A.
Section 30 of the Highlands Act identifies as exempt, specific activities, improvements and development projects affecting lands within the Highlands Region. Such activities, improvements and projects may be proposed as a component of any type of land use application submitted to the municipality for approval, including but not limited to zoning permit applications, building permit applications, and applications for development (as defined at § 106-8). Any such qualifying activity, improvement or development project is exempt, with regard specifically to that activity, improvement or development project, from the requirements of the Highlands Act, the Highlands RMP, the NJDEP Preservation Area Rules, and any amendments to the Township's Master Plan, development regulations, or other regulations adopted pursuant to the approval of Township's Petition for Plan Conformance by the Highlands Council. Such an exemption specifically applies to any Highlands Area land use ordinance adopted by the Township pursuant to the Highlands Council's approval of Township's Petition for Plan Conformance.
B.
Where any application submitted to the municipality for approval proposes to rely upon a Highlands Act exemption, the applicant must, as a condition of application completeness, and prior to review or approval of the application by the applicable municipal authority, provide sufficient evidence that the proposed activity, improvement, or development project in fact qualifies as a Highlands Act exemption. Such evidence shall consist of either a state agency exemption determination or a municipal exemption determination (See § 106-10B(1) or (2) below.) indicating that the proposed activity, improvement, or development project qualifies for a Highlands Act exemption.
(1)
State agency exemption determination. State agency exemption determinations shall consist of either a Highlands applicability determination issued by the NJDEP for a Preservation Area proposal, or a Highlands exemption determination issued by the Highlands Council for a Planning Area proposal. State agency determinations may be requested with regard to any Highlands Act exemption; however, for applications involving any exemption not identified at § 106-11 below, a state agency exemption determination is required. Any applicant seeking a formal exemption determination for a capital or other project of any state entity or local government unit, or for any other publicly owned or controlled land or facility, also must request a state agency exemption determination.
(2)
Municipal exemption determination. For an application involving any of the specific exemptions listed in § 106-11 below, the applicant may request a municipal exemption determination. The applicant may rely upon the findings of a municipal exemption determination to the same extent as would apply to an exemption determination issued by the Highlands Council or the NJDEP.
Effective as of the date on which the municipality receives
written authorization from the Highlands Council to proceed, an applicant
may seek a municipal exemption determination for the Highlands Act
exemptions listed hereunder.
A.
Exemption 1. The construction of a single-family dwelling, for an
individual's own use or the use of an immediate family member,
on a lot owned by the individual on the date of enactment of the Highlands
Act (August 10, 2004) or on a lot for which the individual entered
into a binding contract of sale to purchase on or before May 17, 2004.
B.
Exemption 2. The construction of a single-family dwelling on a lot
in existence on the date of enactment of the Highlands Act (August
10, 2004), provided that the construction does not result in the ultimate
disturbance of one acre or more of land or a cumulative increase in
impervious surface by 1/4 acre or more.
(1)
A municipal exemption determination indicating that an applicant qualifies under Highlands Act Exemption 2 shall require approval and filing of a deed notice along with a site plan delineating the total exempt area and the extent of the disturbance recognized in the municipal exemption determination. (See § 106-13 below.) Municipal exemption determinations in such instances shall not take effect until the applicant has provided proof of filing of the approved deed notice.
C.
Exemption 4. The reconstruction of any building or structure for
any reason within 125% of the footprint of the lawfully existing impervious
surfaces on the site, provided that the reconstruction does not increase
the lawfully existing impervious surface by 1/4 acre or more. This
exemption shall not apply to the reconstruction of any agricultural
or horticultural building or structure for a nonagricultural or nonhorticultural
use.
(1)
For purposes of this chapter, this exemption shall not be construed
to permit multiple one-hundred-twenty-five-percent footprint expansions,
but rather, to permit one or more reconstruction activities cumulatively
resulting in a maximum one-hundred-twenty-five-percent increase in
the footprint of the impervious surfaces lawfully existing on the
site, provided they do not cumulatively exceed the 1/4 acre limitation.
Any determination of whether the expansion of impervious cover meets
the statutory criteria for the exemption must account for the preexisting
impervious cover, and such expansion must be contiguous to the location
of the existing impervious cover. See In re August 16, 2007, Determination
of NJDEP ex rel. Christ Church, 414 N.J. Super 592 (App. Div. 2010),
certif. denied, 205 N.J. 16 (2010).
(2)
For Preservation Area determinations, the applicable date of lawful
existence shall be August 10, 2004, the date of enactment of the Highlands
Act. For Planning Area determinations, the date of lawful existence
shall coincide with the effective date of the municipally adopted
Highlands Area Checklist Ordinance or Highlands Area Land Use Ordinance,
whichever is earlier.
D.
Exemption 5. Any improvement to a single-family dwelling in existence
on the date of enactment of the Highlands Act (August 10, 2004), including
but not limited to an addition, garage, shed, driveway, porch, deck,
patio, swimming pool or septic system.
E.
Exemption 6. Any improvement, for nonresidential purposes, to a place
of worship owned by a nonprofit entity, society or association, or
association organized primarily for religious purposes, or a public
or private school, or a hospital, in existence on the date of enactment
of the Highlands Act (August 10, 2004), including but not limited
to new structures, an addition to an existing building or structure,
a site improvement, or a sanitary facility.
F.
Exemption 7. An activity conducted in accordance with an approved
woodland management plan pursuant to Section 3 of the "Farmland Assessment
Act," P.L. 1964, c. 48 (N.J.S.A. 54:4-23.3) or a forest stewardship
plan approved pursuant to section 3 of P.L. 2009, c. 256 (N.J.S.A.
13:1L-31), or the normal harvesting of forest products in accordance
with a forest management plan or forest stewardship plan approved
by the State Forester.
G.
Exemption 8. The construction or extension of trails with nonimpervious
surfaces on publicly owned lands or on privately owned lands where
a conservation or recreational use easement has been established.
Municipal exemption determinations regarding Highlands Act exemptions
shall be issued by the Township Planning/Zoning Administrator, Planner,
and/or Engineer. The exemption designee(s) shall be authorized to
issue municipal exemption determinations on behalf of the municipality,
and shall only begin to do so after satisfactory completion of a Highlands
Council training class for which the individual(s) has/have received
formal certification from the Highlands Council.
A.
Updates to training certification. In the event of programmatic changes,
updated information, or modifications to procedures, updated training
certification may be required of exemption designees in order to maintain
qualifications for providing municipal exemption determinations. The
Highlands Council will provide training modules on an as-needed basis,
to provide base training to new employees, and/or to further the expertise
of already-certified individuals. Exemption designees and the municipalities
they serve will be advised of any need for upgraded training, which
will be provided and funded by the Highlands Council.
B.
Interim determinations. For the duration of any period during which the municipality is without a qualified exemption designee(s) due to changes in personnel or other extenuating circumstances, applicants seeking Highlands Act exemption determinations shall be referred to the NJDEP or the Highlands Council, for a state agency determination pursuant to § 106-10B(1), above.
A.
Municipal exemption applications. Requests for municipal exemption determinations shall be submitted on forms provided by the Planning/Zoning Administrator and shall be accompanied by sufficient information and documentary evidence to demonstrate whether the proposed activity, improvement or development project qualifies for the applicable exemption. Required submission materials applicable to each exemption appear at § 106-17, below.
B.
Completeness determination. The exemption designee shall review the
application and all accompanying materials to determine whether sufficient
information has been submitted to make a determination on the application.
In the event of a finding that the application is incomplete, the
exemption designee shall, within 10 business days of receipt, issue
such findings in writing to the applicant, indicating what information
is required to properly consider the application.
C.
Time for determination. The exemption designee shall issue municipal
exemption determinations within 20 business days of receipt of a complete
application. The exemption designee may consult with the Executive
Director (or applicable designee) of the Highlands Council as needed
in making any exemption determination, however. In such circumstance,
the exemption designee shall seek such assistance within the twenty-day
period and shall issue the determination within at least 10 business
days of receiving the requested guidance. In no case shall failure
to meet this date constitute approval of the exemption.
D.
Determinations. All municipal exemption determinations shall be provided in writing, shall certify to the applicability or inapplicability of the exemption, and shall, include a statement of the rationale for the decision. Any municipal exemption determination certifying to the applicability of Highlands Act Exemptions No. 2 shall be contingent upon submission of proof of filing of the required deed notice, as set forth at § 106-13F, below.
E.
Notice of determination required. The exemption designee shall provide
copies of all municipal exemption determinations, including a copy
of the full application, to the Highlands Council and for decisions
regarding lands in the Highlands Preservation Area, to the NJDEP,
in either case, within 10 business days of issuance.
F.
Deed notice for Exemption No. 2. Any municipal exemption determination that certifies to the applicability of Highlands Act Exemption No. 2 (§ 106-11 above), shall be issued conditionally, pending fulfillment of the requirement that a deed notice be recorded in the office of the County Clerk or Register, as applicable, indicating the extent of the exemption that has been consumed. The deed notice shall incorporate each of the components listed below and the applicant shall provide a copy of the filed deed notice to the Highlands Council within five business days of filing.
(1)
Clear identification of the name(s) and address(es) of the owner(s)
in fee of the property;
(2)
Designated tax block and lot number(s), street address(es), municipality
and county of location of the property;
(3)
Reference to the municipal exemption determination (by date, numbering
if applicable) issued and under which the deed notice is being filed;
(4)
Description of the approved area of ultimate disturbance and the
impervious surface area, with verification that these remain below
the statutory limits;
(5)
For properties of one acre or more in area, metes and bounds delineation
indicating the portion of the property for which the ultimate disturbance
has been authorized;
(6)
Agreement to abide by the ultimate disturbance and impervious surface
limits imposed, any furtherance thereof rendering the municipal exemption
determination null and void; and
(7)
Notice that the owner(s) and subsequent owner(s) and lessees shall
cause all leases, grants, and other written transfers of interest
in the property to contain provisions expressly requiring all holders
thereof to take the property subject to the limitations therein set
forth.
A municipal exemption determination may be appealed by any affected
person/entity by filing a notice of appeal within 20 calendar days
of issuance or receipt of said determination, whichever is later,
specifying the grounds therefor. Appeals must be filed with the NJDEP
in the case of any Preservation Area exemption, and with the Highlands
Council, in the case of any Planning Area exemption. All appeals shall
be copied to the exemption designee, who shall immediately transmit
to the NJDEP or the Highlands Council, as applicable, copies of the
notice of appeal, the municipal exemption determination application,
and all supplemental materials constituting the record that the exemption
designee relied upon in issuing the municipal exemption determination.
Where the municipal exemption determination deems an activity, improvement
or development project exempt, the filing of an appeal to the NJDEP
or the Highlands Council shall stay all proceedings in furtherance
of its approval by the municipality.
Issuance of a municipal exemption determination that certifies
to the applicability of a Highlands Act exemption shall recognize
the applicant's exemption from the provisions of the RMP, NJDEP
Preservation Area Rules, and any municipal ordinances and requirements
adopted under the authority of the Highlands Act to achieve Highlands
Plan conformance. The exemption is restricted solely to the extent
of the specified activity, improvement, or development project as
described in the language of the Highlands Act exemption, or to any
lesser activity, improvement, or development project as proposed and
certified through a municipal exemption determination application.
Any activity, improvement, or development project, or any part thereof,
that is not specifically listed as an exemption or exceeds the limits
of an exemption, remains subject to all of the above regulatory programs
to the full extent of the respective applicability of each. Issuance
of a Highlands exemption determination shall not relieve the applicant
from securing all other required federal, state, or local approvals.
The following fee shall be paid by every applicant for a municipal
exemption determination pursuant to this chapter.
All applications shall be accompanied by the municipal exemption
determination application form, the applicable fees, and the information
listed below, as applicable to the particular exemption or exemption(s)
being sought by the applicant. All references to professional preparers
indicated herein shall be construed to include any and all qualified
individuals licensed, certified, or otherwise eligible and authorized
to complete such work, in accordance with the applicable laws and
legal requirements of the State of New Jersey, including but not limited
to the MLUL (N.J.S.A. 40:55D-1 et seq.) and Title 13 of the New Jersey
Administrative Code, Law and Public Safety. Where the exemption designee
finds that any submission item is not necessary to address the evidentiary
requirements that must be satisfied for issuance of an exemption determination,
either because alternate items have been provided by the applicant,
or the relevant information is readily available through records,
maps, or any other documents on file in the offices of the municipality,
the exemption designee may waive the applicant's obligation to
submit such information.
A.
Exemption 1.
(1)
A copy of a deed, closing or settlement statement, title policy,
tax record, mortgage statement or any other official document showing
that the lot was legally owned by the applicant on or before August
10, 2004, and indicating the lot and block as designated by the municipal
tax mapping, the municipality and county in which the lot is located,
and the street address;
(2)
If the applicant did not own the lot, a copy of the binding contract
of sale executed by the seller and the applicant on or before May
17, 2004, for the lot on which the house is to be constructed; and
(3)
A certification by the applicant stating that the single-family dwelling
proposed for construction on the lot specified and described therein
by tax lot and block, municipality and county of location, and street
address, is intended for the applicant's own use or the use of
an immediate family member as identified therein by name and relationship
to the applicant.
B.
Exemption 2.
(1)
A copy of the recorded deed or plat showing that the lot was created
on or before August 10, 2004, or proof of subdivision approval on
or before August 10, 2004;
(2)
A property survey certified by a licensed New Jersey professional
land surveyor indicating the property boundary lines and overall lot
size, and showing what structures currently exist on the lot, if any;
(3)
A parcel plan certified by a licensed New Jersey professional engineer
showing all existing and proposed development, including all structures,
grading, clearing, impervious surface and disturbance, and including
the calculations supporting the claim that impervious surfaces and
areas of disturbance are within the limits necessary for Exemption
2; and
C.
Exemption 4.
(1)
A parcel plan certified by a licensed New Jersey professional engineer
depicting:
(a)
All existing property improvements, including all structures,
grading, clearing, impervious surfaces and limits of disturbance,
lawfully existing on the site as of August 10, 2004, for Preservation
Area projects and as of the effective date of the municipal Highlands
Area Checklist Ordinance or Highlands Area Land Use Ordinance, whichever
is earlier, for Planning Area projects; and
(b)
All proposed development including all structures, impervious
surfaces, clearing limits, and limits of disturbance, including grading;
and
(2)
A copy of any official documentation of the original date of construction
of the building or otherwise establishing the lawfulness of existing
impervious surfaces.
D.
Exemption 5.
(1)
A copy of any official documentation proving the single-family dwelling
was in existence on August 10, 2004;
(2)
A description of the proposed improvement; and
(3)
A certification from the applicant that the property and all improvements
will continue to be used for single-family dwelling purposes.
E.
Exemption 6.
(1)
A copy of any official documentation indicating that the place of
worship, public or private school or hospital was in existence on
August 10, 2004;
(2)
For improvements to a place of worship, documentation showing that
the entity, society or association, or association organized primarily
for religious purposes has nonprofit status;
(3)
A site plan certified by a licensed New Jersey professional engineer
depicting:
(a)
All existing property improvements including all structures,
grading, clearing, impervious surfaces and limits of disturbance,
existing on the site on August 10, 2004; and
(b)
All proposed development including all structures, impervious
surfaces, clearing limits, and limits of disturbance, including grading.
F.
Exemption 7.
(1)
For a private landowner with an approved woodland management plan
or forest stewardship plan:
(a)
A copy of the applicant's tax bill showing that the site
has farmland assessment tax status under the New Jersey Farmland Assessment
Act, N.J.S.A. 54:4-23.1 et seq., if applicable;
(b)
A brief description of the total area of woodlands that is the
subject of the approved woodland management plan or forest stewardship
plan;
(c)
A brief description of the length of time that the area to be
managed has been in use for woodland management or forest stewardship
plan; and
(d)
A copy of the approved woodland management plan or forest stewardship
plan.
(2)
For the normal harvesting of forest products in accordance with a
forest management plan or forest stewardship plan approved by the
State Forester:
(a)
A brief description of the total area where the normal harvesting
of forest products occurs;
(b)
A brief description of the length of time that the area to be
managed has been in use for normal harvesting of forest products;
and
(c)
A copy of a forest management plan or forest stewardship plan
approved by the State Forester.
G.
Exemption 8.
(1)
A site plan certified by a licensed New Jersey Professional Engineer
showing the proposed trail construction with details including the
location, and width of existing and proposed trails and those off-site
trails to which they connect, if any;
(2)
A written description of the nonimpervious materials to be used;
and
(3)
For privately owned property, a copy of a deed for the property and
the conservation or recreational use easement on the property.