The purpose of this article is to set forth the procedural and
substantive requirements by which the municipality will issue Highlands
Act exemption determinations. Such determinations pertain only to
Highlands Act Exemptions 1, 2, 4, 5, 6, 7, and 8. Highlands Act exemption
determinations indicate whether proposed activities, improvements
or development projects affecting lands located within the Township
Highlands Area are exempt from the Highlands Water Protection and
Planning Act ("Highlands Act," N.J.S.A. 13:20-1 et seq.) and are therefore
exempt from the Highlands Water Protection and Planning Council's
("Highlands Council") Regional Master Plan, from the New Jersey Department
of Environmental Protection's (NJDEP) Highlands Water Protection and
Planning Act Rules ("Preservation Area Rules," N.J.A.C. 7:38-1 et
seq.), and from any amendments to the Township's Master Plan, development
regulations, or other regulations adopted pursuant to the approval
of the Township's Petition for Plan Conformance by the Highlands Council.
The provisions of this article pertain to activities, improvements
and development projects involving lands located within the Township
Highlands Area. The Highlands Area comprises that portion of the municipality
for which the applicable provisions of the Township Master Plan, land
use ordinances and other pertinent regulations have been deemed by
the Highlands Council to be in conformance with the Highlands Regional
Master Plan (RMP). The provisions of this article shall not be construed
to alleviate any person or entity from the provisions and requirements
of any other applicable ordinances, rules, or regulations of the municipality
or from any other applicable law, regulation, or requirement of any
county, state, or federal authority having jurisdiction. Nor shall
the provisions of this article deprive any person or entity from seeking
a Highlands exemption determination from the NJDEP or the Highlands
Council.
This article is adopted under the authority of the Highlands
Act and the New Jersey Municipal Land Use Law (MLUL, N.J.S.A. 40:55D-1
et seq.). In the Highlands Act, the Legislature identified numerous
categories of activities that are exempt from the Act, the RMP, the
Preservation Area Rules, and any amendments to a master plan, development
regulations, or other regulations adopted by a local government to
conform them with the RMP. See N.J.S.A. 13:20-28. The Legislature
granted the Highlands Council the authority to administer the plan
conformance process and to approve, reject, or approve with conditions
municipal plan conformance petitions. See N.J.S.A. 13:20-14, 13:20-15.
The Legislature, through the MLUL, granted authority to New Jersey
municipalities to govern land use and development within their borders
and, through the Highlands Act, established requirements for Highlands
municipalities to conform their land use and development regulations
with the RMP. In a July 19, 2012, Memorandum of Understanding (MOU)
between the Highlands Council and the NJDEP, the Council and the NJDEP
recognized the circumstances in which it would be appropriate for
conforming, Highlands Council-certified municipalities to make determinations
regarding specified Highlands Act exemptions.
For purposes of the Highlands Preservation Area exemption review
and determination process, the following definitions shall apply:
AGRICULTURAL IMPERVIOUS COVER
Agricultural or horticultural buildings, structures or facilities
with or without flooring, residential buildings and paved areas, but
not meaning temporary coverings. (N.J.S.A. 13:20-3)
AGRICULTURAL OR HORTICULTURAL DEVELOPMENT
Construction for the purposes of supporting common farmsite
activities, including but not limited to the production, harvesting,
storage, grading, packaging, processing, and the wholesale and retail
marketing of crops, plants, animals, and other related commodities
and the use and application of techniques and methods of soil preparation
and management, fertilization, weed, disease, and pest control, disposal
of farm waste, irrigation, drainage and water management, and grazing.
(N.J.S.A. 13:20-3)
AGRICULTURAL OR HORTICULTURAL USE
The use of land for common farmsite activities, including
but not limited to the production, harvesting, storage, grading, packaging,
processing, and the wholesale and retail marketing of crops, plants,
animals, and other related commodities and the use and application
of techniques and methods of soil preparation and management, fertilization,
weed, disease, and pest control, disposal of farm waste, irrigation,
drainage and water management, and grazing. (N.J.S.A. 13:20-3)
APPLICANT
Any entity applying to the Board of Health, Planning Board,
Zoning Officer, Construction Official or other applicable authority
of the municipality for permission or approval to engage in an activity
that is regulated by the provisions of this article.
APPLICATION FOR DEVELOPMENT
The application form and all accompanying documents required
by ordinance for approval of a subdivision plat, site plan, planned
development, conditional use, zoning variance, or direction of the
issuance of a permit pursuant to Section 25 or Section 27 of P.L.
1975, c. 291 (N.J.S.A. 40:55D-34 or N.J.S.A. 40:55D-36).
BUILDING PERMIT
Used interchangeably with the term "construction permit";
see the definition below.
CONSTRUCTION PERMIT
A permit issued pursuant to the New Jersey Uniform Construction Code, Chapter
23 of Title 5 of the New Jersey Administrative Code (N.J.A.C. 5:23-1 et seq.), providing authorization to begin work subject to the conditions and requirements established under the provisions therein.
DEVELOPMENT
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any building or other structure, or
of any mining excavation or landfill, and any use or change in the
use of any building or other structure, or land or extension of use
of land, for which permission may be required pursuant to the MI.UL.
(N.J.S.A. 13:20-3; N.J.S.A. 40:55D-4)
DISTURBANCE
The placement of impervious surface, the exposure or movement
of soil or bedrock, or the clearing, cutting, or removing of vegetation.
(N.J.S.A. 13:20-3)
DISTURBANCE, ULTIMATE
The total existing or proposed area of disturbance of a lot,
parcel, or other legally designated (or otherwise legally recognized)
tract or subdivision of land, for the purpose of, and in connection
with, any human activity, property improvement, or development, including
the surface area of all buildings and structures, all impervious surfaces,
and all associated land disturbances such as excavated, filled, and
graded areas, and all lawn and landscape areas. Ultimate disturbance
shall not include areas of prior land disturbance which at the time
of evaluation:
A.
Contain no known man-made structures (whether above or below
the surface of the ground) other than such features as old stone rows
or farm field fencing; and
B.
Consist of exposed rock outcroppings or areas which, through
exposure to natural processes (such as weathering, erosion, siltation,
deposition, fire, flood, growth of trees or other vegetation) are
no longer impervious or visually obvious, or ecologically restored
areas which will henceforth be preserved as natural areas under conservation
restrictions.
ENVIRONMENTAL LAND USE OR WATER PERMIT
A permit, approval, or other authorization issued by the
Department of Environmental Protection pursuant to the Freshwater
Wetlands Protection Act, P.L. 1987, c. 156 (N.J.S.A. 13:9B-1 et seq.);
the Water Supply Management Act, P.L. 1981, c. 262 (N.J.S.A. 58:1A-1
et seq.); the Water Pollution Control Act, P.L. 1977, c. 74 (N.J.S.A.
58:10A-1 et seq.); the Realty Improvement Sewerage and Facilities
Act (1954), P.L. 1954, c. 199 (N.J.S.A. 58:11-23 et seq.): the Water
Quality Planning Act, P.L. 1977, c. 75 (N.J.S.A. 58:11A-1 et seq.);
the Safe Drinking Water Act, P.L. 1977, c. 224 (N.J.S.A. 58:12A-1
et seq.); or the Flood Hazard Area Control Act, P.L. 1962, c. 19 (N.J.S.A.
58:16A-50 et seq.). (N.J.S.A. 13:20-3)
FARM MANAGEMENT UNIT
A parcel or parcels of land, whether contiguous or noncontiguous,
together with agricultural or horticultural buildings, structures
and facilities, producing agricultural or horticultural products and
operated as a single enterprise. (N.J.S.A. 13:20-3)
FARMSITE
A farm management unit as defined above.
FOREST MANAGEMENT PLAN
A written guidance document describing the forest resources
present on a property, the landowner's management goals and objectives,
and the recommended practices or activities to be carried out over
time on the land. This tool is used to evaluate a forestland's current
state and provide a management process which, over time, meets the
landowner's objectives, while maintaining health and vigor of the
resource. Forest management plans are typically written for a ten-year
period. (RMP, Glossary)
HIGHLANDS APPLICABILITY DETERMINATION
A determination made by the NJDEP (pursuant to N.J.A.C. 7:38-2.4)
indicating whether a project proposed for the Preservation Area is
a major Highlands development, whether any such major Highlands development
is exempt from the Highlands Act, and whether the project is consistent
with the applicable Areawide Water Quality Management Plan.
HIGHLANDS AREA
That portion of the municipality for which the land use planning
and regulation are in conformance with, or are intended or proposed
to be in conformance with, the Highlands RMP.
HIGHLANDS PRESERVATION AREA APPROVAL (HPAA)
An approval issued by the NJDEP pursuant to 7:38-6 pertinent
to a regulated activity in the Highlands Preservation Area and including
an HPAA that contains a waiver pursuant to N.J.S.A. 13:20-33b.
IMMEDIATE FAMILY MEMBER
A spouse, child, parent, sibling, aunt, uncle, niece, nephew,
first cousin, grandparent, grandchild, father-in-law, mother-in-law,
son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister,
half brother, or half sister, whether the individual is related by
blood, marriage, or adoption. (N.J.S.A. 13:20-3)
IMPERVIOUS SURFACE
Any structure, surface, or improvement that reduces or prevents
absorption of stormwater into land, including, but not limited to,
porous paving, paver blocks, gravel, crushed stone, decks, patios,
elevated structures, and other similar structures, surfaces, or improvements.
(N.J.S.A. 13:20-3)
IMPERVIOUS SURFACES, CUMULATIVE
The total area of all existing or proposed impervious surfaces
situated or proposed to be situated within the boundary lines of a
lot, parcel, or other legally recognized subdivision of land, expressed
either as a measure of land area such as acreage or square feet or
as a percentage of the total lot or parcel area.
MAJOR HIGHLANDS DEVELOPMENT
Except as otherwise provided pursuant to Subsection a of
Section 30 of the Highlands Act ("Exemptions"): 1) any nonresidential development in the Preservation
Area; 2) any residential development in the Preservation Area that
requires an environmental land use or water permit (from the NJDEP,
see definition above) or that results in the ultimate disturbance
of one acre or more of land or a cumulative increase in impervious
surface by 1/4 acre or more; 3) any activity undertaken or engaged
in the Preservation Area that is not a development but results in
the ultimate disturbance of 1/4 acre or more of forested area or that
results in a cumulative increase in impervious surface by 1/4 acre
or more on a lot; or 4) any capital or other project of a state entity
or local government unit in the Preservation Area that requires an
environmental land use or water permit (from the NJDEP, see definition
above), or that results in the ultimate disturbance of one acre or
more of land or a cumulative increase in impervious surface by 1/4
acre or more. Major Highlands development shall not include any agricultural
or horticultural development or agricultural or horticultural use.
Solar panels shall not be included in any calculation of impervious
surface. (As defined by the Highlands Act, N.J.S.A. 13:20-1 et seq.,
as amended.)
MASTER PLAN
For purposes of this article, all references to the "Township
Master Plan," "master plan," or "Master Plan" refer to the Municipal
Master Plan, as defined in the MLUL (N.J.S.A. 40:55D-5), as adopted
by the Township Planning Board.
MASTER PLAN, HIGHLANDS REGIONAL (RMP)
For purposes of this article, all references to the Highlands
Regional Master Plan (RMP) shall be by use of the words "Highlands
Regional Master Plan," "Highlands RMP," "Regional Master Plan," or
"RMP."
NJDEP
New Jersey Department of Environmental Protection.
NJDEP PRESERVATION AREA RULES
The regulations established by the NJDEP to implement requirements
of the Highlands Act, titled "Highlands Water Protection and Planning
Act Rules" and codified at N.J.A.C. 7:38-1 et seq.
PLANNING AREA
Lands within the Highlands Region that are not located in
that portion designated by the Highlands Act as the "Preservation
Area" (see metes and bounds description at N.J.S.A. 13:20-7b). For
purposes of this article, this terminology shall also be used to refer
to Planning Area lands located solely within the Township.
PRESERVATION AREA
Lands within the Highlands Region that are located in that
portion designated by the Highlands Act as the "Preservation Area"
(see metes and bounds description at N.J.S.A. 13:20-7b). For purposes
of this article, this terminology shall also be used to refer to Preservation
Area lands located solely within the Township.
SOLAR PANEL
An elevated panel or plate, or a canopy or array thereof,
that captures and converts solar radiation to produce power and includes
flat plate, focusing solar collectors, or photovoltaic solar cells
and excludes the base or foundation of the panel, plate, canopy, or
array. (N.J.S.A. 13:20-3)
STRUCTURE
A combination of materials to form a construction for occupancy,
use or ornamentation whether installed on, above, or below the surface
of a parcel of land.
State agency exemption determinations shall consist of a Highlands
applicability determination issued by the NJDEP. State agency determinations
may be requested with regard to any Highlands Act exemption, however
for applications involving any exemption not identified herein, 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.
For an application involving any of the specific exemptions
listed herein, 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 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. 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 article, this exemption shall not be construed
to permit multiple footprint expansions of 125% but rather to permit
one or more reconstruction activities cumulatively resulting in a
maximum increase of 125% in the footprint of the impervious surfaces
lawfully existing on the site, provided that 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)
The applicable date of lawful existence shall be August 10,
2004, the date of enactment of the Highlands Act.
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 (the State
Park and Forestry Resources Act, 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 Engineer, Zoning Officer, Planning
Administrator or Planning Consultant. The exemption designees 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 individuals
have received formal certification from the Highlands Council.
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.
For the duration of any period during which the municipality
is without a qualified exemption designee due to changes in personnel
or other extenuating circumstances, applicants seeking Highlands Act
exemption determinations shall be referred to the NJDEP for a state
agency determination.
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.
All appeals shall be copied to the exemption designee, who shall immediately
transmit to the NJDEP 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 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 Highlands Regional
Master Plan, 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.
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
(4)
A metes and bounds description of the area of the lot to be
disturbed, limited to less than one acre and a draft conservation
restriction or deed notice to cover the balance of the lot.
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; 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.