Any restrictions or requirements with respect to buildings or land, which appear in other ordinances of the Township or are established by law and which are greater than those set forth herein, shall take precedence over the provisions of this chapter.
Except as herein otherwise provided:
A. 
No building or structure shall be erected and no existing building shall be moved, structurally altered, added to or enlarged, nor shall any land or building be designed, used, or intended to be used, for any purpose or in any manner other than as specified among the uses hereinafter listed as permitted in the zone in which such building or land is located and meeting the requirements as set forth in the Schedule of Regulations.[1]
[1]
Editor's Note: The Schedule of Regulations is included as an attachment to this chapter.
B. 
No building shall be erected, no existing buildings shall be altered, enlarged or rebuilt, nor shall any open space surrounding any building be encroached upon or reduced in any manner, except in conformity to the yard, lot area, building location, percentage of lot coverage, off-street parking space, and such other regulations hereinafter designated in this chapter for the zone in which such building or open space is located.
C. 
No off-street parking area, loading or unloading area provided to meet the minimum off-street parking, loading or unloading requirements for one use or structure, shall be considered as providing off-street parking, loading or unloading area for a use or structure on any other lot, unless specifically permitted elsewhere in this chapter.
D. 
No subdivision may be approved unless each lot contained in said subdivision complies with all the requirements of the zone in which said lot is located, or unless a variance has been granted therefrom.
E. 
No use shall be considered a permitted use or a conditional use in a zone district unless included as such in the particular zone district.
Wherever the depth of lots is established by existing street patterns in any residential zone, the depth requirements of the zone shall be waived as long as all setback lines are maintained.
A. 
Every principal building shall be built upon a lot with frontage upon a public street improved to meet the Township requirements or for which such improvement has been guaranteed by the posting of a performance guarantee pursuant to this chapter unless relief has been granted under the provisions of N.J.S.A. 40:55D-36.
B. 
Where a building lot has frontage on a street, which the Master Plan or the Official Map of the Township indicates is proposed for right-of-way widening, the required front yard setback shall be measured from such proposed right-of-way line.
A. 
No yard or other open space provided around any building for the purpose of complying with the provisions of this chapter shall be considered as providing a yard or open space for any other buildings, and no yard or other open space on one lot shall be considered as providing a yard or open space for a building on any other lot.
B. 
All yards facing a public street shall be considered front street side or street rear yards for the purpose of establishing required setbacks for main and accessory buildings.
C. 
Every part of a required yard shall be open and unobstructed from its lowest level to the sky, except for the ordinary projections allowed by the State Uniform Construction Code including, but not limited to, sills, belt courses, chimneys, flues, buttresses, ornamental features, and eaves; provided, however, that none of the aforesaid projections shall project into the minimum required yards more than 24 inches, unless otherwise permitted by this chapter. Unroofed entrance porches or terraces which do not rise above the height of the floor level of the ground floor may extend into any yard, providing the total area of all such porches, which extend into such yards, does not exceed 1,000 square feet and maintain a minimum yard setback of 10 feet except in the R-10, RTF, R-7, R-5, R-O zone districts, and R-15 nonconforming 5,000 to 10,000 square feet lots and R-15 nonconforming greater-than 5,000 square feet lots, where the minimum yard setback shall be five feet.
[Amended 11-16-2015 by Ord. No. 2015-3155]
A. 
On all corner lots, the depth of all required street side setbacks shall not be less than the 50% of the required front setback within the zone. The following method shall be used to determine front, side and rear lot lines on corner and through lots:
(1) 
On corner lots in single- and two-family residential zones, the street which the front door faces or is proposed to face shall be the front yard. Where this cannot be determined due to a diagonal or rear-facing dwelling, the Zoning Officer shall determine which shall be considered the front yard.
(2) 
On corner lots in nonresidential and multifamily residential zones, the front yard shall be that which faces the street with the higher roadway classification. Where the roadway classifications are the same, the front yard shall face the street where the primary access is located or proposed, as determined by the Zoning Officer.
(3) 
On all through lots, both yards facing a public street shall be considered front yards for the purpose of determining required setbacks for main and accessory buildings, except as otherwise provided in this chapter.
(4) 
In no case can the front yard on a lot with more than one street frontage be that frontage which abuts an unimproved street.
B. 
The yard abutting a street, other than the front yard as established herein, shall be considered as either a street side yard or a street rear yard.
C. 
Each street frontage of a lot created as a result of a subdivision approved after the effective date of this chapter fronting on more than one street shall conform to the minimum required street frontage for such a lot in the applicable zone district as specified in the schedule of yard area and building requirements.
Unless more stringent regulations are provided by other provisions of this chapter, at the intersection of two or more streets, no hedge, fence, screening strip or wall higher than 30 inches above curb level, nor any obstruction to vision, other than a post not exceeding one foot in diameter, shall be permitted on any lot within the triangular area formed by two intersecting street lines bounding said lot, or the projection of such lines, and by a line connecting a point, on each line located 50 feet from the intersection of the street lines. Sight triangle areas shall be maintained, trimmed or cleared in accordance with Chapter 428, Streets and Sidewalks, Article III, Trimming of Plant Life Near Intersections, of the Code of the Township of Middletown.
[Amended 4-18-2005 by Ord. No. 2005-2815; 7-18-2005 by Ord. No. 2005-2825; 3-5-2007 by Ord. No. 2007-2900; 5-21-2007 by Ord. No. 2007-2916; 6-18-2012 by Ord. No. 2012-3066]
Unless otherwise specified in this chapter, accessory buildings shall conform to the following regulations as to their locations on the lot:
A. 
An accessory building attached to a principal building shall comply in all respects with the yard requirements of this chapter for principal buildings within the appropriate zone.
B. 
Detached storage sheds up to 150 square feet shall have a one-foot side or rear yard setback, where there is a fence at least four feet high separating the lots. Where no such fence exists, a three-foot setback is required.
C. 
Accessory buildings in residential zones shall not exceed 16 feet in height, except that farm-related buildings such as barns and stables can be built up to 25 feet in height and permitted accessory apartment or dwellings can be permitted to equal the height of principal structures in that zone, except that in all cases building height shall be measured to the peak of the roof and not the mean point as applied to principal structures. Accessory buildings in nonresidential zones shall not exceed 25 feet in height.
D. 
No detached accessory structure over 100 square feet shall be less than five feet from any principal structure.
E. 
No accessory structure shall be used as a residence, except where permitted by ordinance as either an accessory dwelling under the Township's affordable housing program or for domestic employees of the tenant or owner of the premises. Accessory structures used for domestic help or employees shall be subject to a deed restriction recorded with the County Clerk's Office, limiting the use of the structure accordingly. Any accessory structure that is to be used as a dwelling unit shall be subject to the same requirements as a single-family dwelling for the purpose of obtaining certificates of occupancy.
F. 
No accessory building which is intended to be occupied for dwelling purposes shall be occupied before the principal building.
G. 
No accessory structure shall be placed within an established front, street side, or street rear yard area except in the Residential R-110, R-130 and R-220 Zone Districts.
H. 
Accessory buildings or structures must be located on the same lot as the principal use to which they are accessory.
I. 
Fixed-location generators, equipment associated with heating, ventilation, air conditioning, and the like shall comply with the following setback requirements:
(1) 
For residential land uses on lots containing 21,780 square feet or less, the minimum required setback shall be five feet.
(2) 
For residential land uses on lots containing more than 21,780 square feet, the minimum required setback shall be 50% of the required accessory structure setback for the applicable zone district.
(3) 
For nonresidential and mixed land uses, the required accessory structure setback for the relevant zone district shall apply.
J. 
In order for an accessory structure to be considered attached, it must share a common wall with the principal structure. Connection of an accessory structure to the principal structure via fully enclosed breezeways, canopies and walkways shall not be sufficient unless the common wall encompasses more than 50% of the wall of the accessory structure.
[Added 11-16-2015 by Ord. No. 2015-3155]
Any lot utilized for single-family or two-family dwelling purposes shall not contain more than one principal building.
The provisions of this chapter shall not apply to customary underground essential services as defined in § 540-203, except that all facilities such as pumping stations, repeater stations and electric substations, which require a building above ground, or any other aboveground appurtenance of any type more than 40 feet high, shall require approval as a conditional use subject to the provisions of this chapter.
Where two or more lots, created by the filing of a map pursuant to the Map Filing Law prior to establishment of the Planning Board, have any contiguous lines and are in single ownership and one or more of the lots is nonconforming in any aspect, the lots involved shall be considered to be an undivided parcel for the purposes of this chapter, and no portion of said parcel shall be conveyed or divided except through the filing of an approved subdivision in accordance with the provisions of this chapter.
A. 
No structure shall extend higher than the limit provided in each zone created hereunder for building height.
B. 
The height limitations created hereunder shall not apply to spires, belfries, cupolas or domes not used for human occupancy. The height limitation also should not apply to parapets, walls or cornices extending not more than four feet above the building height limit.
C. 
The height limitations created hereunder shall apply to chimneys, ventilators, skylights, tanks, stair towers, elevator towers, appurtenances usually carried above the antennas attached to a building, except that the same may exceed said height limitations by not more than 15 feet, except that skylights, heating and air-conditioning equipment and ventilators may exceed the height limitation by no more than 10 feet. Such features shall not exceed, in total coverage, 10% of the total roof area.
D. 
Freestanding, noncommercial radio and television antennas and flagpoles may exceed the height limits created hereunder by not more than 15 feet.
Wherever feasible, all of the following shall be preserved in its natural state:
A. 
Floodway areas as defined by the Middletown Township Storm Drainage Master Plan; United States Department of Housing and Urban Development, Emergency Flood Insurance Program; U.S. Army Corps of Engineers; or the New Jersey Department of Environmental Protection.
B. 
Areas containing a significant number of specimen trees determined by the Environmental Commission or the Municipal Agency.
C. 
Existing watercourses, ponds, marshes and swamps.
D. 
Wetlands and wetland transitional areas as defined by the New Jersey Wetlands Act of 1970 (N.J.S.A. 13:9A-1 et seq.) and the Freshwater Wetlands Act of 1987 (N.J.S.A. 13:9B-1 et seq.) and delineated on wetlands maps prepared by the New Jersey Department of Environmental Protection and Energy.
E. 
Steep slopes in excess of 15%.
F. 
Flora and fauna on the New Jersey and/or Federal Endangered Species list.
G. 
Dunes. Development is prohibited on dunes, except for development that has no prudent or feasible alternative in an area other than a dune, and that will not cause significant adverse long-term impacts on the natural functioning of the beach and dune system, either individually or in combination with other existing or proposed structures, land disturbance activities. Examples of acceptable activities are:
(1) 
Demolition and removal of paving and structures.
(2) 
Limited designated accessways for pedestrian and authorized motor vehicles between public streets and the beach that provide for the minimum feasible interference with the beach and dune system and are oriented so as to provide the minimum feasible threat of breaching or overtopping as a result of storm surge or wave run-up.
(3) 
Limited stairs, walkways, pathways and boardwalks to permit access across dunes to beaches, provided they cause minimum feasible interference with the beach and dune system.
(4) 
The planting of native vegetation to stabilize dunes.
(5) 
Sand fencing, either a brush-type barricade or a picket type, to accumulate sand and aid in dune formation.
H. 
Beaches. Development is prohibited on beaches, except for development that has no prudent or feasible alternative in an area other than a beach, and that will not cause significant adverse long-term impacts on the natural functioning of the beach and dune system, either individually or in combination with other existing or proposed structures, land disturbances or activities. Examples of acceptable activities are:
(1) 
Demolition and removal of paving structures.
(2) 
Dune creation and related sand fencing and planting of vegetation for dune stabilization.
(3) 
The reconstruction of existing amusement and fishing piers and boardwalks.
(4) 
The construction of new fishing piers.
(5) 
Temporary recreation structures for public safety such as first aid and lifeguard stations.
Whenever a person acquires title to the land under water adjacent to his property by virtue of a riparian grant from the State of New Jersey, then the grant area shall automatically be zoned the same as the upland property adjacent to the grant; provided, however, that any part of this grant not filled, graded and stabilized pursuant to a valid construction permit, shall not be applicable to meeting the minimum lot area for the governing zone.
Where applicable, the Municipal Agency shall require as a condition of site plan approval that the owner convey to the municipality drainage easements, conservation easements, sight triangle easements and/or shade tree and utility easements.
A. 
Solid wastes from single- and two-family homes, if stored outdoors, shall be placed in metal or plastic receptacles with tight-fitting covers.
B. 
Such receptacles shall not be stored or placed within any front yard area prior to the time at which solid wastes are permitted to be placed at the curblines for collection. Such receptacles may be stored in either rear or side yard areas, but if stored within a side yard area, they shall be screened from view of adjoining properties and street areas with planting or fencing. Solid wastes which are to be picked up shall conform to the requirements established by the Department of Public Works, Parks, and Engineering for garbage and trash collection.
The dumping of refuse, waste material, or other substances is prohibited in all districts within the municipality.
No nonresidential use with the exception of farms shall store materials of any kind outdoors in any district except in connection with the construction of a structure to be erected on the premises unless specifically permitted elsewhere in this chapter.
A. 
Retail and/or wholesale business uses shall not permanently display goods for sale, including motor vehicles, outdoors except in accordance with a site plan approved by the Planning Board.
B. 
Such outdoor displays shall only be permitted where the goods displayed are the merchandise of a business included within a structure located on the site, unless in accordance with a permit or other approval issued therefor by the municipality. Uses such as flea markets where two or more concessionaires, proprietors or businesses display goods for the same out of doors shall not be permitted in any zoning district within the municipality except in accordance with Subsection D below.
C. 
Temporary sales and outdoor display of goods may be permitted where the goods displayed are the merchandise of a business included within a structure located on the site. Such temporary sales and display shall be in accordance with a permit issued by the Zoning Officer. No business shall hold more than five such sales per year, nor shall any one sale exceed one week in duration.
D. 
Temporary flea markets and sales operated by nonprofit groups such as churches may be permitted where the goods displayed are on a site which is already developed as a principal use of the nonprofit group. Such sales shall be in accordance with a permit issued by the Zoning Officer. No nonprofit group shall hold more than five such sales per year, nor shall any one sale exceed one week in duration.
E. 
Coin-operated vending machines shall not be located farther than two feet from a related business structure.
F. 
Goods for sale, displayed or stored outdoors, shall not be located closer than 25 feet to any street right-of-way or 15 feet to any side or rear line, except in conjunction with temporary sidewalk or other types of outdoor sales.
G. 
Temporary sales of Christmas trees.
(1) 
No person, partnership or other entity may establish a "temporary Christmas tree lot" without first having obtained a permit authorizing said use from the office of the Construction Official.
(2) 
All applicants shall provide the Construction Official of the Township of Middletown the following information:
(a) 
Name, address (no P.O. boxes) and telephone number of the applicant/operator of the lot.
(b) 
The location at which applicant shall conduct business.
(c) 
The dates and hours of operation.
(d) 
The name and telephone number of a representative of the applicant to be contacted in the case of an emergency.
(e) 
The name and address of the person or firm with whom the applicant has contracted to remove its garbage and other debris.
(f) 
The name and address of the owner of the property, if the applicant is not the property owner.
(g) 
A consent of owner form indicating that the applicant has permission to conduct business on said premises.
(h) 
A sketch depicting the proposed layout and location of the proposed businesses. The plan shall also show all proposed electrical connections and lighting locations.
(i) 
State sales tax identification number.
(j) 
For purposes of Subsection G(13) herein, a copy of applicant's Section 15-501.3.C. or other document evidencing a bona fide charitable status.
(3) 
Applications for temporary Christmas tree lots shall only be submitted by the actual business or property owner of the proposed location.
(4) 
Upon payment of a $200 application fee, the Construction Official shall review the application. The Construction Official shall seek input on the request from the Planning and Police Departments. If then the Construction Official determines that the proposed location can adequately support the business, has adequate parking available, and will not pose a hazard, the permit will be issued. The Construction Official shall have 30 days from the date an application is filed to make a decision. Applications shall not be accepted after October 1.
(5) 
Prior to the issuance of a permit, the applicant shall post a $500 cleanup guarantee, in cash deposit or bond. Said money shall be returned to the applicant upon closing of the business and clearing of the property in order to return it to its previous condition.
(6) 
The permit, when issued, shall be valid from the Friday immediately following Thanksgiving of each year, and shall expire on December 31 of the same year. All cleanup activities must be completed by the applicant on or before January 8 of the following year. In the event the applicant fails to complete the cleanup on or before January 8 of the following year, the Township may perform the cleanup and deduct the cost thereof from the cleanup guarantee.
(7) 
Upon issuance of the permit, the vendor shall prominently display same at its location during business hours and shall, upon request from officials of the Township of Middletown, exhibit same to such officials.
(8) 
Storage of Christmas trees or other materials on site within trailers or other storage type structures shall not be permitted.
(9) 
The temporary Christmas tree lots shall be limited to those properties which contain existing businesses. Such uses shall not be permitted on vacant lots except where a vacant lot is immediately adjacent to an existing business and is owned by the same business or property owner.
(10) 
The Construction Official shall also review the proposed method of lighting and providing temporary power to the temporary Christmas tree lot.
(11) 
Open fires shall not be permitted on any temporary Christmas tree lot.
(12) 
Except for provision in Subsection G(8), (9), (10) and (11), this subsection shall not apply to businesses who offer for sale in their ordinary course of business, plants, trees, or other related items as long as the sales occur on the same property as their business location. Such businesses shall include, but not be limited to, florists, landscape nurseries, and farms.
(13) 
Any nonprofit or charitable organization which desires to sell any of the goods described herein for the express purpose of raising funds in connection with their charitable endeavors shall obtain the necessary permit but shall not be required to pay the $200 application fee. The $500 cleanup guarantee must still be posted.
(14) 
Temporary Christmas tree lots shall be permitted a maximum of two temporary signs. Signs may be double-faced and located on the ground or attached to a structure. In no case shall any sign exceed 25 square feet, nor shall any sign be located at a point higher than the highest building on the property.
A. 
Within any residential district, no building with a permitted home professional office or home occupation shall be constructed or altered so as to be inharmonious to the residential character of adjacent structures.
B. 
The types of construction not considered to be residential in character include storefront type of construction, garage doors (larger than needed for passenger vehicles or light commercial vehicles), and unfinished concrete blocks or cinder block wall surfaces.
The exterior elevations shall be arranged and outer walls on nonresidential buildings shall be faced with materials approved by the Planning Board in conjunction with site plan approval. The architecture of all buildings shall be compatible with structures on adjacent lands and in the neighborhood.
The outdoor storage of an unoccupied recreational vehicle, motor home, travel trailer, camper or small boat shall be permitted on single-family properties, provided that:
A. 
Travel trailer, camper or small boat shall not exceed 28 feet in length and eight feet in width.
B. 
Only one travel trailer or camper and one small boat, except for boats propelled only by oars or paddles (rowboats, canoes, kayaks, and dinghies), shall be permitted to be stored outdoors at a single-family residence. No boat or recreation vehicle shall be stored within the front yard setback area or within 10 feet of a side property line, except that in the R-7 and R-15 Districts, one may be stored within the front or side yard setbacks. No recreational vehicle or boat may be stored that is in a state of substantial disrepair or derelict.
C. 
Any such vehicles stored in accordance with this section shall not be occupied and shall not be provided with utility connections.
D. 
Permanent or temporary overnight occupancy or use of a trailer, travel trailer, motor home, boat or recreational vehicle is not permitted in any zone, except that, in emergency situations, such occupancy or use may be permitted by the Construction Official for a period as determined by the Construction Official. Where the Construction Official approves such emergency occupancy, he shall so advise the Township Committee and give the location, period and reasons for the approval. The Committee may approve or disapprove such occupancy or may impose such additional limitations to the occupancy as it deems appropriate. For good cause shown, the Committee may extend the period of occupancy.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
A. 
No commercial motor vehicle having a rated maximum gross vehicle weight (GVW) in excess of 10,000 pounds or having more than two axles shall be parked or stored overnight on any occupied property which is primarily used for residential purposes or on any vacant property in a residentially zoned area, except for vehicles engaged in construction, parked or stored on an active construction site.
B. 
No more than one motor vehicle with commercial vehicle registration having a weighted maximum gross vehicle weight (GVW) of 10,000 pounds or less shall be parked or stopped overnight on any occupied property which is primarily used for residential purposes, except for vehicles engaged in construction, parked or stored on an active construction site. Said vehicle must be utilized by at least one of the occupants of the residence. This provision shall not apply to passenger vehicles with commercial vehicle registration.
[Amended 4-18-2005 by Ord. No. 2005-2815]
C. 
The aforementioned regulations for commercial vehicle storage shall not apply to vehicles located on and necessary to the operation of a farm.
No building, structure or use shall be permitted within areas defined as wetlands by the New Jersey Wetlands Act of 1970 (N.J.S.A. 13:9A-1 et seq.) and the Freshwater Wetlands Act of 1987 (N.J.S.A. 13:9B-1 et seq.) and delineated on the wetlands maps prepared by the New Jersey Department of Environmental Protection and Energy or delineated in accordance with regulations promulgated under the applicable act, except in accordance with a permit issued under the applicable act.
A. 
A developer applying for site plan or subdivision approval pursuant to Article IV of this chapter may be required to submit a soil erosion and sediment control plan as is required by the Freehold Soil Conservation District. In determining whether an applicant should be required to submit said plan, the Municipal Agency shall consider the applicable state regulations, the extent of land disturbance existing and proposed, the topography of the site and size of the proposed structure and/or building.
B. 
Soil erosion and sediment control plans shall be reviewed and certified by the Freehold Soil Conservation District when in conformance with the Standards for Soil Erosion and Sediment Control.
C. 
The Municipal Agency may seek the assistance of the Freehold Soil Conservation District in the review of such plans and may deem as approved those plans which have been reviewed and certified by the Freehold Soil Conservation District.
A. 
In residential zones, including the R-O Residence, and in the Office Zone, the following antenna structures shall be permitted as accessory structures to a principal residential structure or permitted conditional use on the same lot. No such antenna structures may serve more than one residential lot unless the supporting structure conforms to the minimum regulations on the lot on which it is located and no connecting cables cross property other than that owned by the persons served by the antenna.
(1) 
Two conventional television and/or radio antenna structures attached to a building, provided that they do not exceed the height limitations for the zone by more than 15 feet. Antenna structures operated by holders of a Federal Communications Commission Amateur Radio License may exceed the height limitations for the zone by 35 feet. Such antennas which exceed 20 feet above the point of attachment to the building shall be built to withstand winds of 60 miles per hour.
(2) 
Freestanding, noncommercial, mast or pole type radio and/or television antenna structures and one tower-type radio and/or television antenna structure, provided that they shall only be placed in the rear yard area, shall be located no closer than 15 feet to any property line, and may exceed the height limitations for the zone by not more than 15 feet. Antenna structures operated by holders of a Federal Communications Commission Amateur Radio License may exceed the height limitations for the zone by 35 feet. Such structures over 20 feet in height shall be built to withstand winds of 60 miles per hour.
(3) 
One satellite dish antenna structure erected on a secure ground-mounted foundation, provided that it shall only be placed in the rear yard, shall conform to the setbacks for a principal structure in the zone, and shall not exceed 16 feet in height or 12 feet in diameter. Any wires or connecting cables shall be buried underground unless the antenna is located immediately adjacent to and mounted no more than seven feet from the structure being served. Each such structure shall be screened by fencing, other structures and/or nondeciduous plantings of sufficient number and height to obstruct any clear view of the antenna from any adjacent conforming residential property, any residential zone, or any public street.
B. 
In business, manufacturing, and office-research zones, the following antenna structures shall be permitted as accessory structures to a principal use, other than a residential use, on the same lot. No such antenna structures may serve more than one lot unless the supporting structure conforms to the minimum regulations on the lot on which it is located and no connecting cables cross property other than that owned by the persons served by the antenna.
(1) 
Conventional television and/or radio antenna structures attached to each building, provided that no antenna structure shall exceed the height limitations for the zone by more than 15 feet. Such structures which exceed 20 feet above the point of attachment to the building shall be built to withstand winds of 60 miles per hour.
(2) 
Freestanding, conventional, noncommercial radio and television antenna structures, provided that such antenna structures shall only be placed in the rear yard, shall adhere to setback and yard requirements for accessory structures in the particular zone, but in no case shall be closer than 50 feet to any residential property line or zone boundary or closer than 15 feet to any other property line and shall not exceed the height limitations for the zone by more than 15 feet. Such structures over 20 feet in height shall be built to withstand winds of 60 miles per hour.
(3) 
Satellite dish antennas. Such antenna structures shall be erected on a secure ground-mounted foundation located in the rear yard or may be mounted on a flat roof, provided that it is no higher than 15 feet above the roof line and is concealed from public view. No antenna structure shall exceed 12 feet in diameter. Ground-mounted antenna structures shall conform to the setbacks for a principal structure in the zone, shall not exceed 16 feet in height, and shall in no case be located closer than 50 feet to a residential property line or zone boundary. Wires or connecting cable for ground-mounted antenna shall be buried underground. Each ground-mounted antenna shall be screened by fencing, other structures and/or nondeciduous plantings of sufficient number and height to obstruct any clear view of the structure from any adjacent conforming residential property, any residential zone or any public street.
[Amended 4-18-2005 by Ord. No. 2005-2815; 9-21-2009 by Ord. No. 2009-2989; 12-17-2012 by Ord. No. 3073; 4-15-2013 by Ord. No. 2013-3082; 6-4-2018 by Ord. No. 2018-3221; 6-6-2022 by Ord. No. 2022-3346]
A. 
Scope and administration.
(1) 
Title. These regulations, in combination with the flood provisions of the Uniform Construction Code (UCC) N.J.A.C. 5:23 (hereinafter "Uniform Construction Code," consisting of the Building Code, Residential Code, Rehabilitation Subcode, and related codes, and the New Jersey Flood Hazard Area Control Act (hereinafter "FHACA"), N.J.A.C. 7:13, shall be known as the "Floodplain Management Regulations of Township of Middletown" (hereinafter "these regulations").
(2) 
Scope. These regulations, in combination with the flood provisions of the Uniform Construction Code and FHACA, shall apply to all proposed development in flood hazard areas established in § 540-527B of these regulations.
(3) 
Purposes and objectives. The purposes and objectives of these regulations are to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific flood hazard areas through the establishment of comprehensive regulations for management of flood hazard areas, designed to:
(a) 
Protect human life and health.
(b) 
Prevent unnecessary disruption of commerce, access, and public service during times of flooding.
(c) 
Manage the alteration of natural floodplains, stream channels and shorelines.
(d) 
Manage filling, grading, dredging and other development which may increase flood damage or erosion potential.
(e) 
Prevent or regulate the construction of flood barriers which will divert floodwater or increase flood hazards.
(f) 
Contribute to improved construction techniques in the floodplain.
(g) 
Minimize damage to public and private facilities and utilities.
(h) 
Help maintain a stable tax base by providing for the sound use and development of flood hazard areas.
(i) 
Minimize the need for rescue and relief efforts associated with flooding.
(j) 
Ensure that property owners, occupants, and potential owners are aware of property located in flood hazard areas.
(k) 
Minimize the need for future expenditure of public funds for flood control projects and response to and recovery from flood events.
(l) 
Meet the requirements of the National Flood Insurance Program for community participation set forth in Title 44 CFR 59.22.
(4) 
Coordination with building codes. Pursuant to the requirement established in N.J.A.C. 5:23, the Uniform Construction Code, that the Township of Middletown administer and enforce the state building codes, the Township Committee of the Township of Middletown does hereby acknowledge that the Uniform Construction Code contains certain provisions that apply to the design and construction of buildings and structures in flood hazard areas. Therefore, these regulations are intended to be administered and enforced in conjunction with the Uniform Construction Code.
(5) 
Ordinary building maintenance and minor work. Improvements defined as ordinary building maintenance and minor work projects by the Uniform Construction Code including nonstructural replacement-in-kind of windows, doors, cabinets, plumbing fixtures, decks, walls, partitions, new flooring materials, roofing, etc., shall be evaluated by the Floodplain Administrator through the floodplain development permit to ensure compliance with the Substantial Damage and Substantial Improvement, § 540-527C(16), of this section.
(6) 
Warning. The degree of flood protection required by these regulations is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur. Flood heights may be increased by man-made or natural causes. Enforcement of these regulations does not imply that land outside the special flood hazard areas, or that uses permitted within such flood hazard areas, will be free from flooding or flood damage.
(7) 
Other laws. The provisions of these regulations shall not be deemed to nullify any provisions of local, state, or federal law.
(8) 
Violations and penalties for noncompliance. No structure or land shall hereafter be constructed, re-located to, extended, converted, or altered without full compliance with the terms of this section and other applicable regulations. Violation of the provisions of this section by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a violation under N.J.S.A. 40:49-5. Any person who violates this section or fails to comply with any of its requirements shall be subject to one or more of the following: a fine of not more than $2,000, imprisonment for a term not exceeding 90 days or a period of community service not exceeding 90 days.
Each day in which a violation of an ordinance exists shall be considered to be a separate and distinct violation subject to the imposition of a separate penalty for each day of the violation as the Court may determine except that the owner will be afforded the opportunity to cure or abate the condition during a thirty-day period and shall be afforded the opportunity for a hearing before the court for an independent determination concerning the violation. Subsequent to the expiration of the thirty-day period, a fine greater than $2,000 may be imposed if the court has not determined otherwise, or if upon reinspection of the property, it is determined that the abatement has not been substantially completed.
Any person who is convicted of violating an ordinance within one year of the date of a previous violation of the same ordinance and who was fined for the previous violation shall be sentenced by a court to an additional fine as a repeat offender. The additional fine imposed by the court upon a person for a repeated offense shall not be less than the minimum or exceed the maximum fine fixed for a violation of the ordinance but shall be calculated separately from the fine imposed for the violation of the ordinance.
(9) 
Solid-waste disposal in a flood hazard area. Any person who has unlawfully disposed of solid waste in a floodway or floodplain who fails to comply with this section or fails to comply with any of its requirements shall upon conviction thereof be fined not more than $2,500 or up to a maximum penalty by a fine not exceeding $10,000 under N.J.S.A. 40:49-5.
(10) 
Abrogation and greater restrictions. These regulations supersede any ordinance in effect in flood hazard areas. However, these regulations are not intended to repeal or abrogate any existing ordinances including land development regulations, subdivision regulations, zoning ordinances, stormwater management regulations, or building codes. In the event of a conflict between these regulations and any other ordinance, code, or regulation, the more restrictive shall govern.
B. 
Applicability.
(1) 
General. These regulations, in conjunction with the Uniform Construction Code, provide minimum requirements for development located in flood hazard areas, including the subdivision of land and other developments; site improvements and installation of utilities; placement and replacement of manufactured homes; placement of recreational vehicles; new construction and alterations, repair, reconstruction, rehabilitation or additions of existing buildings and structures; substantial improvement of existing buildings and structures, including repair of substantial damage; installation of tanks; temporary structures and temporary or permanent storage; utility and miscellaneous Group U buildings and structures; and certain building work exempt from permit under the Uniform Construction Code; and other buildings and development activities.
(2) 
Establishment of flood hazard areas. The Township of Middletown was accepted for participation in the National Flood Insurance Program on February 2, 1984, and adopted it original Floodplain Management Ordinance on February 14, 1984.
The National Flood Insurance Program (NFIP) floodplain management regulations encourage that all federal, state, and local regulations that are more stringent than the minimum NFIP standards take precedence in permitting decisions. The FHACA requires that the effective Flood Insurance Rate Map, most recent preliminary FEMA mapping and flood studies, and Department delineations be compared to determine the most restrictive mapping. The FHACA also regulates unstudied flood hazard areas in watersheds measuring 50 acres or greater in size and most riparian zones in New Jersey. Because of these higher standards, the regulated flood hazard area in New Jersey may be more expansive and more restrictive than the FEMA special flood hazard area. Maps and studies that establish flood hazard areas are on file at the Office of the Floodplain Administrator, specifically 1 Kings Highway, Middletown, NJ 07748.
The following sources identify flood hazard areas in this jurisdiction and must be considered when determining the best available flood hazard data area:
(a) 
Effective flood insurance study. Special flood hazard areas (SFHAs) identified by the Federal Emergency Management Agency in a scientific and engineering report entitled FLOOD INSURANCE STUDY NUMBER 34025CV001B, dated September 25, 2009, and the accompanying Flood Insurance Rate Maps (FIRM) identified in Table 102. (1) whose effective date is September 25, 2009, are hereby adopted by reference.
Table 102.2(1)
Map Panel No.
Effective Date
34025C0034F
2009-09-25
34025C0042F
2009-09-25
34025C0044F
2009-09-25
34025C0055F
2009-09-25
34025C0061F
2009-09-25
34025C0062F
2009-09-25
34025C0063F
2009-09-25
34025C0064F
2009-09-25
34025C0066F
2009-09-25
34025C0067G
2018-06-20
34025C0068G
2022-06-15
34025C0069G
2022-06-15
34025C0086G
2018-06-20
34025C0088H
2022-06-15
34025C0157F
2009-09-25
34025C0159F
2009-09-25
34025C0176F
2009-09-25
34025C0177F
2009-09-25
34025C0178F
2009-09-25
34025C0179F
2009-09-25
34025C0181G
2022-06-15
(b) 
Federal best available information. Township of Middletown shall utilize federal flood information as listed in the table below that provides more detailed hazard information, higher flood elevations, larger flood hazard areas, and results in more restrictive regulations. This information may include, but is not limited to, preliminary flood elevation guidance from FEMA (such as Advisory Flood Hazard Area Maps, work maps or Preliminary FIS and FIRM). Additional federal best available studies issued after the date of this section must also be considered. These studies are listed on FEMA's Map Service Center. This information shall be used for floodplain regulation purposes only.
Table 102.2(2)
Map Panel No.
Preliminary Date
1415
1-31-2014
1379
1-31-2014
1468
1-31-2014
1465
1-31-2014
1372
1-31-2014
1426
1-30-2015
1477
1-30-2015
1439
1-31-2014
1390
1-31-2014
1476
1-30-2015
1475
1-31-2014
1420
1-30-2015
1409
1-31-2014
1469
1-31-2014
1401
1-30-2015
(c) 
Other best available data. Township of Middletown shall utilize high water elevations from flood events, groundwater flooding areas, studies by federal or state agencies, or other information deemed appropriate by the Township of Middletown. Other "best available information" may not be used which results in less restrictive flood elevations, design standards, or smaller flood hazard areas than the sources described in § 540-527B(2)(a) and (b), above. This information shall be used for floodplain regulation purposes only.
Optional higher standard: The community may develop more restrictive flood zone mapping with larger areal extents or more restrictive elevations by resolution and incorporating these maps into this section. A record shall be kept in this section of the more restrictive map in the following table, renumbering subsequent tables, as necessary.
Table 102.2(3)
Map Description
Ordinance Number
Date Effective
Date Withdrawn and Ordinance Number
(d) 
State-regulated flood hazard areas. For state-regulated waters, the NJ Department of Environmental Protection (NJDEP) identifies the flood hazard area as the land, and the space above that land, which lies below the Flood Hazard Area Control Act Design Flood Elevation, as defined in § 540-527I, and as described in the New Jersey Flood Hazard Area Control Act at N.J.A.C. 7:13. An FHACA flood hazard area exists along every regulated water that has a drainage area of 50 acres or greater. Such area may extend beyond the boundaries of the special flood hazard areas (SFHAs) as identified by FEMA. The following is a list of New Jersey State studied waters in this community under the FHACA, and their respective map identification numbers.
Table 102.2(3 or 4) List of State Studied Waters
Name of Studied Water
File Name
Map Number
Pine Brook
02p
O0000100p
Swimming River
04p
O0000102p
Swimming River
05p
O0000103p
Many Mind Creek
Sheet 5
V0000082p
Wagner Creek
Sheet 5
V0000083p
(e) 
Optional higher standard. The most restrictive 0.2% annual chance (500-year) effective or preliminary FEMA flood study is adopted by this section for consideration when establishing the best available flood hazard data area.
(f) 
Optional higher standard. US Army Corps of Engineers maps with more restrictive data could be referenced here if the jurisdiction wants to include these maps for construction and decisionmaking purposes.
(g) 
Optional higher standards for minimum design elevations could be included here if these are more restrictive than the standards referred to in this section.
(3) 
Establishing the local design flood elevation (LDFE). The local design flood elevation (LDFE) is established in the flood hazard areas determined in § 540-527B(2), above, using the best available flood hazard data sources, and the Flood Hazard Area Control Act minimum statewide elevation requirements for lowest floors in A, Coastal A, and V Zones, ASCE 24 requirements for critical facilities as specified by the building code, plus additional freeboard as specified by this section. At a minimum, the local design flood elevation shall be as follows:
(a) 
For a delineated watercourse, the elevation associated with the best available flood hazard data area determined in § 540-527B(2), above plus one foot or as described by N.J.A.C. 7:13 of freeboard; or
(b) 
For any nondelineated watercourse (where mapping or studies described in § 540-527B(1) and (2) above are not available) that has a contributory drainage area of 50 acres or more, the applicants must provide one of the following to determine the local design flood elevation:
[1] 
A copy of an unexpired NJDEP Flood hazard area verification plus one foot of freeboard and any additional freeboard as required by ASCE 24; or
[2] 
A determination of the flood hazard area design flood elevation using Method 5 or Method 6 (as described in N.J.A.C. 7:13) plus one foot of freeboard and any additional freeboard as required by ASCE 24. Any determination using these methods must be sealed and submitted according to § 540-527E(2) and (3).
(c) 
AO Zones. For Zone AO areas on the municipality's FIRM (or on preliminary flood elevation guidance from FEMA), the local design flood elevation is determined from the FIRM panel as the highest adjacent grade plus the depth number specified plus one foot of freeboard. If no depth number is specified, the local design flood elevation is three feet above the highest adjacent grade.
(d) 
Class IV critical facilities. For any proposed development of new and substantially improved flood design class IV critical facilities, the local design flood elevation must be the higher of the 0.2% annual chance (500-year) flood elevation or the flood hazard area design flood elevation with an additional two feet of freeboard in accordance with ASCE 24.
(e) 
Class III critical facilities. For proposed development of new and substantially improved flood design class III critical facilities in coastal high hazard areas, the local design flood elevation must be the higher of the 0.2% annual chance (500-year) flood elevation or the flood hazard area design flood elevation with an additional one foot of freeboard in accordance with ASCE 24.
C. 
Duties and powers of the Floodplain Administrator.
(1) 
Floodplain Administrator designation. The Township's Senior Health Planner is designated the Floodplain Administrator. The Floodplain Administrator shall have the authority to delegate performance of certain duties to other employees.
(2) 
General. The Floodplain Administrator is authorized and directed to administer the provisions of these regulations. The Floodplain Administrator shall have the authority to render interpretations of these regulations consistent with the intent and purpose of these regulations and to establish policies and procedures in order to clarify the application of its provisions. Such interpretations, policies and procedures shall be consistent with the intent and purpose of these regulations and the flood provisions of the building code and shall not have the effect of waiving specific requirements without the granting of a variance pursuant to § 540-527G of these regulations.
(3) 
Coordination. The Floodplain Administrator shall coordinate with the Construction Official to administer and enforce the flood provisions of the Uniform Construction Code.
(4) 
Duties. The duties of the Floodplain Administrator shall include, but are not limited to:
(a) 
Review all permit applications to determine whether proposed development is located in flood hazard areas established in § 540-527B of these regulations.
(b) 
Require development in flood hazard areas to be reasonably safe from flooding and to be designed and constructed with methods, practices and materials that minimize flood damage.
(c) 
Interpret flood hazard area boundaries and provide available flood elevation and flood hazard information.
(d) 
Determine whether additional flood hazard data shall be obtained or developed.
(e) 
Review required certifications and documentation specified by these regulations and the building code to determine that such certifications and documentations are complete.
(f) 
Establish, in coordination with the Construction Official, written procedures for administering and documenting determinations of substantial improvement and substantial damage made pursuant to § 540-527C(16) of these regulations.
(g) 
Coordinate with the Construction Official and others to identify and investigate damaged buildings located in flood hazard areas and inform owners of the requirement to obtain permits for repairs.
(h) 
Review requests submitted to the Construction Official seeking approval to modify the strict application of the flood load and flood-resistant construction requirements of the Uniform Construction Code to determine whether such requests require consideration as a variance pursuant to § 540-527G of these regulations.
(i) 
Require applicants who submit hydrologic and hydraulic engineering analyses to support permit applications to submit to FEMA the data and information necessary to maintain the Flood Insurance Rate Maps when the analyses propose to change base flood elevations, flood hazard area boundaries, or floodway designations; such submissions shall be made within six months of such data becoming available.
(j) 
Require applicants who propose alteration of a watercourse to notify adjacent jurisdictions and the NJDEP Bureau of Flood Engineering, and to submit copies of such notifications to the Federal Emergency Management Agency (FEMA).
(k) 
Inspect development in accordance with § 540-527F of these regulations and inspect flood hazard areas to determine if development is undertaken without issuance of permits.
(l) 
Prepare comments and recommendations for consideration when applicants seek variances in accordance with § 540-527G of these regulations.
(m) 
Cite violations in accordance with § 540-527H of these regulations.
(n) 
Notify the Federal Emergency Management Agency when the corporate boundaries of Township of Middletown have been modified.
(o) 
Permit ordinary maintenance and minor work in the regulated areas discussed in § 540-527B(2).
(5) 
Use of changed technical data. The Floodplain Administrator and the applicant shall not use changed flood hazard area boundaries or base flood elevations for proposed buildings or developments unless the Floodplain Administrator or applicant has applied for a conditional letter of map revision (CLOMR) to the Flood Insurance Rate Map (FIRM) revision and has received the approval of the Federal Emergency Management Agency. A revision of the effective FIRM does not remove the related feature(s) on a flood hazard area delineation that has been promulgated by the NJDEP. A separate application must be made to the State pursuant to N.J.A.C. 7:13 for revision of a flood hazard design flood elevation, flood hazard area limit, floodway limit, and/or other related feature.
(6) 
Other permits. It shall be the responsibility of the Floodplain Administrator to assure that approval of a proposed development shall not be given until proof that necessary permits have been granted by Federal or State agencies having jurisdiction over such development, including Section 404 of the Clean Water Act.[1] In the event of conflicting permit requirements, the Floodplain Administrator must ensure that the most restrictive floodplain management standards are reflected in permit approvals.
[1]
Editor's Note: See 33 U.S.C. § 1344.
(7) 
Determination of local design flood elevations. If design flood elevations are not specified, the Floodplain Administrator is authorized to require the applicant to:
(a) 
Obtain, review, and reasonably utilize data available from a federal, state, or other source; or
(b) 
Determine the design flood elevation in accordance with accepted hydrologic and hydraulic engineering techniques. Such analyses shall be performed and sealed by a licensed professional engineer. Studies, analyses, and computations shall be submitted in sufficient detail to allow review and approval by the Floodplain Administrator. The accuracy of data submitted for such determination shall be the responsibility of the applicant.
It shall be the responsibility of the Floodplain Administrator to verify that the applicant's proposed best available flood hazard data area and the local design flood elevation in any development permit accurately applies the best available flood hazard data and methodologies for determining flood hazard areas and design elevations described in § 540-527B(2) and (3) respectively. This information shall be provided to the Construction Official and documented according to § 540-527C(17).
(8) 
Requirement to submit new technical data. Base flood elevations may increase or decrease resulting from natural changes (e.g., erosion, accretion, channel migration, subsidence, uplift) or man-made physical changes (e.g., dredging, filling, excavation) affecting flooding conditions. As soon as practicable, but not later than six months after the date of a man-made change or when information about a natural change becomes available, the Floodplain Administrator shall notify the Federal Insurance Administrator of the changes by submitting technical or scientific data in accordance with Title 44 CFR 65.3. Such a submission is necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and floodplain management requirements will be based upon current data.
(9) 
Activities in riverine flood hazard areas. In riverine flood hazard areas where design flood elevations are specified but floodways have not been designated, the Floodplain Administrator shall not permit any new construction, substantial improvement or other development, including the placement of fill, unless the applicant submits an engineering analysis prepared by a licensed professional engineer that demonstrates that the cumulative effect of the proposed development, when combined with all other existing and anticipated flood hazard area encroachment, will not increase the design flood elevation more than 0.2 feet at any point within the community.
(10) 
Floodway encroachment. Prior to issuing a permit for any floodway encroachment, including fill, new construction, substantial improvements and other development or land- disturbing activity, the Floodplain Administrator shall require submission of a certification prepared by a licensed professional engineer, along with supporting technical data, that demonstrates that such development will not cause any increase in the base flood level.
(11) 
Floodway revisions. A floodway encroachment that increases the level of the base flood is authorized if the applicant has applied for a conditional letter of map revision (CLOMR) to the Flood Insurance Rate Map (FIRM) and has received the approval of FEMA.
(12) 
Watercourse alteration. Prior to issuing a permit for any alteration or relocation of any watercourse, the Floodplain Administrator shall require the applicant to provide notification of the proposal to the appropriate authorities of all adjacent government jurisdictions, as well as the NJDEP Bureau of Flood Engineering and the Division of Land Resource Protection. A copy of the notification shall be maintained in the permit records and submitted to FEMA.
(13) 
Engineering analysis. The Floodplain Administrator shall require submission of an engineering analysis prepared by a licensed professional engineer, demonstrating that the flood-carrying capacity of the altered or relocated portion of the watercourse will be maintained, neither increased nor decreased. Such watercourses shall be maintained in a manner that preserves the channel's flood-carrying capacity.
(14) 
Alterations in coastal areas. The excavation or alteration of sand dunes is governed by the New Jersey Coastal Zone Management (CZM) rules, N.J.A.C. 7:7. Prior to issuing a flood damage prevention permit for any alteration of sand dunes in coastal high hazard areas and Coastal A Zones, the Floodplain Administrator shall require that a New Jersey CZM permit be obtained and included in the flood damage prevention permit application. The applicant shall also provide documentation of any engineering analysis, prepared by a licensed professional engineer, that demonstrates that the proposed alteration will not increase the potential for flood damage.
(15) 
Development in riparian zones. All development in riparian zones as described in N.J.A.C. 7:13 is prohibited by this section unless the applicant has received an individual or general permit or has complied with the requirements of a permit by rule or permit by certification from NJDEP Division of Land Resource Protection prior to application for a floodplain development permit and the project is compliant with all other Floodplain Development provisions of this section. The width of the riparian zone can range between 50 and 300 feet and is determined by the attributes of the waterbody and designated in the New Jersey Surface Water Quality Standards N.J.A.C. 7:9B. The portion of the riparian zone located outside of a regulated water is measured landward from the top of bank. Applicants can request a verification of the riparian zone limits or a permit applicability determination to determine state permit requirements under N.J.A.C. 7:13 from the NJDEP Division of Land Resource Protection.
(16) 
Substantial improvement and substantial damage determinations. When buildings and structures are damaged due to any cause, including, but not limited to, man-made, structural, electrical, mechanical, or natural hazard events, or are determined to be unsafe as described in N.J.A.C. 5:23; and for applications for building permits to improve buildings and structures, including alterations, movement, repair, additions, rehabilitations, renovations, ordinary maintenance and minor work, substantial improvements, repairs of substantial damage, and any other improvement of or work on such buildings and structures, the Floodplain Administrator, in coordination with the Construction Official, shall:
(a) 
Estimate the market value, or require the applicant to obtain a professional appraisal prepared by a qualified independent appraiser, of the market value of the building or structure before the start of construction of the proposed work; in the case of repair, the market value of the building or structure shall be the market value before the damage occurred and before any repairs are made.
(b) 
Determine and include the costs of all ordinary maintenance and minor work, as discussed in § 540-527B(2), performed in the floodplain regulated by this section in addition to the costs of those improvements regulated by the Construction Official in substantial damage and substantial improvement calculations.
(c) 
Compare the cost to perform the improvement, the cost to repair the damaged building to its pre-damaged condition, or the combined costs of improvements and repairs, where applicable, to the market value of the building or structure.
(d) 
Determine and document whether the proposed work constitutes substantial improvement or repair of substantial damage. This determination requires the evaluation of previous permits issued for improvements and repairs over a period of [insert number] years prior to the permit application or substantial damage determination as specified in the definition of substantial improvement. This determination shall also include the evaluation of flood related damages over a ten-year period to determine if the costs of repairs at the times of each flood constitutes a repetitive loss as defined by this section.
(e) 
Notify the applicant, in writing, when it is determined that the work constitutes substantial improvement or repair of substantial damage and that compliance with the flood-resistant construction requirements of the building code is required and notify the applicant, in writing, when it is determined that work does not constitute substantial improvement or repair of substantial damage. The Floodplain Administrator shall also provide all letters documenting substantial damage and compliance with flood-resistant construction requirements of the building code to the NJDEP Bureau of Flood Engineering.
(17) 
Department records. In addition to the requirements of the building code and these regulations, and regardless of any limitation on the period required for retention of public records, the Floodplain Administrator shall maintain and permanently keep and make available for public inspection all records that are necessary for the administration of these regulations and the flood provisions of the Uniform Construction Code, including Flood Insurance Studies, Flood Insurance Rate Maps; documents from FEMA that amend or revise FIRMs; NJDEP delineations, records of issuance of permits and denial of permits; records of ordinary maintenance and minor work, determinations of whether proposed work constitutes substantial improvement or repair of substantial damage; required certifications and documentation specified by the Uniform Construction Code and these regulations including as-built elevation certificates; notifications to adjacent communities, FEMA, and the state related to alterations of watercourses; assurance that the flood-carrying capacity of altered waterways will be maintained; documentation related to variances, including justification for issuance or denial; and records of enforcement actions taken pursuant to these regulations and the flood-resistant provisions of the Uniform Construction Code. The Floodplain Administrator shall also record the required elevation, determination method, and base flood elevation source used to determine the local design flood elevation in the floodplain development permit.
(18) 
Liability. The Floodplain Administrator and any employee charged with the enforcement of these regulations, while acting for the jurisdiction in good faith and without malice in the discharge of the duties required by these regulations or other pertinent law or ordinance, shall not thereby be rendered liable personally and is hereby relieved from personal liability for any damage accruing to persons or property as a result of any act or by reason of an act or omission in the discharge of official duties. Any suit instituted against an officer or employee because of an act performed by that officer or employee in the lawfill discharge of duties and under the provisions of these regulations shall be defended by legal representative of the jurisdiction until the final termination of the proceedings. The Floodplain Administrator and any subordinate shall not be liable for cost in any action, suit or proceeding that is instituted in pursuance of the provisions of these regulations.
D. 
Permits.
(1) 
Permits required. Any person, owner or authorized agent who intends to conduct any development in a flood hazard area shall first make application to the Floodplain Administrator and shall obtain the required permit. Depending on the nature and extent of proposed development that includes a building or structure, the Floodplain Administrator may determine that a floodplain development permit or approval is required in addition to a building permit.
(2) 
Application for permit. The applicant shall file an application, in writing, on a form furnished by the Floodplain Administrator. Such application shall:
(a) 
Identify and describe the development to be covered by the permit.
(b) 
Describe the land on which the proposed development is to be conducted by legal description, street address or similar description that will readily identify and definitively locate the site.
(c) 
Indicate the use and occupancy for which the proposed development is intended.
(d) 
Be accompanied by a site plan and construction documents as specified in § 540-527E of these regulations, grading and filling plans and other information deemed appropriate by the Floodplain Administrator.
(e) 
State the valuation of the proposed work, including the valuation of ordinary maintenance and minor work.
(f) 
Be signed by the applicant or the applicant's authorized agent.
(3) 
Validity of permit. The issuance of a permit under these regulations or the Uniform Construction Code shall not be construed to be a permit for, or approval of, any violation of this appendix or any other ordinance of the jurisdiction. The issuance of a permit based on submitted documents and information shall not prevent the Floodplain Administrator from requiring the correction of errors. The Floodplain Administrator is authorized to prevent occupancy or use of a structure or site which is in violation of these regulations or other ordinances of this jurisdiction.
(4) 
Expiration. A permit shall become invalid when the proposed development is not commenced within 180 days after its issuance, or when the work authorized is suspended or abandoned for a period of 180 days after the work commences. Extensions shall be requested in writing and justifiable cause demonstrated. The Floodplain Administrator is authorized to grant, in writing, one or more extensions of time, for periods not more than 180 days each.
(5) 
Suspension or revocation. The Floodplain Administrator is authorized to suspend or revoke a permit issued under these regulations wherever the permit is issued in error or on the basis of incorrect, inaccurate or incomplete information, or in violation of any ordinance or code of this jurisdiction.
E. 
Site plans and construction documents.
(1) 
Information for development in flood hazard areas. The site plan or construction documents for any development subject to the requirements of these regulations shall be drawn to scale and shall include, as applicable to the proposed development:
(a) 
Delineation of flood hazard areas, floodway boundaries and flood zone(s), base flood elevation(s), and ground elevations when necessary for review of the proposed development. For buildings that are located in more than one flood hazard area, the elevation and provisions associated with the most restrictive flood hazard area shall apply.
(b) 
Where base flood elevations or floodway data are not included on the FIRM or in the Flood Insurance Study, they shall be established in accordance with § 540-527E(2).
(c) 
Where the parcel on which the proposed development will take place will have more than 50 lots or is larger than five acres and base flood elevations are not included on the FIRM or in the Flood Insurance Study, such elevations shall be established in accordance with § 540-527E(2)(a)[3] of these regulations.
(d) 
Location of the proposed activity and proposed structures, and locations of existing buildings and structures; in coastal high hazard areas and Coastal A Zones, new buildings shall be located landward of the reach of mean high tide.
(e) 
Location, extent, amount, and proposed final grades of any filling, grading, or excavation.
(f) 
Where the placement of fill is proposed, the amount, type, and source of fill material; compaction specifications; a description of the intended purpose of the fill areas; and evidence that the proposed fill areas are the minimum necessary to achieve the intended purpose. The applicant shall provide an engineering certification confirming that the proposal meets the flood storage displacement limitations of N.J.A.C. 7:13.
(g) 
Extent of any proposed alteration of sand dunes.
(h) 
Existing and proposed alignment of any proposed alteration of a watercourse.
(i) 
Floodproofing certifications, V Zone and breakaway wall certifications, operations and maintenance plans, warning and evacuation plans and other documentation required pursuant to FEMA publications.
The Floodplain Administrator is authorized to waive the submission of site plans, construction documents, and other data that are required by these regulations but that are not required to be prepared by a registered design professional when it is found that the nature of the proposed development is such that the review of such submissions is not necessary to ascertain compliance.
(2) 
Information in flood hazard areas without base flood elevations (approximate Zone A).
(a) 
Where flood hazard areas are delineated on the effective or preliminary FIRM and base flood elevation data have not been provided, the applicant shall consult with the Floodplain Administrator to determine whether to:
[1] 
Use the Approximation Method (Method 5) described in N.J.A.C. 7:13 in conjunction with Appendix 1 of the FHACA to determine the required flood elevation.
[2] 
Obtain, review, and reasonably utilize data available from a federal, state or other source when those data are deemed acceptable to the Floodplain Administrator to reasonably reflect flooding conditions.
[3] 
Determine the base flood elevation in accordance with accepted hydrologic and hydraulic engineering techniques according to Method 6 as described in N.J.A.C. 7:13. Such analyses shall be performed and sealed by a licensed professional engineer.
(b) 
Studies, analyses, and computations shall be submitted in sufficient detail to allow review and approval by the Floodplain Administrator prior to floodplain development permit issuance. The accuracy of data submitted for such determination shall be the responsibility of the applicant. Where the data are to be used to support a letter of map change (LOMC) from FEMA, the applicant shall be responsible for satisfying the submittal requirements and pay the processing fees.
(3) 
Analyses and certifications by a licensed professional engineer. As applicable to the location and nature of the proposed development activity, and in addition to the requirements of this section, the applicant shall have the following analyses signed and sealed by a licensed professional engineer for submission with the site plan and construction documents:
(a) 
For development activities proposed to be located in a regulatory floodway, a floodway encroachment analysis that demonstrates that the encroachment of the proposed development will not cause any increase in base flood elevations; where the applicant proposes to undertake development activities that do increase base flood elevations, the applicant shall submit such analysis to FEMA as specified in § 540-527E(4) of these regulations and shall submit the conditional letter of map revision, if issued by FEMA, with the site plan and construction documents.
(b) 
For development activities proposed to be located in a riverine flood hazard area where base flood elevations are included in the FIS or FIRM but floodways have not been designated, hydrologic and hydraulic analyses that demonstrate that the cumulative effect of the proposed development, when combined with all other existing and anticipated flood hazard area encroachments will not increase the base flood elevation more than 0.2 feet at any point within the jurisdiction. This requirement does not apply in isolated flood hazard areas not connected to a riverine flood hazard area or in flood hazard areas identified as Zone AO or Zone AH.
(c) 
For alteration of a watercourse, an engineering analysis prepared in accordance with standard engineering practices which demonstrates that the flood-carrying capacity of the altered or relocated portion of the watercourse will not be decreased, and certification that the altered watercourse shall be maintained, neither increasing nor decreasing the channel's flood-carrying capacity. The applicant shall submit the analysis to FEMA as specified in § 540-527E(4) of these regulations. The applicant shall notify the chief executive officer of all affected adjacent jurisdictions, the NJDEP's Bureau of Flood Engineering and the Division of Land Resource Protection; and shall provide documentation of such notifications.
(d) 
For activities that propose to alter sand dunes in coastal high hazard areas (Zone V) and Coastal A Zones, an engineering analysis that demonstrates that the proposed alteration will not increase the potential for flood damage and documentation of the issuance of a New Jersey Coastal Zone Management permit under N.J.A.C. 7:7.
(e) 
For analyses performed using Methods 5 and 6 (as described in N.J.A.C. 7:13) in flood hazard zones without base flood elevations (approximate A Zones).
(4) 
Submission of additional data. When additional hydrologic, hydraulic or other engineering data, studies, and additional analyses are submitted to support an application, the applicant has the right to seek a letter of map change (LOMC) from FEMA to change the base flood elevations, change floodway boundaries, or change boundaries of flood hazard areas shown on FIRMs, and to submit such data to FEMA for such purposes. The analyses shall be prepared by a licensed professional engineer in a format required by FEMA. Submittal requirements and processing fees shall be the responsibility of the applicant.
F. 
Inspections.
(1) 
General. Development for which a permit is required shall be subject to inspection. Approval as a result of an inspection shall not be construed to be an approval of a violation of the provisions of these regulations or the building code. Inspections presuming to give authority to violate or cancel the provisions of these regulations or the building code or other ordinances shall not be valid.
(2) 
Inspections of development. The Floodplain Administrator shall inspect all development in flood hazard areas authorized by issuance of permits under these regulations. The Floodplain Administrator shall inspect flood hazard areas from time to time to determine if development is undertaken without issuance of a permit.
(3) 
Buildings and structures. The Construction Official shall make, or cause to be made, inspections for buildings and structures in flood hazard areas authorized by permit in accordance with the Uniform Construction Code, N.J.A.C. 5:23.
(a) 
Lowest floor elevation. Upon placement of the lowest floor, including the basement, and prior to further vertical construction, certification of the elevation required in § 540-527O(2) shall be submitted to the Construction Official on an elevation certificate.
(b) 
Lowest horizontal structural member. In V Zones and Coastal A Zones, upon placement of the lowest floor, including the basement, and prior to further vertical construction, certification of the elevation required in § 540-527O(2) shall be submitted to the Construction Official on an elevation certificate.
(c) 
Installation of attendant utilities (electrical, heating, ventilating, air-conditioning, and other service equipment) and sanitary facilities elevated as discussed in § 540-527O(2).
(d) 
Final inspection. Prior to the final inspection, certification of the elevation required in § 540-527O(2) shall be submitted to the Construction Official on an elevation certificate.
(4) 
Manufactured homes. The Floodplain Administrator shall inspect manufactured homes that are installed or replaced in flood hazard areas to determine compliance with the requirements of these regulations and the conditions of the issued permit. Upon placement of a manufactured home, certification of the elevation of the lowest floor shall be submitted on an elevation certificate to the Floodplain Administrator prior to the final inspection.
G. 
Variances.
(1) 
General. The Zoning Board of Adjustment shall hear and decide requests for variances. The Zoning Board of Adjustment shall base its determination on technical justifications submitted by applicants, the considerations for issuance in § 540-527G(5), the conditions of issuance set forth in § 540-527G(6), and the comments and recommendations of the Floodplain Administrator and, as applicable, the Construction Official. The Zoning Board of Adjustment has the right to attach such conditions to variances as it deems necessary to further the purposes and objectives of these regulations.
(2) 
Historic structures. A variance to the substantial improvement requirements of this section is authorized provided that the repair or rehabilitation of an historic structure is completed according to N.J.A.C. 5:23-6.33, Section 1612 of the International Building Code and R322 of the International Residential Code, the repair or rehabilitation will not preclude the structure's continued designation as an historic structure, the structure meets the definition of the historic structure as described by this section, and the variance is the minimum necessary to preserve the historic character and design of the structure.
(3) 
Functionally dependent uses. A variance is authorized to be issued for the construction or substantial improvement necessary for the conduct of a functionally dependent use provided the variance is the minimum necessary to allow the construction or substantial improvement, and that all due consideration has been given to use of methods and materials that minimize flood damage during the base flood and create no additional threats to public safety.
(4) 
Restrictions in floodways. A variance shall not be issued for any proposed development in a floodway when any increase in flood levels would result during the base flood discharge, as evidenced by the applicable analysis and certification required in § 540-527(3)(a) of these regulations.
(5) 
Considerations. In reviewing requests for variances, all technical evaluations, all relevant factors, all other portions of these regulations, and the following shall be considered:
(a) 
The danger that materials and debris may be swept onto other lands resulting in further injury or damage.
(b) 
The danger to life and property due to flooding or erosion damage.
(c) 
The susceptibility of the proposed development, including contents, to flood damage and the effect of such damage on current and future owners.
(d) 
The importance of the services provided by the proposed development to the community.
(e) 
The availability of alternate locations for the proposed development that are not subject to flooding or erosion and the necessity of a waterfront location, where applicable.
(f) 
The compatibility of the proposed development with existing and anticipated development.
(g) 
The relationship of the proposed development to the comprehensive plan and floodplain management program for that area.
(h) 
The safety of access to the property in times of flood for ordinary and emergency vehicles.
(i) 
The expected heights, velocity, duration, rate of rise and debris and sediment transport of the floodwater and the effects of wave action, where applicable, expected at the site.
(j) 
The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, streets, and bridges.
(6) 
Conditions for issuance. Variances shall only be issued upon:
(a) 
Submission by the applicant of a showing of good and sufficient cause that the unique characteristics of the size, configuration or topography of the site limit compliance with any provision of these regulations or renders the elevation standards of the building code inappropriate.
(b) 
A determination that failure to grant the variance would result in exceptional hardship due to the physical characteristics of the land that render the lot undevelopable.
(c) 
A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, nor create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances.
(d) 
A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(e) 
Notification to the applicant, in writing, over the signature of the Floodplain Administrator that the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage, and that such construction below the base flood level increases risks to life and property.
H. 
Violations.
(1) 
Violations. Any development in any flood hazard area that is being performed without an issued permit or that is in conflict with an issued permit shall be deemed a violation. A building or structure without the documentation of elevation of the lowest floor, the lowest horizontal structural member if in a V or Coastal A Zone, other required design certifications, or other evidence of compliance required by the building code is presumed to be a violation until such time as that documentation is provided.
(2) 
Authority. The Floodplain Administrator is authorized to serve notices of violation or stop-work orders to owners of property involved, to the owner's agent, or to the person or persons doing the work for development that is not within the scope of the Uniform Construction Code but is regulated by these regulations and that is determined to be a violation.
(3) 
Unlawful continuance. Any person who shall continue any work after having been served with a notice of violation or a stop-work order, except such work as that person is directed to perform to remove or remedy a violation or unsafe condition, shall be subject to penalties as prescribed by N.J.S.A. 40:49-5, as appropriate.
(4) 
Review period to correct violations. A thirty-day period shall be given to the property owner as an opportunity to cure or abate the condition. The property owner shall also be afforded an opportunity for a hearing before the court for an independent determination concerning the violation. Subsequent to the expiration of the thirty-day period, a fine greater than $1,250 (or optional higher threshold amount up to $2,000 under N.J.S.A. 40:49-5) may be imposed if a court has not determined otherwise or, upon reinspection of the property, it is determined that the abatement has not been substantially completed.
I. 
Definitions.
(1) 
General. The following words and terms shall, for the purposes of these regulations, have the meanings shown herein. Other terms are defined in the Uniform Construction Code, N.J.A.C. 5:23, and terms are defined where used in the International Residential Code and International Building Code (rather than in the definitions section). Where terms are not defined, such terms shall have ordinarily accepted meanings such as the context implies.
(2) 
Definitions. As used in this section, the following terms shall have the meanings indicated:
100-YEAR FLOOD ELEVATION
Elevation of flooding having a 1% annual chance of being equaled or exceeded in a given year which is also referred to as the base flood elevation.
500-YEAR FLOOD ELEVATION
Elevation of flooding having a 0.2% annual chance of being equaled or exceeded in a given year.
A ZONES
Areas of special flood hazard in which the elevation of the surface water resulting from a flood that has a 1% annual chance of equaling or exceeding the base flood elevation (BFE) in any given year shown on the Flood Insurance Rate Map (FIRM) Zones A, AE, AH, A1-A30, AR, AR/A, AR/AE, AR/A1-A30, AR/AH, and AR/AO. When used in reference to the development of a structure in this section, A Zones are not inclusive of Coastal A Zones because of the higher building code requirements for Coastal A Zones.
AH ZONES
Areas subject to inundation by 1%-annual-chance shallow flooding (usually areas of ponding) where average depths are between one and three feet. Base flood elevations (BFEs) derived from detailed hydraulic analyses are shown in this zone.
AO ZONES
Areas subject to inundation by 1%-annual-chance shallow flooding (usually sheet flow on sloping terrain) where average depths are between one and three feet.
ACCESSORY STRUCTURE
Accessory structures are also referred to as appurtenant structures. An accessory structure is a structure which is on the same parcel of property as a principal structure and the use of which is incidental to the use of the principal structure. For example, a residential structure may have a detached garage or storage shed for garden tools as accessory structures. Other examples of accessory structures include gazebos, picnic pavilions, boathouses, small pole barns, storage sheds, and similar buildings.
AGRICULTURAL STRUCTURE
A structure used solely for agricultural purposes in which the use is exclusively in connection with the production, harvesting, storage, drying, or raising of agricultural commodities, including the raising of livestock. Communities must require that new construction or substantial improvements of agricultural structures be elevated or floodproofed to or above the base flood elevation (BFE) as any other nonresidential building. Under some circumstances it may be appropriate to wet-floodproof certain types of agricultural structures when located in wide, expansive floodplains through issuance of a variance. This should only be done for structures used for temporary storage of equipment or crops or temporary shelter for livestock and only in circumstances where it can be demonstrated that agricultural structures can be designed in such a manner that results in minimal damage to the structure and its contents and will create no additional threats to public safety. New construction or substantial improvement of livestock confinement buildings, poultry houses, dairy operations, similar livestock operations and any structure that represents more than a minimal investment must meet the elevation or dry-floodproofing requirements of 44 CFR 60.3(c)(3).
ALTERATION OF A WATERCOURSE
A dam, impoundment, channel relocation, change in channel alignment, channelization, or change in cross-sectional area of the channel or the channel capacity, or any other form of modification which may alter, impede, retard or change the direction and/or velocity of the riverine flow of water during conditions of the base flood.
AREA OF SHALLOW FLOODING
A designated Zone AO, AH, AR/AO or AR/AH (or VO) on a community's Flood Insurance Rate Map (FIRM) with a one-percent-or-greater annual chance of flooding to an average depth of one to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable, and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow.
AREA OF SPECIAL FLOOD HAZARD
See "special flood hazard area."
ASCE 7
The standard for the Minimum Design Loads for Buildings and Other Structures, referenced by the building code and developed and published by the American Society of Civil Engineers, Reston, VA. which includes, but is not limited to, methodology and equations necessary for determining structural and flood-related design requirements and determining the design requirements for structures that may experience a combination of loads, including those from natural hazards. Flood-related equations include those for determining erosion, scour, lateral, vertical, hydrostatic, hydrodynamic, buoyancy, breaking wave, and debris impact.
ASCE 24
The standard for Flood-Resistant Design and Construction, referenced by the building code and developed and published by the American Society of Civil Engineers, Reston, VA. References to ASCE 24 shall mean ASCE 24-14 or the most recent version of ASCE 24 adopted in the UCC Code (N.J.A.C. 5:23).
BASE FLOOD ELEVATION (BFE)
The water surface elevation resulting from a flood that has a 1% or greater chance of being equaled or exceeded in any given year, as shown on a published Flood Insurance Study (FIS), or preliminary flood elevation guidance from FEMA. May also be referred to as the "100-year flood elevation."
BASEMENT
Any area of the building having its floor subgrade (below ground level) on all sides.
BEST AVAILABLE FLOOD HAZARD DATA
The most recent available preliminary flood risk guidance FEMA has provided. The best available flood hazard data may be depicted on, but not limited to, Advisory Flood Hazard Area Maps, work maps, or Preliminary FIS and FIRM.
BEST AVAILABLE FLOOD HAZARD DATA AREA
The areal mapped extent associated with the most recent available preliminary flood risk guidance FEMA has provided. The best available flood hazard data may be depicted on, but not limited to, Advisory Flood Hazard Area Maps, work maps, or Preliminary FIS and FIRM.
BEST AVAILABLE FLOOD HAZARD DATA ELEVATION
The most recent available preliminary flood elevation guidance FEMA has provided. The best available flood hazard data may be depicted on, but not limited to, Advisory Flood Hazard Area Maps, work maps, or Preliminary FIS and FIRM.
BREAKAWAY WALLS
Any type of wall subject to flooding that is not required to provide structural support to a building or other structure and that is designed and constructed such that, below the local design flood elevation, it will collapse under specific lateral loads such that 1) it allows the free passage of floodwaters, and 2) it does not damage the structure or supporting foundation system. Certification in the V Zone certificate of the design, plans, and specifications by a licensed design professional that these walls are in accordance with accepted standards of practice is required as part of the permit application for new and substantially improved V Zone and Coastal A Zone structures. A completed certification must be submitted at permit application.
BUILDING
Per the FHACA, "building" means a structure enclosed with exterior walls or fire walls, erected and framed of component structural parts, designed for the housing, shelter, enclosure, and support of individuals, animals, or property of any kind. A building may have a temporary or permanent foundation. A building that is intended for regular human occupation and/or residence is considered a habitable building.
COASTAL A ZONE
An area of special flood hazard starting from a Velocity (V) Zone and extending up to the landward limit of the moderate wave action delineation. Where no V Zone is mapped the Coastal A Zone is the portion between the open coast and the landward limit of the moderate wave action delineation. Coastal A Zones may be subject to wave effects, velocity flows, erosion, scour, or a combination of these forces. Construction and development in Coastal A Zones is to be regulated similarly to V Zones/Coastal High Hazard Areas except as allowed by ASCE 24.
COASTAL HIGH HAZARD AREA
An area of special flood hazard inclusive of the V Zone extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources.
CONDITIONAL LETTER OF MAP REVISION
A conditional letter of map revision (CLOMR) is FEMA’s comment on a proposed project that would, upon construction, affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective base flood elevations (BFEs), or the special flood hazard area (SFHA). The letter does not revise an effective NFIP map, it indicates whether the project, if built as proposed, would be recognized by FEMA. FEMA charges a fee for processing a CLOMR to recover the costs associated with the review that is described in the letter of map change (LOMC) process. Building permits cannot be issued based on a CLOMR, because a CLOMR does not change the NFIP map.
CONDITIONAL LETTER OF MAP REVISION - FILL
A conditional letter of map revision - Fill (CLOMR-F) is FEMA’s comment on a proposed project involving the placement of fill outside of the regulatory floodway that would, upon construction, affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective base flood elevations (BFEs), or the special flood hazard area (SFHA). The letter does not revise an effective NFIP map, it indicates whether the project, if built as proposed, would be recognized by FEMA. FEMA charges a fee for processing a CLOMR to recover the costs associated with the review that is described in the letter of map change (LOMC) process. Building permits cannot be issued based on a CLOMR, because a CLOMR does not change the NFIP map.
CRITICAL BUILDING
Per the FHACA, "critical building" means that:
(a) 
It is essential to maintaining continuity of vital government operations and/or supporting emergency response, sheltering, and medical care functions before, during, and after a flood, such as a hospital, medical clinic, police station, fire station, emergency response center, or public shelter; or
(b) 
It serves large numbers of people who may be unable to leave the facility through their own efforts, thereby hindering or preventing safe evacuation of the building during a flood event, such as a school, college, dormitory, jail or detention facility, day-care center, assisted living facility, or nursing home.
DEEP FOUNDATIONS
Per ASCE 24, deep foundations refer to those foundations constructed on erodible soils in Coastal High Hazard and Coastal A Zones which are founded on piles, drilled shafts, caissons, or other types of deep foundations and are designed to resist erosion and scour and support lateral and vertical loads as described in ASCE 7. Foundations shall extend to 10 feet below mean water level (MWL) unless the design demonstrates that pile penetration will provide sufficient depth and stability as determined by ASCE 24, ASCE 7, and additional geotechnical investigations if any unexpected conditions are encountered during construction.
DEVELOPMENT
Any man-made change to improved or unimproved real estate, including, but not limited to, buildings or other structures, tanks, temporary structures, temporary or permanent storage of materials, mining, dredging, filling, grading, paving, excavations, drilling operations and other land-disturbing activities.
DRY FLOODPROOFING
A combination of measures that results in a nonresidential structure, including the attendant utilities and equipment as described in the latest version of ASCE 24, being watertight with all elements substantially impermeable and with structural components having the capacity to resist flood loads.
ELEVATED BUILDING
A building that has no basement and that has its lowest elevated floor raised above ground level by foundation walls, shear walls, posts, piers, pilings, or columns. Solid perimeter foundations walls are not an acceptable means of elevating buildings in V and VE Zones.
ELEVATION CERTIFICATE
An administrative tool of the National Flood Insurance Program (NFIP) that can be used to provide elevation information, to determine the proper insurance premium rate, and to support an application for a letter of map amendment (LOMA) or letter of map revision based on fill (LOMR-F).
ENCROACHMENT
The placement of fill, excavation, buildings, permanent structures or other development into a flood hazard area which may impede or alter the flow capacity of riverine flood hazard areas.
FEMA PUBLICATIONS
Any publication authored or referenced by FEMA related to building science, building safety, or floodplain management related to the National Flood Insurance Program. Publications shall include, but are not limited to technical bulletins, desk references, and American Society of Civil Engineers Standards documents including ASCE 24.
FLOOD HAZARD AREA DESIGN FLOOD ELEVATION
Per the FHACA, the peak water surface elevation that will occur in a water during the flood hazard area design flood. This elevation is determined via available flood mapping adopted by the state, flood mapping published by FEMA (including effective flood mapping dated on or after January 31, 1980, or any more recent advisory, preliminary, or pending flood mapping; whichever results in higher flood elevations, wider floodway limits, greater flow rates, or indicates a change from an A Zone to a V Zone or Coastal A Zone), approximation, or calculation pursuant to the Flood Hazard Area Control Act Rules at N.J.A.C. 7:13-3.1 through 7:13-3.6 and is typically higher than FEMA's base flood elevation. A water that has a drainage area measuring less than 50 acres does not possess, and is not assigned, a flood hazard area design flood elevation.
FLOOD INSURANCE RATE MAP (FIRM)
The official map on which the Federal Emergency Management Agency has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.
FLOOD INSURANCE STUDY (FIS)
The official report in which the Federal Emergency Management Agency has provided flood profiles, as well as the Flood Insurance Rate Map(s) and the water surface elevation of the base flood.
FLOOD or FLOODING
(a) 
A general and temporary condition of partial or complete inundation of normally dry land areas from:
[1] 
The overflow of inland or tidal waters.
[2] 
The unusual and rapid accumulation or runoff of surface waters from any source.
[3] 
Mudslides (i.e., mudflows) which are proximately caused by flooding as defined in Subsection (2)(a)[2] of this definition and are akin to a river or liquid and flowing mud on the surfaces of normally dry land areas, as when earth is carried by a current of water and deposited along the path of the current.
(b) 
The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as defined in Subsection (2)(a)[1] of this definition.
FLOODPLAIN MANAGEMENT REGULATIONS
Zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as a floodplain ordinance, grading ordinance, and erosion control ordinance) and other applications of police power. The term describes such state or local regulations, in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction.
FLOODPLAIN or FLOOD-PRONE AREA
Any land area susceptible to being inundated by water from any source. See "flood or flooding."
FLOODPROOFING
Any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures, and their contents.
FLOODPROOFING CERTIFICATE
Certification by a licensed design professional that the design and methods of construction for floodproofing a nonresidential structure are in accordance with accepted standards of practice to a proposed height above the structure's lowest adjacent grade that meets or exceeds the local design flood elevation. A completed floodproofing certificate is required at permit application.
FLOODWAY
The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than 0.2 foot.
FREEBOARD
A factor of safety usually expressed in feet above a flood level for purposes of floodplain management. "Freeboard" tends to compensate for the many unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood and floodway conditions, such as wave action, bridge openings, and the hydrological effect of urbanization of the watershed.
FUNCTIONALLY DEPENDENT USE
A use that cannot perform its intended purpose unless it is located or carried out in close proximity to water, including only docking facilities, port facilities necessary for the loading or unloading of cargo or passengers, and shipbuilding and ship repair facilities. The term does not include long-term storage or related manufacturing facilities.
HABITABLE BUILDING
Pursuant to the FHACA Rules (N.J.A.C. 7:13), means a building that is intended for regular human occupation and/or residence. Examples of a habitable building include a single-family home, duplex, multiresidence building, or critical building; a commercial building such as a retail store, restaurant, office building, or gymnasium; an accessory structure that is regularly occupied, such as a garage, barn, or workshop; mobile and manufactured homes, and trailers intended for human residence, which are set on a foundation and/or connected to utilities, such as in a mobile home park (not including campers and recreational vehicles); and any other building that is regularly occupied, such as a house of worship, community center, or meeting hall, or animal shelter that includes regular human access and occupation. Examples of a nonhabitable building include a bus stop shelter, utility building, storage shed, self-storage unit, construction trailer, or an individual shelter for animals such as a doghouse or outdoor kennel.
HARDSHIP
As related to § 540-527G of this section, meaning the exceptional hardship that would result from a failure to grant the requested variance. The Zoning Board of Adjustment requires that the variance be exceptional, unusual, and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors likewise cannot, as a rule, qualify as an exceptional hardship. All of these problems can be resolved through other means without granting a variance, even if the alternative is more expensive, or requires the property owner to build elsewhere or put the parcel to a different use than originally intended.
HIGHEST ADJACENT GRADE
The highest natural elevation of the ground surface prior to construction next to the proposed or existing walls of a structure.
HISTORIC STRUCTURE
Any structure that is:
(a) 
Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;
(b) 
Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district;
(c) 
Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or
(d) 
Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:
[1] 
By an approved state program as determined by the Secretary of the Interior; or
[2] 
Directly by the Secretary of the Interior in states without approved programs.
LAWFULLY EXISTING
Per the FHACA, means an existing fill, structure and/or use, which meets all federal, state, and local laws, and which is not in violation of the FHACA because it was established:
(a) 
Prior to January 31, 1980; or
(b) 
On or after January 31, 1980, in accordance with the requirements of the FHACA as it existed at the time the fill, structure and/or use was established.
Note: Substantially damaged properties and substantially improved properties that have not been elevated are not considered "lawfully existing" for the purposes of the NFIP. This definition is included in this section to clarify the applicability of any more stringent statewide floodplain management standards required under the FHACA.
LETTER OF MAP AMENDMENT
A letter of map amendment (LOMA) is an official amendment, by letter, to an effective National Flood Insurance Program (NFIP) map that is requested through the letter of map change (LOMC) process. A LOMA establishes a property's location in relation to the special flood hazard area (SFHA). LOMAs are usually issued because a property has been inadvertently mapped as being in the floodplain but is actually on natural high ground above the base flood elevation. Because a LOMA officially amends the effective NFIP map, it is a public record that the community must maintain. Any LOMA should be noted on the community's master flood map and filed by panel number in an accessible location.
LETTER OF MAP CHANGE
The letter of map change (LOMC) process is a service provided by FEMA for a fee that allows the public to request a change in flood zone designation in an area of special flood hazard on an Flood Insurance Rate Map (FIRM). Conditional Letters of Map Revision, Conditional Letters of Map Revision - Fill, Letters of Map Revision, Letters of Map Revision-Fill, and Letters of Map Amendment are requested through the letter of map change (LOMC) process.
LETTER OF MAP REVISION
A letter of map revision (LOMR) is FEMA’s modification to an effective Flood Insurance Rate Map (FIRM). Letter of map revisions are generally - based on the implementation of physical measures that affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective base flood elevations (BFEs), or the special flood hazard area (SFHA). The LOMR officially revises the Flood Insurance Rate Map (FIRM) and sometimes the Flood Insurance Study (FIS) report, and when appropriate, includes a description of the modifications. The LOMR is generally accompanied by an annotated copy of the affected portions of the FIRM or FIS report. Because a LOMR officially revises the effective NFIP map, it is a public record that the community must maintain. Any LOMR should be noted on the community’s master flood map and filed by panel number in an accessible location.
LETTER OF MAP REVISION - FILL
A letter of map revision based on fill (LOMR-F) is FEMA’s modification of the special flood hazard area (SFHA) shown on the Flood Insurance Rate Map (FIRM) based on the placement of fill outside the existing regulatory floodway may be initiated through the letter of map change (LOMC) Process. Because a LOMR-F officially revises the effective Flood Insurance Rate Map (FIRM) map, it is a public record that the community must maintain. Any LOMR-F should be noted on the community’s master flood map and filed by panel number in an accessible location.
LICENSED DESIGN PROFESSIONAL
Shall refer to either a New Jersey licensed professional engineer, licensed by the New Jersey State Board of Professional Engineers and Land Surveyors or a New Jersey Licensed Architect, licensed by the New Jersey State Board of Architects.
LICENSED PROFESSIONAL ENGINEER
Shall refer to individuals licensed by the New Jersey State Board of Professional Engineers and Land Surveyors.
LIMIT OF MODERATE WAVE ACTION (LiMWA)
Inland limit of the area affected by waves greater than 1.5 feet during the base flood. Base flood conditions between the VE Zone and the LiMWA will be similar to, but less severe than those in the VE Zone.
LOCAL DESIGN FLOOD ELEVATION (LDFE)
The elevation reflective of the most recent available preliminary flood elevation guidance FEMA has provided as depicted on, but not limited to, Advisory Flood Hazard Area Maps, work maps, or Preliminary FIS and FIRM which is also inclusive of freeboard specified by the New Jersey Flood Hazard Area Control Act and Uniform Construction Codes and any additional freeboard specified in a community's ordinance. In no circumstances shall a project's LDFE be lower than a permit-specified flood hazard area design flood elevation or a valid NJDEP Flood Hazard Area Verification Letter plus the freeboard as required in ASCE 24 and the effective FEMA base flood elevation.
LOWEST ADJACENT GRADE
The lowest point of ground, patio, or sidewalk slab immediately next a structure, except in AO Zones where it is the natural grade elevation.
LOWEST FLOOR
In A Zones, the lowest floor is the top surface of the lowest floor of the lowest enclosed area (including basement). In V Zones and Coastal A Zones, the bottom of the lowest horizontal structural member of a building is the lowest floor. An unfinished or flood-resistant enclosure, usable solely for the parking of vehicles, building access or storage in an area other than a basement is not considered a building's lowest floor provided that such enclosure is not built so as to render the structure in violation of other applicable nonelevation design requirements of these regulations.
LOWEST HORIZONTAL STRUCTURAL MEMBER
In an elevated building in a Coastal A or Coastal High Hazard Zone, the lowest beam, joist, or other horizontal member that supports the building is the lowest horizontal structural member. Grade beams installed to support vertical foundation members where they enter the ground are not considered lowest horizontal members.
MANUFACTURED HOME
A structure that is transportable in one or more sections, eight feet or more in width and greater than 400 square feet, built on a permanent chassis, designed for use with or without a permanent foundation when attached to the required utilities, and constructed to the Federal Manufactured Home Construction and Safety Standards and rules and regulations promulgated by the U.S. Department of Housing and Urban Development. The term also includes mobile homes, park trailers, travel trailers and similar transportable structures that are placed on a site for 180 consecutive days or longer.
MANUFACTURED HOME PARK OR SUBDIVISION
A parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.
MARKET VALUE
The price at which a property will change hands between a willing buyer and a willing seller, neither party being under compulsion to buy or sell and both having reasonable knowledge of relevant facts. As used in these regulations, the term refers to the market value of buildings and structures, excluding the land and other improvements on the parcel. Market value shall be determined by one of the following methods: 1) actual cash value (replacement cost depreciated for age and quality of construction); 2) tax assessment value adjusted to approximate market value by a factor provided by the Property Appraiser; or 3) established by a qualified independent appraiser.
NEW CONSTRUCTION
Structures for which the start of construction commenced on or after the effective date of the first floodplain regulation adopted by a community; includes any subsequent improvements to such structures. New construction includes work determined to be a substantial improvement.
NONRESIDENTIAL
Pursuant to ASCE 24, any building or structure or portion thereof that is not classified as residential.
ORDINARY MAINTENANCE AND MINOR WORK
This term refers to types of work excluded from construction permitting under N.J.A.C. 5:23 in the March 5, 2018, New Jersey Register. Some of these types of work must be considered in determinations of substantial improvement and substantial damage in regulated floodplains under 44 CFR 59.1. These types of work include, but are not limited to, replacements of roofing, siding, interior finishes, kitchen cabinets, plumbing fixtures and piping, HVAC and air conditioning equipment, exhaust fans, built in appliances, electrical wiring, etc. Improvements necessary to correct existing violations of State or local health, sanitation, or code enforcement officials which are the minimum necessary to assure safe living conditions and improvements of historic structures as discussed in 44 CFR 59.1 shall not be included in the determination of ordinary maintenance and minor work.
RECREATIONAL VEHICLE
A vehicle that is built on a single chassis, 400 square feet or less when measured at the largest horizontal projection, designed to be self-propelled or permanently towable by a light-duty truck, and designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel or seasonal use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices and has no permanently attached additions.
REPETITIVE LOSS
Any flood-related damage sustained by a structure on two separate occasions during a ten-year period for which the cost of repairs at the time of each such flood event, on the average, equals or exceeds 25% of the market value of the structure before the damage occurred.
RESIDENTIAL
Pursuant to the ASCE 24:
(a) 
Buildings and structures and portions thereof where people live or that are used for sleeping purposes on a transient or nontransient basis;
(b) 
Structures, including but not limited to, one- and two-family dwellings, townhouses, condominiums, multifamily dwellings, apartments, congregate residences, boarding houses, lodging houses, rooming houses, hotels, motels, apartment buildings, convents, monasteries, dormitories, fraternity houses, sorority houses, vacation time-share properties; and
(c) 
Institutional facilities where people are cared for or live on a twenty-four-hour basis in a supervised environment, including, but not limited to, board and care facilities, assisted living facilities, halfway houses, group homes, congregate care facilities, social rehabilitation facilities, alcohol and drug centers, convalescent facilities, hospitals, nursing homes, mental hospitals, detoxification facilities, prisons, jails, reformatories, detention centers, correctional centers, and prerelease centers.
SOLID WASTE DISPOSAL
Shall mean the storage, treatment, utilization, processing or final disposition of solid waste as described in N.J.A.C. 7:26-1.6 or the storage of unsecured materials as described in N.J.A.C. 7:13-2.3 for a period of greater than six months as specified in N.J.A.C. 7:26 which have been discharged, deposited, injected, dumped, spilled, leaked, or placed into any land or water such that such solid waste may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.
SPECIAL FLOOD HAZARD AREA
The greater of the following:
(a) 
Land in the floodplain within a community subject to a 1% or greater chance of flooding in any given year, shown on the FIRM as Zone V, VE, V1-3, A, AO, A1-30, AE, A99, or AH;
(b) 
Land and the space above that land, which lies below the peak water surface elevation of the flood hazard area design flood for a particular water, as determined using the methods set forth in the New Jersey Flood Hazard Area Control Act in N.J.A.C. 7:13;
(c) 
Riparian buffers as determined in the New Jersey Flood Hazard Area Control Act in N.J.A.C. 7:13. Also referred to as the "AREA OF SPECIAL FLOOD HAZARD."
START OF CONSTRUCTION
The start of construction is as follows:
(a) 
For other than new construction or substantial improvements, under the Coastal Barrier Resources Act (CBRA),[2] this is the date the building permit was issued, provided that the actual start of construction, repair, rehabilitation, addition, placement or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a building on site, such as the pouring of a slab or footing, the installation of piles, the construction of columns or any work beyond the stage of excavation; or the placement of a manufactured (mobile) home on a foundation. For a substantial improvement, actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.
(b) 
For the purposes of determining whether proposed construction must meet new requirements when National Flood Insurance Program (NFIP) maps are issued or revised and base flood elevation's (BFEs) increase or zones change, the start of construction includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation.
Permanent construction does not include land preparation, such as clearing, grading, and filling, nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. Such development must also be permitted and must meet new requirements when National Flood Insurance Program (NFIP) maps are issued or revised, and base flood elevation's (BFEs) increase or zones change.
For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.
For determining if new construction and substantial improvements within the Coastal Barrier Resources System (CBRS) can obtain flood insurance, a different definition applies.
STRUCTURE
A walled and roofed building, a manufactured home, or a gas or liquid storage tank that is principally aboveground.
SUBSTANTIAL DAMAGE
Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50% of the market value of the structure before the damage occurred.
SUBSTANTIAL IMPROVEMENT
Any reconstruction, rehabilitation, addition, or other improvement of a structure taking place over a ten-year period, the cumulative cost of which equals or exceeds 50% of the market value of the structure before the "start of construction" of the improvement. The period of accumulation includes the first improvement or repair of each structure that is permanent subsequent to June 15, 2022. This term includes structures which have incurred "substantial damage," regardless of the actual repair work performed. This term also includes structures which have incurred "repetitive loss" or "substantial damage," regardless of the actual repair work performed. The term does not, however, include either:
(a) 
Any project for improvement of a structure to correct existing violations of state or local health, sanitary or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or
(b) 
Any alteration of an historic structure, provided that the alteration will not preclude the structure's continued designation as an "historic structure."
THIRTY-DAY PERIOD
The period of time prescribed by N.J.S.A. 40:49-5 in which a property owner is afforded the opportunity to correct zoning and solid waste disposal after a notice of violation pertaining to this section has been issued.
UTILITY AND MISCELLANEOUS GROUP U BUILDINGS AND STRUCTURES
Buildings and structures of an accessory character and miscellaneous structures not classified in any special occupancy, as described in ASCE 24.
V ZONE CERTIFICATE
A certificate that contains a certification signed by a licensed design professional certifying that the designs, plans, and specifications and the methods of construction in V Zones and Coastal A Zones are in accordance with accepted standards of practice. This certificate also includes an optional breakaway wall design certification for enclosures in these zones below the best available flood hazard data Elevation. A completed certification is required at permit application.
V ZONES
Areas of special flood hazard in which the elevation of the surface water resulting from a flood that has a 1% annual chance of equaling or exceeding the base flood elevation in any given year shown on the Flood Insurance Rate Map (FIRM) zones V1-V30 and VE and is referred to as the "Coastal High Hazard Area."
VARIANCE
A grant of relief from the requirements of this section which permits construction in a manner otherwise prohibited by this section where specific enforcement would result in unnecessary hardship.
VIOLATION
A development that is not fully compliant with these regulations or the flood provisions of the building code. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in this section is presumed to be in violation until such time as that documentation is provided.
WATER SURFACE ELEVATION
The height, in relation to the North American Vertical Datum (NAVD) of 1988, (or other datum, where specified) of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas.
WATERCOURSE
A river, creek, stream, channel, or other topographic feature in, on, though, or over which water flows at least periodically.
WET FLOODPROOFING
Floodproofing method that relies on the use of flood-damage-resistant materials and construction techniques in areas of a structure that are below the local design flood elevation by intentionally allowing them to flood. The application of wet floodproofing as a flood protection technique under the National Flood Insurance Program (NFIP) is limited to enclosures below elevated residential and nonresidential structures and to accessory and agricultural structures that have been issued variances by the community.
[2]
Editor's Note: See 16 U.S.C. § 3501 et seq.
J. 
Subdivisions and other developments.
(1) 
General. Any subdivision proposal, including proposals for manufactured home parks and subdivisions, or other proposed new development in a flood hazard area shall be reviewed to assure that:
(a) 
All such proposals are consistent with the need to minimize flood damage.
(b) 
All public utilities and facilities, such as sewer, gas, electric and water systems are located and constructed to minimize or eliminate flood damage.
(c) 
Adequate drainage is provided to reduce exposure to flood hazards; in Zones AH and AO, adequate drainage paths shall be provided to guide floodwater around and away from structures.
(2) 
Subdivision requirements. Where any portion of proposed subdivisions, including manufactured home parks and subdivisions, lies within a flood hazard area, the following shall be required:
(a) 
The flood hazard area, including floodways, coastal high hazard areas, and Coastal A Zones, and base flood elevations, as appropriate, shall be delineated on tentative subdivision plats.
(b) 
Residential building lots shall be provided with adequate buildable area outside the floodway.
(c) 
The design criteria for utilities and facilities set forth in these regulations and appropriate codes shall be met.
K. 
Site improvement.
(1) 
Encroachment in floodways. Development, land disturbing activity, and encroachments in floodways shall not be authorized unless it has been demonstrated through hydrologic and hydraulic analyses required in accordance with § 540-527E(3)(a) of these regulations, that the proposed encroachment will not result in any increase in the base flood level during occurrence of the base flood discharge. If § 540-527E(3)(a) is satisfied, proposed elevation, addition, or reconstruction of a lawfully existing structure within a floodway shall also be in accordance with § 540-527O(2) of this section and the floodway requirements of N.J.A.C. 7:13.
(2) 
Prohibited in floodways. The following are prohibited activities:
(a) 
The storage of unsecured materials is prohibited within a floodway pursuant to N.J.A.C. 7:13.
(b) 
Fill and new structures are prohibited in floodways per N.J.A.C. 7:13.
(3) 
Coastal High Hazard Areas (V Zones) and Coastal A Zones. In Coastal High Hazard Areas and Coastal A Zones:
(a) 
New buildings shall only be authorized landward of the reach of mean high tide.
(b) 
The placement of manufactured homes shall be prohibited except in an existing manufactured home park or subdivision.
(c) 
Basements or enclosures that are below grade on all sides are prohibited.
(d) 
The use of fill for structural support of buildings is prohibited.
(4) 
Sewer facilities. All new and replaced sanitary sewer facilities, private sewage treatment plants (including all pumping stations and collector systems) and on-site waste disposal systems shall be designed in accordance with the New Jersey septic system regulations contained in N.J.A.C. 14A and N.J.A.C. 7:9A, the UCC Plumbing Subcode (N.J.A.C. 5:23) and Chapter 7, ASCE 24, to minimize or eliminate infiltration of floodwater into the facilities and discharge from the facilities into flood waters, or impairment of the facilities and systems.
(5) 
Water facilities. All new and replacement water facilities shall be designed in accordance with the New Jersey Safe Drinking Water Act (N.J.A.C. 7:10) and the provisions of Chapter 7 ASCE 24, to minimize or eliminate infiltration of floodwater into the systems.
(6) 
Storm drainage. Storm drainage shall be designed to convey the flow of surface waters to minimize or eliminate damage to persons or property.
(7) 
Streets and sidewalks. Streets and sidewalks shall be designed to minimize potential for increasing or aggravating flood levels.
(8) 
Limitations on placement of fill. Subject to the limitations of these regulations, fill shall be designed to be stable under conditions of flooding including rapid rise and rapid drawdown of floodwater, prolonged inundation, and protection against flood-related erosion and scour. In addition to these requirements, when intended to support buildings and structures (Zone A only), fill shall comply with the requirements of the UCC (N.J.A.C. 5:23). Proposed fill and encroachments in flood hazard areas shall comply with the flood storage displacement limitations of N.J.A.C. 7:13.
(9) 
Limitations on sites in Coastal High Hazard Areas (V Zones) and Coastal A Zones. In coastal high hazard areas and Coastal A Zones, alteration of sand dunes shall be permitted only when the engineering analysis required by § 540-527E(3)(d) of these regulations demonstrates that the proposed alteration will not increase the potential for flood damage. Construction or restoration of dunes under or around elevated buildings and structures shall comply with § 540-527O(9)(c) of these regulations and as permitted under the NJ Coastal Zone Management Rules (N.J.A.C. 7:7).
(10) 
Hazardous materials. The placement or storage of any containers holding hazardous substances in a flood hazard area is prohibited unless the provisions of N.J.A.C. 7:13 which cover the placement of hazardous substances and solid waste is met.
L. 
Manufactured homes.
(1) 
General. All manufactured homes installed in flood hazard areas shall be installed pursuant to the Nationally Preemptive Manufactured Home Construction and Safety Standards Program (24 CFR 3280).
(2) 
Elevation. All new, relocated, and replacement manufactured homes to be placed or substantially improved in a flood hazard area shall be elevated such that the bottom of the frame is elevated to or above the elevation specified in § 540-527O(2).
(3) 
Foundations. All new, relocated, and replacement manufactured homes, including substantial improvement of existing manufactured homes, shall be placed on permanent, reinforced foundations that are designed in accordance with Section R322 of the Residential Code.
(4) 
Anchoring. All new, relocated, and replacement manufactured homes to be placed or substantially improved in a flood hazard area shall be installed using methods and practices which minimize flood damage and shall be securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement. This requirement is in addition to applicable state and local anchoring requirements for resisting wind forces.
(5) 
Enclosures. Fully enclosed areas below elevated manufactured homes shall comply with the requirements of § 540-527O(2).
(6) 
Protection of mechanical equipment and outside appliances. Mechanical equipment and outside appliances shall be elevated to or above the elevation of the bottom of the frame required in § 540-527O(2) of these regulations.
Exception. Where such equipment and appliances are designed and installed to prevent water from entering or accumulating within their components and the systems are constructed to resist hydrostatic and hydrodynamic loads and stresses, including the effects of buoyancy, during the occurrence of flooding up to the elevation required by § 540-527O(2), the systems and equipment shall be permitted to be located below that elevation. Electrical wiring systems shall be permitted below the design flood elevation provided they conform to the provisions of NFPA 70 (National Electric Code).
M. 
Recreational vehicles.
(1) 
Placement prohibited. The placement of recreational vehicles shall not be authorized in coastal high hazard areas and in floodways.
(2) 
Temporary placement. Recreational vehicles in flood hazard areas shall be fully licensed and ready for highway use and shall be placed on a site for less than 180 consecutive days.
(3) 
Permanent placement. Recreational vehicles that are not fully licensed and ready for highway use, or that are to be placed on a site for more than 180 consecutive days, shall meet the requirements of § 540-527O(2) for habitable buildings.
N. 
Tanks.
(1) 
Tanks. Underground and aboveground tanks shall be designed, constructed, installed, and anchored in accordance with ASCE 24 and N.J.A.C. 7:13.
O. 
Other development and building work.
(1) 
General requirements for other development and building work. All development and building work, including man-made changes to improved or unimproved real estate for which specific provisions are not specified in these regulations or the Uniform Construction Code (N.J.A.C. 5:23), shall:
(a) 
Be located and constructed to minimize flood damage;
(b) 
Meet the limitations of § 540-527E(3)(a) of this section when located in a regulated floodway;
(c) 
Be anchored to prevent flotation, collapse or lateral movement resulting from hydrostatic and hydrodynamic loads, including the effects of buoyancy, during the conditions of flooding up to the local design flood elevation determined according to § 540-527B(3);
(d) 
Be constructed of flood-damage-resistant materials as described in ASCE 24 Chapter 5;
(e) 
Have mechanical, plumbing, and electrical systems above the local design flood elevation determined according to § 540-527B(3) or meet the requirements of ASCE 24 Chapter 7 which requires that attendant utilities are located above the local design flood elevation unless the attendant utilities and equipment are:
[1] 
Specifically allowed below the local design flood elevation; and
[2] 
Designed, constructed, and installed to prevent floodwaters, including any backflow through the system from entering or accumulating within the components.
(f) 
Not exceed the flood storage displacement limitations in fluvial flood hazard areas in accordance with N.J.A.C. 7:13; and
(g) 
Not exceed the impacts to frequency or depth of off-site flooding as required by N.J.A.C. 7:13 in floodways.
(2) 
Requirements for habitable buildings and structures.
(a) 
Construction and elevation in A Zones not including Coastal A Zones.
[1] 
No portion of a building is located within a V Zone.
[2] 
No portion of a building is located within a Coastal A Zone, unless a licensed design professional certifies that the building's foundation is designed in accordance with ASCE 24, Chapter 4.
[3] 
All new construction and substantial improvement of any habitable building (as defined in § 540-527I) located in flood hazard areas shall have the lowest floor, including basement, together with the attendant utilities (including all electrical, heating, ventilating, air-conditioning and other service equipment) and sanitary facilities, elevated to or above the local design flood elevation as determined in § 540-527B(3), be in conformance with ASCE Chapter 7, and be confirmed by an elevation certificate.
[4] 
All new construction and substantial improvements of nonresidential structures shall:
[a] 
Have the lowest floor, including basement, together with the attendant utilities (including all electrical, heating, ventilating, air-conditioning and other service equipment) and sanitary facilities, elevated to or above the local design flood elevation as determined in § 540-527B(3), be in conformance with ASCE Chapter 7, and be confirmed by an elevation certificate; or
[b] 
Together with the attendant utility and sanitary facilities, be designed so that below the local design flood elevation, the structure:
[i] 
Meets the requirements of ASCE 24 Chapters 2 and 7; and
[ii] 
Is constructed according to the design plans and specifications provided at permit application and signed by a licensed design professional, is certified by that individual in a Floodproofing Certificate, and is confirmed by an elevation certificate.
[5] 
All new construction and substantial improvements with fully enclosed areas below the lowest floor shall be used solely for parking of vehicles, building access, or storage in an area other than a basement and which are subject to flooding. Enclosures shall:
[a] 
For habitable structures, be situated at or above the adjoining exterior grade along at least one entire exterior wall, in order to provide positive drainage of the enclosed area in accordance with N.J.A.C. 7:13; enclosures (including crawlspaces and basements) which are below grade on all sides are prohibited;
[b] 
Be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters unless the structure is nonresidential and the requirements of § 540-527O(2)(a)[4][b] are met;
[c] 
Be constructed to meet the requirements of ASCE 24, Chapter 2;
[d] 
Have openings documented on an elevation certificate; and
[e] 
Have documentation that a deed restriction has been obtained for the lot if the enclosure is greater than six feet in height. This deed restriction shall be recorded in the Office of the County Clerk or the Registrar of Deeds and Mortgages in which the building is located, shall conform to the requirements in N.J.A.C. 7:13, and shall be recorded within 90 days of receiving a Flood Hazard Area Control Act permit or prior to the start of any site disturbance (including preconstruction earth movement, removal of vegetation and structures, or construction of the project), whichever is sooner. Deed restrictions must explain and disclose that:
[i] 
The enclosure is likely to be inundated by floodwaters which may result in damage and/or inconvenience.
[ii] 
The depth of flooding that the enclosure would experience to the flood hazard area design flood elevation.
[iii] 
The deed restriction prohibits habitation of the enclosure and explains that converting the enclosure into a habitable area may subject the property owner to enforcement.
(b) 
Construction and elevation in V Zones and Coastal A Zones.
[1] 
All new construction and substantial improvements shall be constructed according to structural designs, plans and specifications conforming with ASCE 24 Chapter 4 which are signed by a licensed design professional and certified by that individual in a V Zone Certificate.
[2] 
All new construction and substantial improvement of any habitable building (as defined in § 540-527I) located in coastal high hazard areas shall have the lowest horizontal structural member, together with the attendant utilities (including all electrical, heating, ventilating, air-conditioning and other service equipment) and sanitary facilities, elevated to the local design flood elevation as determined in § 540-527B(3), be in conformance with ASCE Chapter 7, and be confirmed by an elevation certificate.
[3] 
All new construction and substantial improvements of nonresidential structures shall:
[a] 
Have the lowest horizontal structural member, including basement, together with the attendant utilities (including all electrical, heating, ventilating, air-conditioning and other service equipment) and sanitary facilities, elevated to or above the local design flood elevation as determined in § 540-527B(3), be in conformance with ASCE 24 Chapter 7, and be confirmed by an elevation certificate; or
[b] 
Together with the attendant utility and sanitary facilities, be designed so that below the local design flood elevation, the structure:
[i] 
Meets the requirements of ASCE 24 Chapters 4 and 7; and
[ii] 
Is constructed according to the design plans and specifications provided at permit application and signed by a licensed design professional, is certified by that individual in a Floodproofing Certificate, and is confirmed by an elevation certificate.
[4] 
All new construction and substantial improvements shall have the space below the lowest floor either free of obstruction or constructed with nonsupporting breakaway walls, open wood latticework, or insect screening intended to collapse under wind and water loads without causing collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system. All breakaway walls shall be constructed according to structural designs, plans and specifications conforming with ASCE 24 Chapter 4, signed by a licensed design professional, and certified by that individual in a breakaway wall certificate.
[5] 
All new construction and substantial improvements with fully enclosed areas below the lowest floor shall be used solely for parking of vehicles, building access, or storage in an area other than a basement and which are subject to flooding. Enclosures shall:
[a] 
Be situated at or above the adjoining exterior grade along at least one entire exterior wall, in order to provide positive drainage of the enclosed area in accordance with N.J.A.C. 7:13; enclosures (including crawlspaces and basements) which are below grade on all sides are prohibited.
[b] 
Be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters unless the structure is nonresidential and the requirements of § 540-527O(2)(b)[3][b] are met;
[c] 
Be constructed to meet the requirements of ASCE 24, Chapter 4;
[d] 
Have openings documented on an elevation certificate and have breakaway wall construction documented on a breakaway wall certificate unless the requirements of § 540-527O(b)[3][b] are met for a nonresidential structure; and
[e] 
Have documentation that a deed restriction has been obtained for the lot if the enclosure is greater than six feet in height. This deed restriction shall be recorded in the Office of the County Clerk or the Registrar of Deeds and Mortgages in which the building is located, shall conform to the requirements in N.J.A.C. 7:13, and shall be recorded within 90 days of receiving a Flood Hazard Area Control Act permit or prior to the start of any site disturbance (including preconstruction earth movement, removal of vegetation and structures, or construction of the project), whichever is sooner. Deed restrictions must explain and disclose that:
[i] 
The enclosure is likely to be inundated by floodwaters which may result in damage and/or inconvenience;
[ii] 
The depth of flooding that the enclosure would experience to the flood hazard area design flood elevation;
[iii] 
The deed restriction prohibits habitation of the enclosure and explains that converting the enclosure into a habitable area may subject the property owner to enforcement.
[6] 
Enclosures are prohibited for new construction or substantial improvements; or for new construction or substantial improvements, enclosures shall be less than 295 square feet in size.
(3) 
Garages and accessory storage structures. Garages and accessory storage structures shall be designed and constructed in accordance with the Uniform Construction Code.
(4) 
Fences. Fences in floodways that have the potential to block the passage of floodwater, such as stockade fences and wire mesh fences, shall meet the requirements of § 540-527E(3)(a) of these regulations. Pursuant to N.J.A.C. 7:13, any fence located in a floodway shall have sufficiently large openings so as not to catch debris during a flood and thereby obstruct floodwaters, such as barbed-wire, split-rail, or strand fence. A fence with little or no open area, such as a chain-link, lattice, or picket fence, does not meet this requirement. Foundations for fences greater than six feet in height must conform with the Uniform Construction Code. Fences for pool enclosures having openings not in conformance with this section but in conformance with the Uniform Construction Code to limit climbing require a variance as described in § 540-527G of this section.
(5) 
Retaining walls, sidewalks, and driveways. Retaining walls, sidewalks and driveways that involve placement of fill in floodways shall meet the requirements of § 540-527E(3)(a) of these regulations and N.J.A.C. 7:13.
(6) 
Swimming pools. Swimming pools shall be designed and constructed in accordance with the Uniform Construction Code. Aboveground swimming pools and below-ground swimming pools that involve placement of fill in floodways shall also meet the requirements of § 540-527E(3)(a) of these regulations. Aboveground swimming pools are prohibited in floodways by N.J.A.C. 7:13.
(7) 
Roads and watercourse crossings.
(a) 
For any railroad, roadway, or parking area proposed in a flood hazard area, the travel surface shall be constructed at least one foot above the Flood Hazard Area Design Elevation in accordance with N.J.A.C. 7:13.
(b) 
Roads and watercourse crossings that encroach into regulated floodways or riverine waterways with base flood elevations where floodways have not been designated, including roads, bridges, culverts, low- water crossings and similar means for vehicles or pedestrians to travel from one side of a watercourse to the other side, shall meet the requirements of § 540-527E(3)(a) of these regulations.
(8) 
Other development in Coastal High Hazard Areas (Zone V) and Coastal A Zones. In Coastal High Hazard Areas (V Zones) and Coastal A Zones, development activities other than buildings and structures shall be permitted only when also authorized by the appropriate federal, state or local authority; when located outside the footprint of, and not structurally attached to, buildings and structures; and when analyses prepared by a licensed professional engineer demonstrates no harmful diversion of floodwater or wave run-up and wave reflection that would increase damage to adjacent buildings and structures. Such other development activities include, but are not limited to:
(a) 
Bulkheads, seawalls, retaining walls, revetments, and similar erosion control structures;
(b) 
Solid fences and privacy walls, and fences prone to trapping debris, unless designed and constructed to fail under flood conditions less than the base flood or otherwise function to avoid obstruction of floodwater; and
(c) 
On-site filled or mound sewage systems.
(9) 
Nonstructural fill in Coastal High Hazard Areas (Zone V) and Coastal A Zones. In Coastal High Hazard Areas and Coastal A Zones:
(a) 
Minor grading and the placement of minor quantities of nonstructural fill shall be permitted for landscaping and for drainage purposes under and around buildings.
(b) 
Nonstructural fill with finished slopes that are steeper than one unit vertical to five unit's horizontal shall be permitted only when an analysis prepared by a licensed professional engineer demonstrates no harmful diversion of floodwater or wave run-up and wave reflection that would increase damage to adjacent buildings and structures.
(c) 
Sand dune construction and restoration of sand dunes under or around elevated buildings are permitted without additional engineering analysis or certification of the diversion of floodwater or wave run-up and wave reflection where the scale and location of the dune work is consistent with local beach-dune morphology and the vertical clearance is maintained between the top of the sand dune and the lowest horizontal structural member of the building.
P. 
Temporary structures and temporary storage.
(1) 
Temporary structures. Temporary structures shall be erected for a period of less than 180 days. Temporary structures shall be anchored to prevent flotation, collapse or lateral movement resulting from hydrostatic loads, including the effects of buoyancy, during conditions of the base flood. Fully enclosed temporary structures shall have flood openings that are in accordance with ASCE 24 to allow for the automatic entry and exit of flood waters.
(2) 
Temporary storage. Temporary storage includes storage of goods and materials for a period of less than 180 days. Stored materials shall not include hazardous materials.
(3) 
Floodway encroachment. Temporary structures and temporary storage in floodways shall meet the requirements of § 540-527E(3)(a) of these regulations.
Q. 
Utility and Miscellaneous Group U.
(1) 
Utility and Miscellaneous Group U. In accordance with Section 312 of the International Building Code, Utility and Miscellaneous Group U includes buildings and structures that are accessory in character and miscellaneous structures not classified in any specific occupancy in the Building Code, including, but not limited to, agricultural buildings, aircraft hangars (accessory to a one- or two-family residence), barns, carports, communication equipment structures (gross floor area less than 1,500 square feet), fences more than six feet (1,829 mm) high, grain silos (accessory to a residential occupancy), livestock shelters, private garages, retaining walls, sheds, stables, tanks and towers.
(2) 
Flood loads. Utility and miscellaneous Group U buildings and structures, including substantial improvement of such buildings and structures, shall be anchored to prevent flotation, collapse or lateral movement resulting from flood loads, including the effects of buoyancy, during conditions up to the local design flood elevation as determined in § 540-527B(3).
(3) 
Elevation. Utility and miscellaneous Group U buildings and structures, including substantial improvement of such buildings and structures, shall be elevated such that the lowest floor, including basement, is elevated to or above the local design flood elevation as determined in § 540-527B(3) and in accordance with ASCE 24. Utility lines shall be designed and elevated in accordance with N.J.A.C. 7:13.
(4) 
Enclosures below base flood elevation. Fully enclosed areas below the design flood elevation shall be constructed in accordance with § 540-527O(2) and with ASCE 24 for new construction and substantial improvements. Existing enclosures such as a basement or crawlspace having a floor that is below grade along all adjoining exterior walls shall be abandoned, filled-in, and/or otherwise modified to conform with the requirements of N.J.A.C. 7:13 when the project has been determined to be a substantial improvement by the Floodplain Administrator.
(5) 
Flood-damage-resistant materials. Flood-damage-resistant materials shall be used below the local design flood elevation determined in § 540-527B(3).
(6) 
Protection of mechanical, plumbing, and electrical systems. Mechanical, plumbing, and electrical systems, equipment and components, heating, ventilation, air-conditioning, plumbing fixtures, duct systems, and other service equipment, shall be elevated to or above the local design flood elevation determined in § 540-527B(3).
Exception: Electrical systems, equipment and components, and heating, ventilating, air-conditioning, and plumbing appliances, plumbing fixtures, duct systems, and other service equipment shall be permitted to be located below the local design flood elevation, provided that they are designed and installed to prevent water from entering or accumulating within the components and to resist hydrostatic and hydrodynamic loads and stresses, including the effects of buoyancy, during the occurrence of flooding to the local design flood elevation in compliance with the flood-resistant construction requirements of ASCE 24. Electrical wiring systems shall be permitted to be located below the local design flood elevation provided they conform to the provisions of NFPA 70 (National Electric Code).
A. 
As a condition of approval and the continuance of any use, occupancy of any structure, and operation of any process or equipment, the applicant shall supply evidence, satisfactory to the Municipal Agency, or to its designated representative, that the proposed use, structure, process, or equipment will conform fully with all of the applicable performance standards.
(1) 
As evidence of compliance, the Municipal Agency may require certification of tests by appropriate government agencies or by recognized testing laboratories, any costs thereof to be borne by the applicant.
(2) 
The Municipal Agency may require that specific types of equipment, machinery, or devices be installed, or that specific operating procedures or methods be followed if the government agencies or testing laboratories examining the proposed operation shall determine that the use of such specific types of machinery, equipment, devices, procedures or methods are required in order to assure compliance with the applicable performance standards.
(3) 
Permits and certificates required by other government agencies shall be submitted to the Municipal Agency as proof of compliance with applicable codes.
(4) 
If appropriate permits, tests and certifications are not or cannot be provided by the applicant, then the Municipal Agency or Administrative Officer (Zoning Officer) may require that instruments and/or other devices, or professional reports or laboratory analysis be used to determine compliance with the following performance standards for an existing or proposed use and the cost thereof shall be borne by the owner, applicant, or specific use in question.
(5) 
Conditional permit.
(a) 
In the event a determination cannot be made at the time of application that a proposed use, process or piece of equipment will meet the standards established in this section, the Municipal Agency may issue or may recommend issuance of a conditional permit. The conditional permit would be based on submission of evidence that the proposed use, process or equipment will meet the standards established herein after completion or installation and operation.
(b) 
Within 30 days after a conditional permit is granted, a certificate of occupancy shall be applied for and satisfactory evidence submitted that all standards established by this section have been met.
B. 
Applicability and enforcement of performance standards.
(1) 
Applicability.
(a) 
Prior to construction and operation: Any application for development or building permit for a use which shall be subject to performance standards shall be accompanied by submissions, attachments, certifications as required by this section, and a sworn statement filed by the owner of the subject property or the operator of the proposed use that said use will be operated in accordance with the performance standards set forth herein.
(b) 
For existing structures: Any existing structure or use which is, after the effective date of this chapter, allowed to deteriorate or is modified so as to reduce its compliance with these standards will be deemed to be in noncompliance and to constitute a violation.
(2) 
Continued compliance. Continued compliance with performance standards is required and shall be enforced by the Construction Official or Administrative Officer (Zoning Officer).
(3) 
Termination of violation. All violations shall be terminated within 30 days of notice or shall be deemed a separate violation for each day following and subject to fines as set forth herein.
(4) 
Violation inspection. Whenever, in the opinion of the Construction Official or Administrative Officer (Zoning Officer), there is a reasonable probability that any use or occupancy violates the regulations of this article, they are hereby empowered to employ a qualified technician or technicians to perform investigations, measurements and analyses to determine whether or not the regulations of this section are being violated. In the event that a violation is found to exist, the violator shall be liable for the reasonable fees of the technicians employed to perform such investigations, measurements, and analyses.
C. 
Performance standards established.
(1) 
Noise.
(a) 
The definitions contained in the Noise Control Regulations of the New Jersey Department of Environmental Protection (N.J.A.C. 7:29-1.1 et seq.) are hereby incorporated by reference without being set forth in full with regard to this section.
(b) 
No person shall cause, suffer, allow or permit, nor shall any application for development be approved which produces sound in excess of the standards listed below when measured at any location outside of the lot on which the use or source of sound is located:
[1] 
Continuous airborne sound which has a sound level in excess of 50 dBA;
[2] 
Continuous airborne sound which has an octave band sound pressure level in decibels which exceeds the values listed below in one or more octave bands; or
Octave Band Center Frequency
(Hz)
Octave Band Sound Pressure Level
(dB)
31.5
86
63
71
125
61
250
53
500
48
1,000
45
2,000
42
4,000
40
8,000
38
[3] 
Impulsive sound in air which has an impulsive sound level in excess of 80 decibels.
(c) 
The provisions of this section shall not apply to:
[1] 
Agriculture.
[2] 
Bells, chimes or carillons while being used in conjunction with religious services.
[3] 
Commercial motor vehicle operations.
[4] 
Emergency energy-release devices.
[5] 
Emergency work to provide electricity, water, or other public utilities when public health or safety are involved.
[6] 
National Warning System (NAWAS) signals or devices used to warn the community of attack or imminent public danger such as flooding or explosion. These systems are controlled by the N.J. Civil Defense and Disaster Control Agency.
[7] 
Noise of aircraft flight operations.
[8] 
Public celebrations.
[9] 
Public roadways.
[10] 
Stationary emergency signaling devices.
[11] 
Surface carriers engaged in commerce by railroad.
[12] 
Rail and/or truck operations conducted by or in conjunction with the U.S. Naval Ordnance Depot - Earle.
[13] 
The unamplified human voice.
[14] 
Use of explosive devices. These are regulated by the N.J. Department of Labor and Industry under the 1960 Explosives Act (N.J.S.A. 21:1A-128), and in the case of USNAD Earle, the U.S. Department of Defense.
(2) 
Air pollution. No substance shall be emitted into the atmosphere in quantities which are injurious to human, plant or animal life or to property, or which will interfere unreasonably with the comfortable enjoyment of life and property anywhere in the municipality. All provisions of the New Jersey Air Pollution Control Code, as amended and as augmented, and all the following provisions stated, whichever shall be more stringent, shall be complied with.
(a) 
Smoke. In any zone, no smoke, the shade or appearance of which is darker than No. 1 of the Ringelmann Smoke Chart, shall be emitted into the open air from any incinerator or fuel-burning equipment; provided, however, that smoke emitted during the cleaning of a fire box or the building of a new fire, the shade or appearance of which is no darker than No. 2 of the Ringelmann Smoke Chart, may be permitted for a period or periods aggregating no more than three minutes in any 30 consecutive minutes.
(b) 
Solid particles.
[1] 
In any residential zone, no discharge of solid particles through a stack, duct or vent shall be permitted that is greater than 50% of the allowable emission in pounds per hour established by Chapters 7 and 8 of the New Jersey Air Pollution Control Code.
[2] 
In any other zone, except industrial zones, the allowable discharge shall be 75% of the allowable emission permitted by the New Jersey Air Pollution Control Code.
[3] 
In the industrial zone, the allowable discharge shall be the allowable emission permitted by the New Jersey Air Pollution Control Code.
[4] 
No open burning shall be permitted in any zone.
[5] 
All incinerators shall be approved by the State Department of Environmental Protection.
[6] 
Any road, parking area, driveway, truck loading or unloading station, or any other exterior area having a substantial movement of vehicles or equipment shall be paved or otherwise stabilized during construction sufficient to prevent the generation of dust from the movement of such vehicles or equipment.
(c) 
Odors. In any zone, no odorous material may be emitted into the atmosphere in quantities sufficient to be detected without instruments. Any process, which may involve the creation or emission of any odors, shall be provided with a secondary safeguard system, so that control will be maintained. Table 1 (Odor Thresholds in Air) in Part 1 (Odor Thresholds for 53 Commercial Chemicals) of "Research on Chemical Odors," copyrighted October 1968, by the Manufacturing Chemists Association, Inc., Washington, D.C., shall be used as a guide in determining quantities of offensive odors.
(3) 
Liquid waste. No liquid waste shall be discharged into any watercourse, storm drain or sewage collection and disposal system, nor into any ground sump, any well or percolation area, except in accordance with plans approved by the Municipal Public Works Department, Department of Health and Social Services, and Municipal Engineer, and where required by the New Jersey Department of Environmental Protection.
(4) 
Solid waste. All uses in the municipality shall:
(a) 
Assume full responsibility for adequate and regular collection and removal of all refuse, except if the municipality assumes the responsibility.
(b) 
Comply with all applicable provisions of the Air Pollution Control Code.
(c) 
Comply with all provisions of the State Sanitary Code, Chapter 8, "Refuse Disposal," Public Health Council of the State Department of Environmental Protection.
(d) 
Permit no accumulation on the property of any solid waste, junk, or other objectionable materials.
(e) 
Not engage in any sanitary landfill operation on the property, except as may be permitted by other municipal codes and ordinances.
(5) 
Radiation. All use of materials, equipment or facilities, which are or may be sources of radiation, shall comply with all controls, standards and requirements of the U.S. Atomic Energy Act of 1965, as amended, and any codes, rules or regulations promulgated under such Act, as well as the N.J. Radiation Protection Law, N.J.S.A. 26:2D et seq., as amended, whichever is more stringent.
(6) 
Fire and explosion hazards. All activities shall be carried on only in buildings classified as fireproof by the Building Code of the municipality,[1] and as determined by the Fire Department. The operation shall be conducted in such a manner and with such precautions against fire and explosion hazards as to produce no explosion hazard as determined by the New Jersey Inspection Bureau of Fire Prevention to a use on an adjacent property and must conform to the rules and regulations of the most recent adopted edition of the Fire Prevention Code of the National Board of Fire Underwriters and the Middletown Township Fire Department.
[1]
Editor's Note: See Ch. 198, Construction Codes, Uniform.
(7) 
Vibration. There shall be no vibration which shall be discernible to the human sense of feeling beyond the boundaries of the lot on which the source is located. At no point on or beyond the boundary of any lot shall the maximum ground transmitted steady state or impact vibration caused by any use or activity (except those not directly under the control of the property user) exceed a particle velocity of 0.10 inch per second for impact vibrations. Particle velocity is to be determined by the formula 6.28F x A, where F is the frequency of the vibration in cycles per second and A is the maximum single amplitude displacement of the vibration in inches. For the purpose of measuring vibrations, a three-component measuring system shall be used. For the purpose of this chapter, steady-state vibrations are vibrations which are continuous, or vibrations in discrete impulses more frequent than 100 per minute. Discrete impulses which do not exceed 100 per minute shall be considered impact vibrations.
(8) 
Electromagnetic interference. There shall be no electromagnetic interference that:
(a) 
Adversely affects at any point the operation of any equipment other than that belonging to the creator of such interference.
(b) 
Is not in conformance with the regulations of the Federal Communication Commission.
(9) 
Heat. Every use and activity shall be so operated that it does not raise the ambient temperature more than 2° C. at or beyond the boundary of any lot line.
(10) 
Fire-resistant construction. All new construction and additions shall be fire-resistant construction in accordance with the requirements of the State Uniform Construction Code.
(11) 
Glare.
(a) 
There shall be no direct or sky-reflected glare exceeding 1 1/2 footcandles measured at the boundaries of the lot on which the source is located.
(b) 
This regulation shall not apply to lights which are used solely for the illumination of entrances or exits or driveways leading to a parking lot. Any operation or activity producing intense glare shall be conducted so that direct and indirect illumination from the source of light shall not cause illumination in excess of 0.1 footcandle in residential districts.
(12) 
Lighting and illumination. Artificial lighting or illumination provided on any property or by any use shall adhere to the following standards:
(a) 
The illumination provided by artificial lighting on the property shall not exceed 0.5 footcandle beyond any property line.
(b) 
Spotlights or other types of artificial lighting that provide a concentrated beam of light shall be so directed that the beam of light does not extend beyond any property lines.
(c) 
Spotlights or other types of artificial lighting used to illuminate signs or building faces shall not emit beams of light that extend beyond the vertical plane of the sign or building face that they illuminate and shall not be located in such a manner as to cause the beams of light to be reflected upon any adjoining property, public street or vehicular circulation area.
A. 
It is the intent of this section to assure that the public health, safety, and welfare is not impaired by the neglected maintenance of the buildings and property. It is further intended to assure that site improvements required by a municipal agency are properly maintained and operable. It shall be the Administrative Officer's responsibility to enforce this section where property conditions pose a hazard to the public or where a property owner fails to maintain a required site improvement.
B. 
It shall be the responsibility of every property owner, tenant, developer and applicant to maintain in a safe and orderly condition, all buildings and land in the municipality which they own, use, occupy or have maintenance responsibility for in accordance with the following regulations.
(1) 
Maintenance of all land uses within the municipality shall include, but is not limited to, the following:
(a) 
Potholes and other pavement failures within paved parking areas shall be repaired on a regular basis, but in no event shall potholes or pavement failures be left unrepaired for a period in excess of 30 days. If such potholes or pavement failures are hazardous to vehicles, they shall be appropriately barricaded and marked to warn motorists.
(b) 
Paint striping, traffic control signs and markings, and all other signs and graphics shall be maintained in a condition whereby they can be clearly seen and are legible.
(c) 
Curbing, other pavement edging and sidewalks shall be maintained free of cracks and holes which would present a hazard to pedestrians.
(d) 
Unpaved or gravel parking and pedestrian areas shall be maintained and regularly regraded in a manner which will keep the area free of holes and other severe grade changes which would be hazardous to vehicular and pedestrian usage.
(e) 
All areas of the site shall be kept free of debris and other materials. All users of shopping carts or similar items shall provide for the regular pickup of such shopping carts or similar items from parking areas and other portions of the site at least once every hour during their business hours. All shopping carts or similar items shall either be stored indoors or in a location adjacent to the building specifically set aside for such storage during nonbusiness hours.
(f) 
All plantings and ground cover shall be regularly watered and cut. All dead plant materials shall be removed or replaced (if such plantings are required under this article, they shall be replaced only). All lawn or other nonpaved areas shall be kept trimmed and free from weeds and other noxious growth.
(g) 
Building finishes shall be maintained reasonably free of peeling or cracked paint, rust or other unsightly conditions.
(h) 
All refuse stored outdoors shall be kept within containers having lids, in a manner that the refuse is not visible to pedestrians or persons within vehicles on or off the site. Such containers shall be stored only within side or rear yard areas and shall not be located to interfere with vehicular or pedestrian circulation.
(i) 
All outdoor lighting shall be maintained in a working condition.
(2) 
All land uses for which development (site plan or subdivision) approval is granted subsequent to the adoption of this chapter or for which site plan or subdivision approval was previously granted under regulations heretofore in effect, shall be required to maintain all structures and improvements shown on the approved site plan or subdivision plan in a safe and orderly condition. In addition to the maintenance responsibilities specified in § 540-529B(1) above, additional maintenance responsibilities shall include, but are not limited to, the following:
(a) 
All ground cover and plantings within screening and landscaping areas shown on an approved site plan or subdivision shall be regularly maintained. When plant material shown on an approved site plan or subdivision dies, it shall be replaced within the first 30 days of the next planting season.
(b) 
Where a site plan specifies an outdoor refuse storage area, refuse shall only be stored outdoors in such areas. Refuse containers located elsewhere on the site shall not be permitted.
(3) 
Failure of the responsible property owner, tenant, developer and/or applicant to maintain property in accordance with the provisions of this section shall in violation of this chapter subject to the penalties prescribed in § 540-309 of this chapter.
A. 
In carrying out all its duties and responsibilities, including but not limited to the nomination of landmarks and districts for historic designation pursuant to § 540-314I and the review of regulated activities pursuant to § 540-944C, the Commission shall be guided by the "Secretary of the Interior's Standards for Rehabilitation of Historic Buildings," which may hereafter be amended and which are given as follows:
(1) 
Every reasonable effort shall be made to provide a compatible use for a property which requires minimal alteration of the building, structure, or site and its environment, or to use a property for its originally intended purpose.
(2) 
The distinguishing original qualities or character of a building, structure, or site and its environment shall not be destroyed. The removal or alteration of any historic material or distinctive architectural features should be avoided when possible.
(3) 
All buildings, structures, and sites shall be recognized as products of their own time. Alterations that have no historical basis and which seek to create an earlier appearance shall be discouraged.
(4) 
Changes which may have taken place in the course of time are evidence of the history and development of a building, structure, or site and its environment. These changes may have acquired significance in their own right, and this significance shall be recognized and respected.
(5) 
Distinctive stylistic features or examples of skilled craftsmanship which characterize a building, structure, or site shall be treated with sensitivity.
(6) 
Deteriorated architectural features shall be repaired rather than replaced, wherever possible. In the event replacement is necessary, the new material should match the material being replaced in composition, design, color, texture, and other visual qualities. Repair or replacement of missing architectural features should be based on accurate duplications of features, substantiated by historic, physical or pictorial evidence rather than on conjectural designs or the availability of different architectural elements from other buildings or structures.
(7) 
The surface cleaning of structures shall be undertaken with the gentlest means possible. Sandblasting and other cleaning methods that will damage the historic building materials shall not be undertaken.
(8) 
Every reasonable effort shall be made to protect and preserve archaeological resources affected by or adjacent to any project.
(9) 
Contemporary design for alterations and additions to existing properties shall not be discouraged when such alterations and additions do not destroy significant historical, architectural or cultural material, and such design is compatible with the size, scale, color, material, and character of the property, neighborhood or environment.
(10) 
Wherever possible, new additions or alterations to structures shall be done in such a manner that if such additions or alterations were to be removed in the future, the essential form and integrity of the structure would be unimpaired.
B. 
On a historic landmark or within a historic district designated pursuant to Article IX, and regulated pursuant to § 540-944, visual compatibility factors shall be considered by the Landmarks Commission in its review. It is the intent of this section to preserve the integrity and authenticity of historic landmarks and districts and to insure the compatibility of new structures. If past architectural styles are to be used, a copy of a specific structure is preferable to an amalgam of building types and styles. In regard to an application for any regulated activity pursuant to § 540-944, the following visual compatibility factors shall be considered:[1]
(1) 
Height. The height of the proposed building shall be visually compatible with adjacent buildings.
(2) 
Proportion of building's front facade. The relationship of the width of the building to the height of the front elevation shall be visually compatible with buildings and places to which it is visually related.
(3) 
Proportion of openings within the facility. The relationship of the width of windows to the height of windows in a building shall be visually compatible with the buildings and placed to which it is visually related.
(4) 
Rhythm of solids to voids in front facades. The relationship of solids to voids in the front facade of a building shall be visually compatible with the buildings and places to which it is visually related.
(5) 
Rhythm of spacing of buildings on streets. The relationship of the building to the open space between it and adjoining buildings shall be visually compatible with the buildings and places to which it is visually related.
(6) 
Rhythm of entrance and/or porch projections. The relationship of entrance and porch projections to the street shall be visually compatible with the buildings and places to which it is visually related.
(7) 
Relationship of materials, texture and color. The relationship of materials, texture and color of the facade and roof of a building shall be visually compatible with the predominant materials used in the buildings to which it is visually related.
(8) 
Roof shapes. The roof shape of a building shall be visually compatible with buildings to which it is visually related.
(9) 
Walls of continuity. Appurtenances of a building such as walls, open-type fencing and evergreen landscape masses shall form cohesive walls of enclosure along a street, to the extent necessary to maintain visual compatibility with the buildings and places to which it is visually related.
(10) 
Scale of building. The size of a building, the mass of a building in relation to open spaces, the windows, door openings, porches and balconies shall be visually compatible with the buildings and places to which it is visually related.
(11) 
Directional expression of front elevation. A building shall be visually compatible with buildings and places to which it is visually related in its directional character, whether this be vertical character, horizontal character or nondirectional character.
(12) 
Exterior features. A structure's related exterior features such as lighting, fences, signs, sidewalks, driveways, and parking areas shall be compatible with the features of those structures to which it is visually related and shall be appropriate for the historic period for which the structure is significant.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
C. 
In preparing a recommendation regarding a regulated activity pursuant to § 540-944C, the Landmarks Commission shall consider whether the proposed activity is reasonable and appropriate and is not in conflict with the intent and purpose of the provisions related to historic sites and districts as exemplified by the following standards and regulations:
(1) 
Regulated activities other than demolitions and removals. In regard to an application involving any regulated activity other than demolition or removal, the following matters shall be considered:
(a) 
The extent to which the proposed use of any building or structure involved may have a negative impact on the continued viability of the historic landmark or district.
(b) 
The extent to which the proposed activity will adversely affect the public's view of a historic landmark or a structure within a historic district.
(c) 
If a historic building, place, or structure is involved:
[1] 
The extent to which the proposed change will detract from the architectural or historic character of the historic landmark or from the criteria which were the basis of the designation of the historic landmark.
[2] 
The extent to which the proposed change will result in the loss of old, unusual, or uncommon design, craftsmanship, textures or materials that cannot be reproduced or can be reproduced only with great difficulty.
[3] 
The landmark's importance to the Township and the extent to which its historic or architectural interest would be adversely affected to the detriment of the public interest by the proposed activity.
(d) 
If within a historic district:
[1] 
The extent to which the proposed change will detract from the character or ambiance of the historic district or from the criteria which were the basis of the designation of the historic district.
[2] 
The extent to which the proposed change is visually compatible with the buildings, places and structures to which it would be visually related in terms of the visual compatibility factors set forth in § 540-530.
(2) 
Demolitions. In regard to an application to demolish a historic landmark, or any improvement within a historic district, the following matters shall be considered:
(a) 
Its historic, architectural, cultural or scenic significance in relation to the criteria established in § 540-944.
(b) 
If it is within a historic district, its significance to the district as a key, contributing or noncontributing structure and the probable impact of its removal on the character and ambiance of the district and the criteria which were the basis of the designation of the district.
(c) 
Its potential for use for those purposes currently permitted by the Zoning Ordinance.
(d) 
Its structural condition and the economic feasibility of alternatives to the proposal.
(e) 
Its importance to the municipality and the extent to which its historical or architectural value is such that its removal would be detrimental to the public interest.
(f) 
The extent to which it is of such old, unusual or uncommon design, craftsmanship, texture or material that it could not be reproduced or could be reproduced only with great difficulty and expense.
(g) 
The extent to which its retention would promote the general welfare by maintaining and increasing the real estate values, generating business, attracting tourists, attracting new residents, stimulating interest and study in architecture and design, or making the municipality an attractive and desirable place in which to live.
(3) 
In regard to an application to move a historic landmark or any building or structure in a historic district to a new location, the following matters shall be considered:
(a) 
The historic loss to the site of original location and, if the present location is within a historic district, to the historic district as a whole.
(b) 
The reasons for not retaining the landmark or structure at its present site.
(c) 
The compatibility, nature, and character of the current and of the proposed surrounding areas as they relate to the protection of interest and values referred to in this section.
(d) 
If the proposed new location is within a district, visual compatibility factors as set forth in § 540-530.
(e) 
The probability of significant damage to the landmark or structure itself.
(f) 
If it is to be removed from Middletown Township, the proximity of the proposed new location to the Township, including the accessibility to the residents of the Township and other citizens.
[Amended 2-6-2006 by Ord. No. 2005-2851]
A. 
Purpose. Pursuant to the Fair Housing Act, N.J.S.A. 52:27D-301 et seq., the New Jersey Council on Affordable Housing (COAH) Middletown Department of Planning and Community Development adopted substantive regulations, N.J.A.C. 5:93-1 et seq., setting forth requirements as to affordable units within a municipality's housing element and fair share plan. The purpose of this section is to ensure that these affordable units comply with applicable COAH requirements so as to ensure their credit-worthiness.
B. 
Affordable housing requirements. Any applicant seeking to develop one or more affordable housing units shall submit an application for development, including a narrative description of the overall project and the affordable housing components of the project. All affordable housing units established or created shall be deed-restricted so that affordability is maintained for at least 30 years.
C. 
Affordable Housing Administrator.
(1) 
The Director of the Department of Planning and Community Development shall serve as the Township's Affordable Housing Administrator. The Affordable Housing Administrator shall be responsible for the monitoring and administration of the Township's affordable housing activities, including the resale and or rerental of affordable housing units.
(2) 
The role of Middletown Township Department of Planning and Community Development: to provide assurances that low- and moderate-income units are created with controls on affordability over time and that low- and moderate-income households occupy these units, Middletown Township will enter into an agreement with the Middletown Township Department of Planning and Community Development to be responsible for insuring affordability of sales and rental units over time. The Middletown Township Department of Planning and Community Development will be responsible for those activities detailed in N.J.A.C. 5:93-9.1(a).
(3) 
In addition, the Middletown Township Department of Planning and Community Development will be responsible for utilizing the verification and certification procedures outlined in N.J.A.C. 5:93-9.1(b) in placing households in low- and moderate-income units.
(4) 
Newly constructed low- and moderate-income sales units will remain affordable to low- and moderate-income households for at least 30 years. The Middletown Township Department of Planning and Community Development will require all conveyances of newly constructed units to contain appropriate deed restriction and mortgage liens designed to ensure affordability and to preserve the units for low- and moderate-income households in the event of a foreclosure.
(5) 
Housing units created through the conversion of a nonresidential structure will be considered a new housing unit and will be subject to thirty-year controls on affordability. The Middletown Township Department of Planning and Community Development will require an appropriate deed restriction and mortgage lien.
D. 
Inclusionary development.
(1) 
Affordable housing compliance.
(a) 
Middletown's Department of Planning and Community Development will serve as the administrative agent for all affordable housing units within the Township. The Department will therefore be responsible for all responsibilities delineated in the regulations, including but not limited to affirmative marketing of affordable housing units; soliciting, scheduling, conducting and following up on interviews with interested households; obtaining financial information to determine eligibility; providing written notification to each applicant as to the determination of eligibility or noneligibility; creating and maintaining a referral list of eligible applicant households; furnishing attorneys or closing agents proper forms of deed restrictions and mortgages; creating and maintaining a file on each restricted unit for its control period; providing annual reports to COAH as required.
(b) 
The developer of any project containing affordable housing shall pay a fee to the Township of $1,000 for each affordable housing unit. Said fee shall be paid in a lump sum, prior to the issuance of the first certificate of occupancy of an affordable unit. This fee can be waived where the developer is a nonprofit agency and where said agency will perform the eligibility procedures described above.
(2) 
The low/moderate split. Middletown's new construction or inclusionary, or growth share component will be divided equally between low- and moderate-income households as per N.J.A.C. 5:94 et seq.
(3) 
Except for inclusionary developments constructed pursuant to low-income tax credit regulations:
(a) 
At least 1/2 of all units within each inclusionary development will be affordable to low-income households.
(b) 
At least 1/2 of all rental units will be affordable to low-income households.
(c) 
Pursuant to N.J.A.C. 5:93-7.2, with the exception of inclusionary developments constructed pursuant to the 4% low-income tax credit regulations pursuant to the Internal Revenue Code Section 42h, at least 1/3 of all affordable units in each bedroom distribution (as delineated in N.J.A.C. 5:94 et seq.) shall be affordable to low-income households.
(4) 
Bedroom distribution. Inclusionary developments that are not restricted to senior citizens will be structured so that:
(a) 
The combination of efficiency and one-bedroom units is at least 10% and no greater than 20% of the total low- and moderate-income units.
(b) 
At least 30% of all low- and moderate-income units are two-bedroom units.
(c) 
At least 20% of all low- and moderate-income units are three-bedroom units.
(d) 
Low- and moderate-income units restricted to senior citizens may utilize a modified bedroom distribution. At a minimum, the number of bedrooms will equal the number of senior citizen low- and moderate-income units within the inclusionary development.
(5) 
Establishing affordable sale and rental prices for affordable units. The following criteria will be used in determining maximum rents and sale prices:
(a) 
Efficiency units will be affordable to one-person households.
(b) 
One-bedroom units will be affordable to one-and-one-half-person households.
(c) 
Two-bedroom units will be affordable to three-person households.
(d) 
Three-bedroom units will be affordable to four-and-one-half-person households.
(e) 
Four-bedroom units shall be affordable to six-person households.
(f) 
Median income by household size will be established by a regional weighted average of the uncapped Section 8 income limits published by HUD, as per N.J.A.C. 5:94 et seq.
(g) 
The maximum rents of low- and moderate-income units within each inclusionary development shall be affordable to households earning no more than 60% of median income. Developments shall have an overall affordability range of 52% for rental units.
(h) 
In averaging an affordability range of 52% for rental units, developers and/or municipal sponsors of rental units may establish one rent for a low-income unit and one rent for a moderate-income unit for each bedroom distribution.
(i) 
For both owner-occupied and rental units, the low- and moderate-income units will utilize the same heating source as market units within an inclusionary development.
(j) 
Low-income housing units shall be reserved for households with a gross household income less than or equal to 50% of the median income approved by the Council. Moderate-income housing units shall be reserved for households with a gross household income less than 80% of the median income approved by the Council. For example, a household earning 48% of median income may be placed in any low-income unit; however, a household earning 53% may not quality for a low-income unit. A household earning 67% of median may be placed in any moderate-income housing unit. A household earning less than 50% of median may be placed in a moderate-income housing unit. Low- and moderate-income units shall not be offered to households that are not income eligible without Council approval pursuant to N.J.A.C. 5:94 et seq.
(k) 
The regulations outlined in N.J.A.C. 5:94 et seq. and 9.16 will be applicable for purchased and rental units.
(6) 
Additional criteria for rental units. For rental units, developers and/or municipal sponsors may:
(a) 
Establish one rent for a low-income unit and one for a moderate-income unit for each bedroom distribution.
(b) 
Gross rents, including an allowance for utilities, shall be established so as not to exceed 30% of the gross monthly income of the appropriate household size referenced in Subsection D(5)(a) through (e) above. Those tenant-paid utilities that are included in the utility allowance shall be so stated in the lease. The allowance for utilities shall be consistent with the utility allowance approved by HUD for use in New Jersey.
(7) 
Additional criteria for sale units.
(a) 
The initial price of a low- and moderate-income owner-occupied single-family housing unit will be established so that after a down payment of 5%, the monthly principal, interest, homeowner's insurance, property taxes (based on the restricted value of the low- and moderate-income unit) and condominium or homeowner fee does not exceed 28% of the eligible gross monthly income.
(b) 
The initial price of a low- and moderate-income owner-occupied single-family housing unit shall be established so that after a down payment of 5%, the monthly principal, interest, homeowner and private mortgage insurances, property taxes (property taxes shall be based on the restricted value of low- and moderate-income units) and condominium or homeowner fees do not exceed 28% of the eligible gross monthly income.
(c) 
Pursuant to N.J.A.C. 5:94 et seq., Middletown shall utilize the uniform deed restriction found at N.J.A.C. 5:80-26 for all affordable units. Pursuant also to N.J.A.C. 5:80-26, a judgment of foreclosure on any of these units will not extinguish this deed restriction.
(d) 
Middletown will require a certificate of reoccupancy for any occupancy of a low- or moderate-income sales unit resulting from a resale as per N.J.A.C. 5:93-9.3(c).
(e) 
Municipal, state, nonprofit and seller options regarding sale units will be consistent with N.J.A.C. 5:94 et seq. Municipal rejection of repayment options for sale units will be consistent with N.J.A.C. 5:94.
(f) 
The continued application of options to create, rehabilitate or maintain low- and moderate-income sale units will be consistent with N.J.A.C. 5:94.
(g) 
Eligible capital improvements prior to the expiration of controls on sale units will be consistent with N.J.A.C. 5:94.
(h) 
The regulations detailed in N.J.A.C. 5:94 will be applicable to low- and moderate-income units that are for sale units.
(8) 
In zoning for inclusionary developments, the following is required:
(a) 
Low- and moderate-income units will be built in accordance with the schedule included in N.J.A.C. 5:94:
Minimum Percent of Low- and Moderate-Income Units Completed
Percent of Marketing Housing Units Completed
0%
25%
10%
25% + 1 unit
50%
50%
75%
75%
100%
90%
(b) 
A newly constructed unit is considered complete when the certificate of occupancy is issued.
(c) 
A design of inclusionary developments that integrates low- and moderate-income units with market units is encouraged as per N.J.A.C. 5:94.
(9) 
For growth share projects where there are fewer than six affordable housing units being created, certificates of occupancy shall be issued for the affordable units prior to the issuance of a certificate of occupancy for the last market rate unit. For projects involving more than six units, the schedule for completion of the affordable units shall be established as a condition of either Planning or Zoning Board approval.
(10) 
Rehabilitated units.
(a) 
Rehabilitated owner-occupied single-family housing units that are improved to code standard will be subject to affordability controls for at least 10 years and all other COAH requirements.
(b) 
Rehabilitated renter-occupied housing units that are improved to code standard will be subject to affordability controls for at least 10 years and all other COAH requirements.
(11) 
Rental units.
(a) 
Newly constructed low- and moderate-income rental units will remain affordable to low- and moderate-income households for at least 30 years. The Middletown Township Department of Planning and Community Development will require an appropriate deed restriction and mortgage lien subject to the court's approval.
(b) 
Controls on affordability on accessory apartments shall remain in effect for at least 10 years. To be eligible for a rental bonus pursuant to N.J.A.C. 5:93-5.15, controls on affordability shall remain in effect for a least 30 years.
(c) 
Controls on affordability on alternative living arrangements shall remain in effect for at least 10 years. To be eligible for a rental bonus (pursuant to N.J.A.C. 5:93-5.15), controls on affordability shall remain in effect for at least 30 years.
(12) 
Section 14(b) of the Fair Housing Act N.J.A.C. 52:27D-301 et seq. incorporates the need to eliminate unnecessary cost-generating features from Middletown's land use ordinances. To further this end, Middletown shall ensure that all inclusionary projects are held in conformance with the residential site improvement standards and that the Planning Board expeditiously processes applications for development of inclusionary projects. Nothing herein shall prevent Middletown from seeking to demonstrate that more stringent standards may be appropriate. The Township will cooperate with developers of inclusionary projects to grant such reasonable variances necessary to construct inclusionary development.
(13) 
Tenant and occupancy selection.
(a) 
For those seeking housing, an Application for Affordable Housing shall be submitted in a form approved by the Township, to the Department of Planning and Community Development. Said application will contain basic information requests in order to determine eligibility and needs of the applicant. The information will be then placed into a database maintained by the Township. This database shall provide the basis for tenant and purchaser selection, in accordance with the rules of COAH.
(b) 
Additional information may be required by the Township in accordance with the Uniform Housing Affordability Controls (UHAC), pursuant to N.J.A.C. 5:80-26.1 et seq.
(c) 
Knowingly or intentionally filing false or misleading information in order to obtain an affordable housing unit shall be grounds for disqualification, even if the applicant is otherwise qualified.
(d) 
Any developer, property owner or applicant who knowingly or intentionally violates the rules of the Township and or the New Jersey Council on Affordable Housing shall be subject to penalty.
(14) 
Household size priorities.
(a) 
A household of the size provided shall have priority over households with a lesser number of persons.
[1] 
One-bedroom unit: two persons.
[2] 
Two-bedroom unit: three persons.
[3] 
Four-bedroom unit: four or more persons.
(b) 
All applicants shall be classified by the Administrator in one of the priority categories set forth above on the basis of the information provided in the initial application.
(15) 
Calculation of resale and rerental prices shall be performed by the Township Planning Department upon application by the property owner or landlord. Landlords shall pay a fee of $50 to the Township when requesting rerental calculation and new tenant selection. All calculations shall be in accordance with COAH rules.
(16) 
The requirements of the Uniform Housing Affordability Controls (UHAC), N.J.A.C. 5:80-26.1 et seq., shall be utilized and adhered to for the purposes of:
Limitations on Indebtedness Secured by Ownership Unit; Subordination
5:80-26.8
Capital Improvements to Ownership Units
5:80-26.9
Affirmative Marketing Procedures
5:80-26.15
Household Certification and Referral
5:80-26.16
Procedures for Changing Administrative Agent
5:80-26.17
Enforcement
5:80-26.18
Appeals
5:80-26.19
Expiration of Controls Procedures
5:80-26.20 through 5:80-26.26
(17) 
Waiver. In the event of a special hardship or in the event that a minor technical modification of these regulations is necessary to effectively implement the policy of this section, the Board may waive or modify those regulations relating to occupancy selection, sale or resale prices, or income eligibility standards, provided that such waiver of modification is consistent with the intent of these regulations and the land development regulations; and does not violate COAH policy, regulations or statute.
(18) 
Permitted modifications and exceptions for affordable housing.
(a) 
Undersized lots. Any parcel of land owned by the Township or by a nonprofit corporation which has entered into a contract with the Township to construct affordable detached single-family dwellings and which is located in a zoning district which district permits single-family dwellings and which parcel has an area or frontage less than that prescribed for a lot in the zone in which said lot is located, may be used as a lot for the construction of a single-family dwelling and permitted accessory structures, provided that the lot area and width is greater than 33% of the required area and frontage in the zoning district in which said lot is located, and further provided that no interior lot of less than 5,000 square feet in area of having a frontage less than 50 feet shall be so used; and provided that no corner lot having less than 6,000 square feet in area or less than 75 feet of frontage along each facing road shall be so used and provided, moreover, that all other regulations provided for the zone district in this chapter with respect to coverage, setback, and side yard requirements as stipulated in the regulations are complied with, with the following exceptions:
[1] 
The combined total side yard requirements may be reduced by six inches for each foot a lot is less than the required frontage prescribed for the zone in which said lot is located, where necessary to permit construction thereon of a building having a minimum gross floor area prescribed under this section, and provided that no principal building or accessory building shall be placed any nearer than five feet to any property line except where specifically permitted by this chapter.
[2] 
The maximum percent of lot coverage may be increased, provided the resultant lot coverage complies with the most restrictive single-family residence zone to which the area of the undersized lot conforms, provided that in no case shall the coverage exceed 35%.
[3] 
Lots owned by the Township or a nonprofit agency which has entered into a contract with the Township to construct affordable housing may be developed with a duplex where the lot meets or exceeds the minimum lot size to the zone, provided that such a structure shall be architecturally compatible with the area in which it is being constructed.
(b) 
Relaxation of design standards. The approving authority when acting upon a site plan or subdivision application which includes provision for lower-income housing in accordance with § 540-531, and affordable housing zone may relax standards as follows if the relaxation does not create health and safety concerns for either the Township or the future residents of a development.
[1] 
A maximum of 20% of the curbing required within parking areas § 540-627F may be eliminated. Curbing will be required, however, where drainage control is needed and where erosion potential cannot adequately be addressed by alternate methods.
[2] 
The minimum sizes, spacing, and quantities of landscape material required pursuant to § 540-627, Off-street parking, § 540-622, Landscaping and shade trees, § 540-645, Street trees, and § 540-606, Buffer areas and screening, may be reduced by a maximum of 20%; however, there shall be no reduction in the buffering requirement between a tract which is the subject of an application which includes provisions for lower-income housing and abutting tracts which are zoned for detached single-family dwellings.
[3] 
Combination curbs and sidewalks may be permitted on all streets within a development. The approving authority may recommend use of funds collected by the Township from other developers as a result of sidewalk waivers for the construction of a maximum of 20% of the combination curbs and sidewalks.
(19) 
Affordable housing fund. A contribution to the Township fund for the production of affordable housing for low- and moderate-income households shall be required.
(a) 
Purpose. In Holmdel Builder's Association vs. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985, N.J.S.A. 52:27D-301 et seq., and the State Constitution subject to COAH's developing rules. The purpose of this section is to establish standards for the collection, maintenance and expenditure of development fees pursuant to COAH's rules. Fees collected pursuant to this section shall be used for the sole purpose of providing low- and moderate-income housing. This section shall be interpreted within the framework of COAH's rules on development fees.
(b) 
Retention of fees. Any affordable housing development fees collected by the Township of Middletown prior to December 13, 1990, shall be retained pursuant to COAH's rules regarding the retention of development fees.
(c) 
Calculation and collection of required development fees.
[1] 
For any residential development, the applicant shall be required to pay a fee of 1% of the equalized assessed value of any eligible residential activity pursuant to Subsection D(19)(d) of this section.
[Amended 2-22-2005 by Ord. No. 2005-2808]
[2] 
When the Municipal Agency approves an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (a "d" variance), the Board may impose a development fee of up to 6% of the equalized assessed value for each additional unit that may be realized, the coverage amount on the homeowner warranty document for each additional for-sale unit, or the appraised value on the document utilized for construction financing for each additional rental unit. (Example: If an approval allows four units to be constructed on a site that was zoned for two units, the fees could equal 1% of either the equalized assessed value, the coverage amount on the homeowner warranty document, or the appraised value on the document utilized for construction financing on the first two units; and 6% of either the equalized assessed value, the coverage amount on the homeowner warranty document, or the appraised value on the document utilized for construction financing for the two additional units.) However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.
[Amended 2-22-2005 by Ord. No. 2005-2808]
[3] 
For any nonresidential development, the applicant shall be required to pay a fee of 2% of the equalized assessed value of any eligible nonresidential activity pursuant to Subsection D(19)(d) of this section.
[Amended 2-22-2005 by Ord. No. 2005-2808]
[4] 
When the Municipal Agency approves an increase in floor area pursuant to N.J.S.A. 40:55D-70d(4) (a "d" variance), the Board may impose a development fee of up to 6% on the additional floor area realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base floor area for the purposes of calculating the bonus development fee shall be the highest floor area permitted by right during the two-year period preceding the filing of the variance application.
[Amended 2-22-2005 by Ord. No. 2005-2808]
[5] 
Where the Municipal Agency approves any "d" variance, other than as already specified herein, the Board may impose a development fee of up to 6% of the additional value added to the property due to the granting of said variance. Where it is determined that there is no increase in value, or where a use variance is required simply for a change in use involving less than 5,000 square feet of gross floor area and where no new construction is proposed, no fee shall be imposed.
[Amended 7-18-2005 by Ord. No. 2005-2825]
[6] 
In the case of any mixed-use development containing both residential and nonresidential uses, the required fee shall be based upon a separate calculation for each use utilizing the cost factors specified in Subsection D(19)(c)[1] and [2] of this section.
[Amended 7-18-2005 by Ord. No. 2005-2825]
(d) 
Collection of fees. The applicant shall pay the fee at the time of issuance of certificates of occupancy. At the issuance of certificates of occupancy, the Tax Assessor shall calculate the equalized assessed value and the appropriate development fee. Where multiple certificates of occupancy will be required, an adjusted assessed value will be established for each unit of occupancy, and the appropriate fee shall be collected for each certificate of occupancy.
[Amended 7-18-2005 by Ord. No. 2005-2825]
(e) 
Eligible exaction, ineligible exactions and exemptions.
[Amended 7-18-2005 by Ord. No. 2005-2825]
[1] 
Developers of low- and moderate-income units shall be exempt from paying development fees, except that in a mixed-use development where the residential component will contain a percentage of affordable housing units and where the nonresidential development is in one or more completely detached structures, a development fee of 1/2 of the standard fee for nonresidential development shall be imposed.
[2] 
Developers that expand an existing structure shall pay a development fee. The development fee shall be calculated based on the increase in the equalized assessed value of the improved structure.
[3] 
Developers of places of worship, group homes, child-care centers, and nonprofit and/or tax-exempt corporations, are exempt from development fees. This shall not apply to developments on land sold by such an entity to be developed by a nonexempt entity. Alterations or expansion to any residential structure which does not result in an additional dwelling unit shall be exempt. Minor subdivisions where more than one new dwelling will be constructed or where more than one new certificate of occupancy will be required shall not be exempt.
[Amended 7-18-2005 by Ord. No. 2005-2825]
[4] 
Developments that received approval between December 13, 1990, and effective date of this section shall be exempt from paying a development fee unless an amended approval is required due to a substantial change in the application, or unless otherwise approved by the Council on Affordable Housing.
(f) 
Housing trust fund and use of funds.
[1] 
There is hereby created an interest-bearing Housing Trust Fund in United Counties Trust Company and/or in such other official depository as may be from time to time approved by the governing body in accordance with law for the purpose of receiving development fees from residential and nonresidential developers. All development fees paid by developers pursuant to this section shall be deposited in this fund. No money shall be expended from the Housing Trust Fund unless the expenditure conforms to a spending plan approved by COAH.
[2] 
If COAH determines that Middletown Township is not in conformance with COAH's rules on development fees, COAH is authorized to direct the manner in which all development fees collected pursuant to this section shall be expended. Such authorization is pursuant to this section; COAH's rules on development fees; and the written authorization from the governing body to United Counties Trust Company and/or such other official depository as may be from time to time approved by the governing body in accordance with law.
[3] 
Money deposited in a housing trust fund may be used for any activity approved by COAH for addressing low- and moderate-income housing obligation of the Township. Such activities may include, but are not necessarily limited to: housing rehabilitation; new construction; regional contribution agreements; the purchase of land for low- and moderate-income housing; extensions and/or improvements of roads and infrastructure to low- and moderate-income housing sites; assistance designed to render unit to be more affordable to lo- and moderate-income people; and administrative costs necessary to implement the housing element. The expenditure of all money shall conform to a spending plan approved by COAH.
[4] 
At least 30% of the revenues collected shall be devoted to render units more affordable. Examples of such activities include, but are not limited for: down payment assistance; low-interest loans; and rental assistance.
[5] 
No more than 20% of the revenues shall be expended on administrative costs necessary to develop, revise or implement the housing element. Examples of eligible administrative activities include: personnel; consultant services; space costs; consumable supplies; and rental or purchase of equipment.
[6] 
Development fee revenues shall not be expended to reimburse the Township for housing activities that preceded substantive certification.
(g) 
Expiration of section. This section shall expire if:
[1] 
COAH dismisses or denies Middletown Township's petition for substantive certification.
[2] 
COAH revokes substantive certification or its certification of this section.
[3] 
Substantive certification/judgment of repose expires prior to (the Township) filing an adopted housing element with COAH, petitioning for substantive certification or receiving COAH's approval of this section.
(h) 
Monitoring. The Township shall complete and return all monitoring forms related to the collection of fees, expenditure of revenues and implementation of the plan certified by the Council or approved by the court. Quarterly financial reports and annual program implementation and auditing reports shall be completed on forms designed by the Council.
(i) 
The Township's ability to collect fees and the Council's approval of this section and spending plan shall be in compliance with the requirement of N.J.A.C. 5:92-18.17.
(j) 
Should this section or any provision of this section be declared illegal or unconstitutional by a court of competent jurisdiction, the remainder of the section shall remain in full force and effect.
Each property owner is privileged to make a reasonable use of his property even though the flow of surface waters is altered thereby and causes some harm to others. However, unreasonably harmful interference with the flow of waters shall be prohibited. The Zoning Officer, in consultation with the Township Engineer, shall determine if the interference is unreasonably harmful and shall have the authority under the enforcement powers of § 540-306 to require that any violations of this provision be remedied.
A. 
The parking or storage of any unregistered motor vehicle on any residential premises is expressly prohibited, except as specifically provided in this section.
B. 
As utilized herein, the phrase "parking or storage" shall mean the keeping or maintaining of any motor vehicle, irrespective of its state of repair or disrepair, and irrespective of whether it shall be operable, of any vehicle which shall not be properly registered pursuant to the motor vehicular law as regulations of the State of New Jersey, this prohibition shall not apply to vehicles within garages.
C. 
The presence or lack of license plates on any vehicle issued by the State of New Jersey or by any other state or jurisdiction shall be irrelevant, for purposes of this chapter, to whether the vehicle is properly registered, and the penalties provided herein shall be in addition to any penalties provided by law for improper, unauthorized or their illegal use of such license plates.
D. 
Whenever any police officer or Zoning Officer of the Township shall have reason to believe or suspect that any vehicle parked on or about any residential property is not legally and properly registered by the State of New Jersey or by any other state in accordance with the rules and regulations of the State of New Jersey, and shall have further reason to believe or suspect that such parking or storage shall have taken place for seven days, irrespective of whether such days shall be consecutive or cumulative, and irrespective as to whether such days shall be consecutive, cumulative, and irrespective as to whether such parking or storage shall be on the same location at the premises, such officer shall issue a summons for violation of this section.
E. 
A vehicle parked or stored without valid license plates shall be presumed, for purposes of this section, not to be lawfully registered. In all other instances, the burden of proof shall be upon the prosecuting officer, in the usual form and manner.
F. 
The Chief of Police or his assignee, which assignee shall be a superior officer of the Police Department, shall issue permits to any property owner, who shall request, on a short and convenient form to be prepared by the Police Department for such purpose, a waiver of the provisions of the within section affecting such parking and storage, and such waiver permit shall be effective such reasonable period of time, to a maximum of one year, as the circumstances may warrant; provided, however, that the grounds for such waiver shall consist solely of serious personal hardship on the part of the property owner or of a member of his immediate family. As utilized in this subsection, the phrase "serious personal hardship" shall include illness or disability, employment, travel or temporary residence elsewhere, and shall be liberally construed in favor of the property owner.
G. 
Any permit issue pursuant to this section shall be dated and signed by the Chief of Police or his assignee, and shall be prominently displayed near the windshield of any such vehicle.
H. 
Any person may appeal the issuance of non-issuance of such waiver permits, and such appeal shall be to the Municipal Court, and thereafter, to the Superior Court of New Jersey or to such other tribune as may be designated by the laws of New Jersey.[1]
[1]
Editor's Note: Original Subsection I, regarding penalties, which immediately followed this subsection, was repealed at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
I. 
Prior to the issuance by an officer of any summons for violating this section, this officer shall issue a written warning and shall give the alleged violator seven days to remove the unregistered vehicle or to apply for a waiver permit as set forth above. While any such application is pending, no person shall be liable for the penalties set forth herein, nor shall any summons be issued. In the event an application for such permit is denied, such denial shall be in writing and shall personally be delivered, or forwarded by certified mail, to the applicant, who shall have seven days from the receipt of such denial to commence his appeal. Any person aggrieved by the issuance of such permit may appeal its issuance at any time during the period of the existence of the permit.
J. 
The sole issue before the Municipal Court in the event of any such appeal shall be whether the Police Department acted arbitrarily, capriciously or unreasonably in the denial or issuance of such permit. Upon consideration by a higher tribunal, such additional considerations as it may deem appropriate, including the effect, if any, upon the issuance of such permit upon neighbors' property values, may be considered.
[Amended 10-7-2003 by Ord. No. 2003-2737; 12-6-2004 by Ord. No. 2004-2795; 6-19-2006 by Ord. No. 2006-2879]
A. 
Purpose. It shall be the purpose of this section and these regulations to establish a review procedure and criteria for the clearing, regrading or filling of land, where site plan or subdivision review is not otherwise required, in order to avoid or minimize negative environmental impacts and potential impacts on adjoining properties.
B. 
Regulated activities.
(1) 
On any property, activity conducted wholly or cumulatively within any twelve-month period, which results in the removal of trees or vegetation, soil disturbance, grading or importation of fill, including wood chips, which affects an area of more than 3,000 square feet in any zone or the importation of more than 10 cubic yards of fill material, including wood chips.
(2) 
On any property, where the area of activity or disturbance involves slopes of 15% or greater, the removal of trees or vegetation, soil disturbance, grading or importation of fill, including wood chips, which affects an area of more than 1,000 square feet or the importation of more than five cubic yards of fill material, including wood chips.
C. 
Required procedures.
(1) 
Prior to engaging in any regulated activity, the person or persons responsible for the work or the property owner must file an application for development with the Zoning Officer, along with a plan, to scale, showing the proposed area of activity and the extent and nature of the work proposed. The Zoning Officer will transmit the plan and application to the Township Engineer's office.
(2) 
Where it is determined that the proposed activity could result in significant environmental impacts, the Township Engineer's office may require a fully detailed and dimensioned grading plan, prepared by a professional engineer, be submitted, as well as additional supporting documentation as may be necessary.
(3) 
A grading plan review fee must also be paid at this time.
(4) 
An applicant must receive an approved application for development from the Zoning Officer prior to commencing any such regulated activity. Said approval can be conditioned upon implementing measures recommended by the Township Engineer.
(5) 
Where it is determined that a regulated activity may impact environmental features that may be under the jurisdiction of another governmental agency, the Zoning Officer may require approval of said agencies prior to issuing of an approved application for development.
D. 
Review criteria.
(1) 
The Township Engineer shall determine that the proposed regulated activity will not result in negative drainage or erosion impact on adjoining properties, beyond those that may have existed prior to commencing the regulated activity.
(2) 
The Township Engineer shall consider and determine the extent to which alternative or optional measures may exist, in order to mitigate the impacts of the regulated activity.
(3) 
It shall be prohibited to engage in any regulated activity when the purpose is merely a prelude to filing an application for development for either site plan or subdivision approval.
(4) 
These regulations shall not apply to farming activities associated with land under farmland assessment or to any activity undertaken by a governmental agency or public utility.
(5) 
These regulations shall not apply to routine property maintenance, or the removal of dead or diseased trees or the clearing of overgrown or nuisance vegetation.
[Added 8-16-2010 by Ord. No. 2010-3012]
Maintenance of containers; covers required.[1]
A. 
Purpose. The purpose of this section is to govern dumpsters and other refuse containers that are outdoors or exposed to stormwater to be covered at all times and prohibits the spilling, dumping, leaking, or otherwise discharge of liquids, semi-liquids or solids from the containers to the municipal separate storm sewer system(s) operated by the Township of Middletown and/or Township of Middletown Sewerage Authority to protect the waters of the state so as to protect public health, safety and welfare, and to prescribe penalties for the failure to comply.
B. 
Definitions. For the purpose of this section, the following terms, phrases, words, and their derivations shall have the meanings stated herein unless their use in the text of this section clearly demonstrates a different meaning. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number, and words used in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4)
A conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains) that is owned or operated by the Township of Middletown and/or Township of Middletown Sewerage Authority, or other public body, and is designed and used for collecting and conveying stormwater. MS4s, however, do not include combined sewer systems, which are sewer systems that are designed to carry sanitary sewage at all times and to collect and transport stormwater from streets and other sources.
PERSON
Any individual, corporation, company, partnership, firm, association, or political subdivision of this state subject to municipal jurisdiction.
REFUSE CONTAINER
Any waste container that a person controls whether owned, leased, or operated, including dumpsters, trash cans, garbage pails, and plastic trash bags.
STORMWATER
Water resulting from precipitation (including rain and snow) that runs off the land's surface, is transmitted to the subsurface, is captured by separate storm sewers or other sewerage or drainage facilities, or is conveyed by snow removal equipment.
WATERS OF THE STATE
The ocean and its estuaries, all springs, streams and bodies of surface or ground water, whether natural or artificial, within the boundaries of the State of New Jersey or subject to its jurisdiction.
C. 
Prohibited conduct. Any person who controls, whether owned, leased, or operated, a refuse container or dumpster must ensure that such container or dumpster is covered at all times and shall prevent refuse from spilling out or overflowing. Any person who owns, leases or otherwise uses a refuse container or dumpster must ensure that such container or dumpster does not leak or otherwise discharge liquids, semi-liquids or solids to the municipal separate storm sewer system(s) operated by the Township of Middletown or Township of Middletown Sewerage Authority.
D. 
Exceptions to prohibition.
(1) 
Permitted temporary demolition containers.
(2) 
Litter receptacles (other than dumpsters or other bulk containers).
(3) 
Individual homeowner trash and recycling containers.
(4) 
Refuse containers at facilities authorized to discharge stormwater under a valid NJPDES permit.
(5) 
Large bulky items (i.e., furniture, bound carpet and padding, white goods placed curbside for pickup).
E. 
Enforcement. This section shall be enforced by the Police Department, Code Enforcement and/or Department of Public Works, Parks, and Engineering of the Township of Middletown.
F. 
Penalties. Any person(s) who is found to be in violation of the provisions of this section shall be subject to a fine pursuant to § 540-1012 of the Code of the Township of Middletown to each violation.
[1]
Editor's Note: See also Ch. 423, Stormwater Regulations.
[Added 8-16-2010 by Ord. No. 2010-3013]
Retrofitting of existing storm drain inlets.[1]
A. 
Purpose. The purpose of this section is to address the retrofitting of existing storm drain inlets which are in direct contact with repaving, repairing, reconstruction, or resurfacing or alteration of facilities on private property, to prevent the discharge of solids and floatables (such as plastic bottles, cans, food wrappers and other litter) to the municipal separate storm sewer system(s) operated by the Township of Middletown so as to protect public health, safety and welfare, and to prescribe penalties for the failure to comply.
B. 
Definitions. For the purpose of this section, the following terms, phrases, words, and their derivations shall have the meanings stated herein unless their use in the text of this section clearly demonstrates a different meaning. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number, and words used in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4)
A conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains) that is owned or operated by the Township of Middletown and/or Township of Middletown Sewerage Authority, or other public body, and is designed and used for collecting and conveying stormwater. MS4s, however, do not include combined sewer systems, which are sewer systems that are designed to carry sanitary sewage at all times and to collect and transport stormwater from streets and other sources.
PERSON
Any individual, corporation, company, partnership, firm, association, or political subdivision of this state subject to municipal jurisdiction.
STORM DRAIN INLET
An opening in a storm drain used to collect stormwater runoff and includes, but is not limited to a grate inlet, curb-opening inlet, slotted inlet, and combination inlet.
WATERS OF THE STATE
The ocean and its estuaries, all springs, streams and bodies of surface or groundwater, whether natural or artificial, within the boundaries of the State of New Jersey or subject to its jurisdiction.
C. 
Prohibited conduct. No person in control of private property, except a residential lot with one single-family house, shall authorize the repaving, repairing (excluding the repair of individual potholes), resurfacing (including top coating or chip sealing with asphalt emulsion or a thin base of hot bitumen), reconstructing or altering any surface that is in direct contact with an existing storm drain inlet on that property unless the storm drain inlet either:
(1) 
Already meets the design standard below to control passage of solid and floatable materials; or
(2) 
Is retrofitted or replaced to meet the standard in Subsection D below prior to the completion of the project.
D. 
Design standards. Storm drain inlets identified in Subsection C above shall comply with the following standard to control passage of solid and floatable materials through storm drain inlets. For purposes of this subsection, "solid and floatable materials" means sediment, debris, trash, and other floating, suspended, or settleable solids. For exemptions to this standard, see Subsection D(3).
(1) 
Design engineers shall use either of the following grates whenever they use a grate in pavement or another ground surface to collect stormwater from that surface into a storm drain or surface water body under that grate:
(a) 
The New Jersey Department of Transportation (NJDOT) bicycle safe grate, which is described in Chapter 2.4 of the NJDOT Bicycle Compatible Roadways and Bikeways Planning and Design Guidelines (April 1996); or
(b) 
A different grate, if each individual clear space in that grate has an area of no more than seven square inches, or is no greater than 0.5 inches across the smallest dimension.
Examples of grates subject to this standard include grates in grate inlets, the grate portion (non-curb-opening portion) of combination inlets, grates on storm sewer manholes, ditch grates, trench grates, and grates of spacer bars in slotted drains. Examples of ground surfaces include surfaces of roads (including bridges), driveways, parking areas, bikeways, plazas, sidewalks, lawns, fields, open channels, and stormwater basin floors.
(2) 
Whenever design engineers use a curb-opening inlet, the clear space in that curb opening (or each individual clear space, if the curb opening has two or more clear spaces) shall have an area of no more than seven square inches, or be no greater than two inches across the smallest dimensions.
(3) 
This standard does not apply:
(a) 
Where the Municipal Engineer agrees that this standard would cause inadequate hydraulic performance that could not practicably be overcome by using additional or larger storm drain inlets that meet these standards;
(b) 
Where flows are conveyed through any device (e.g., end-of-pipe netting facility, manufactured treatment device, or a catch basin hood) that is designed, at a minimum, to prevent delivery of all solid and floatable materials that could not pass through one of the following:
[1] 
A rectangular space 4 5/8 inches long and 1 1/2 inches wide (this option does not apply for outfall netting facilities); or
[2] 
A bar screen having a bar spacing of 0.5 inch.
(c) 
Where flows are conveyed through a trash rack that has parallel bars with one-inch spacing between the bars; or
(d) 
Where the New Jersey Department of Environmental Protection determines, pursuant to the New Jersey Register of Historic Places Rules at N.J.A.C. 7:4-7.2(c), that action to meet this standard is an undertaking that constitutes an encroachment or will damage or destroy the New Jersey Register listed historic property.
E. 
Enforcement. This section shall be enforced by the Police Department, Code Enforcement and/or Department of Public Works, Parks, and Engineering of the Township of Middletown.
F. 
Penalties. Any person(s) who is found to be in violation of the provisions of this section shall be subject to a fine pursuant to § 540-1012 of the Code of the Township of Middletown for each storm drain inlet that is not retrofitted to meet the design standard.
[1]
Editor's Note: See also Ch. 423, Stormwater Regulations.