with HUC (Hydrologic Unit
Code) 14 designations;
(h)
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%.
(2)
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 Borough.
C.
The Plan shall be reviewed and must be approved by the Borough of
Highland Park Engineer, in consultation with the Environmental Commission,
and if trees and shrubs are involved, with the Shade Tree Advisory
Committee, as part of the subdivision and land development process.
D.
The riparian zone management plan must include management provisions
in narrative and/or graphic form specifying:
(1)
The manner in which the area within the riparian zone will be
owned and by whom it will be managed and maintained.
(2)
The conservation and/or land management techniques and practices
that will be used to conserve and protect the riparian zone, as applicable.
(3)
The professional and personnel resources that are expected to
be necessary, in order to maintain and manage the riparian zone.
(4)
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, noninvasive 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 Borough of Highland Park Engineer,
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 Borough of Highland
Park Engineer 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, U.S. Fish
and Wildlife Service and/or state or federal forest agencies.
E.
A riparian zone management plan is not required where the riparian
zone is not being disturbed and conservation easements/deed restrictions
arc applied to ensure there will be no future clearing or disturbance
of the riparian zone.
F.
Performance of the riparian zone management plan shall be guaranteed
for two years by a surety, such as a bond, cash or letter of credit,
which shall be provided to the Borough prior to the Borough issuing
any permits or approving any uses relating to the applicable use or
activity.
A.
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 Highland Park 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)lii.
B.
Within 45 days of a complete submission of a boundary interpretation
application, the Highland Park Engineer, or appointed representative,
shall evaluate all material submitted and shall make a written determination,
a copy of which shall be submitted to said 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.
Any party aggrieved by any such determination or other decision or determination under Subsection B above may appeal to the Zoning Officer under the provisions of this Section. The party contesting the location of the riparian zone boundary shall have the burden of proof in case of any such appeal.
D.
Any party aggrieved by any determination or decision of the Zoning
Officer under this Section may appeal to the New Jersey Superior Court.
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 riparian zone shall
be inspected by the Highland Park Engineer when:
(2)
The riparian zone 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.
A.
All other ordinances, parts of ordinances, or other local requirements
that are inconsistent or in conflict with this article are hereby
superseded to the extent of any inconsistency or conflict, and the
provisions of this article apply. This article shall be so construed
as not to conflict with any provision of New Jersey or federal law.
B.
Notwithstanding that any provision of this article is held to be
invalid or unconstitutional by a court of competent jurisdiction,
all remaining provisions of this article shall continue to be of full
force and effect.
C.
The provisions of this article 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 article 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. Nothing in this article 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 this
article 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 article. Each day a violation continues shall
be considered a separate offense.
