[HISTORY: Adopted by the Mayor and Council of the Borough
of Middlesex 4-12-2011 by Ord. No. 1793. Amendments noted where
applicable.]
GENERAL REFERENCES
Environmental Commission — See Ch. 32.
Uniform construction codes — See Ch. 168.
Flood damage prevention — See Ch. 224.
Land development — See Ch. 248.
Soil removal erosion and sediment control — See Ch. 347.
Steep slopes — See Ch. 352.
Stormwater management — See Ch. 355.
Zoning — See Ch. 420.
A.
The governing body of Middlesex Borough 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 Middlesex 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
zones and to provide for land use regulation therein in order to protect
the streams, lakes, and other surface water bodies of Middlesex Borough;
to protect the water quality of watercourses, reservoirs, lakes, and
other significant water resources within Middlesex Borough; to protect
the riparian and aquatic ecosystems of Middlesex Borough; to provide
for the environmentally sound use of the land resources of Middlesex
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 chapter are to:
(1)
Restore and maintain the chemical, physical, and biological integrity
of the water resources of Middlesex 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 Middlesex Borough 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. Middlesex 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-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. 58:10-23.11 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:
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 local Soil Conservation District offices.
The Planning Board or Board of Adjustment or Construction
Office with all of the powers delegated, assigned, or assumed by them
according to statute or ordinance.
A person, corporation, government body or other legal entity
applying to the Planning Board, 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 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 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.
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.
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.
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 Middlesex 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.
Measurement of ripaian zone.
(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 center
line;
(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 center line.
(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 § 325-4A(1) or (2) above, 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 municipality of Middlesex
Borough, including all land and water areas within its boundaries,
which designates surface water bodies, is included as part of this
chapter, and is appended as Figure 1.[1] Maps of the municipality on which these designations have
been overlain shall be on file and maintained by the Office of the
Clerk of Middlesex Borough. This map conforms to all applicable laws,
rules and regulations applicable to the creation, modification and
promulgation of zoning maps.
[1]
Editor's Note: Said map is on file in the Borough offices.
E.
It shall be the duty of the Engineer of Middlesex Borough, every second year after the adoption of this chapter, 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 § 325-11, 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 Middlesex
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, 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 this municipality should be incorporated into
the Master Plan. A technical report on the need for riparian zones
in Middlesex Borough may be adopted as part of the Master Plan, N.J.S.A.
40:55D- 28b(11). The technical report should 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:
(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. 58:10-23.11a 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 that 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 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 municipality 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
section. 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
Office, to the extent required by applicable law, rule or regulation.
(3)
Crossings by farm vehicles and livestock, recreational trails, roads,
railroads, stormwater 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 rule 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 Middlesex 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 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 New Jersey 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 that 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 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
municipality. 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 Clerk of the applicable county or the registrar of deeds and mortgages
of the applicable 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 § 325-10.
(4)
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 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 § 325-6B(5), 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 § 325-1, 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 chapter.
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 § 325-5 or 325-7 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 chapter.
(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 chapter.
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 chapter) 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 that 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 chapter
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 an exception 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 § 325-10 below.
D.
The Borough of Middlesex may require a financial contribution be
made to the open space or municipal stormwater management plan mitigation
plan fund in exchange for this requirement.
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.
Plan contents.
(1)
The landowner, applicant, or developer shall submit to the Borough
Attorney, 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 Middlesex Borough.
C.
The plan shall be reviewed and must be approved by the engineer of
Middlesex Borough, in consultation with the Environmental Commission,
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 engineer of Middlesex Borough, 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 engineer of
Middlesex Borough 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
are 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 Middlesex Borough prior to the Middlesex
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 Borough Engineer 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)1ii.
B.
Within 45 days of a complete submission of Subsection A above, the Engineer of Middlesex Borough, or appointed representative, shall evaluate all material submitted and shall make a written determination, a copy of which shall be submitted to the Borough Engineer 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 Borough Engineer under the provisions of this ordinance. 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 Borough
Engineer under this chapter may appeal to the governing body of Middlesex
Borough. 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 Borough Engineer when:
(2)
The riparian zone may also be inspected periodically by representatives
from Middlesex 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 Middlesex 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 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 Middlesex 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 shall be considered a separate offense.
Any person(s) who is found to be in violation of the provisions
of this chapter shall be subject to a fine not to exceed $5,000.
