[Added 4-2-2012 by Ord. No. 2012-5; amended 4-6-2015 by Ord. No. 2015-6]
A.
This article shall apply to any application for development involving
lands located within (or partially within) the Township Highlands
Area (as illustrated on the Franklin Township Zoning Map as Highlands
Preservation Area") that seeks approval of a site plan, subdivision,
or change in use, where approval of such application would: a) result
in the ultimate disturbance of one acre or more of land; b) produce
a cumulative impervious surface area of 1/4 acre or more; c) in the
case of residential development, create three or more dwelling units;
or d) introduce or expand on any of the following land uses/facilities:
(1)
Landfills;
(2)
Permanent storage or disposal of hazardous wastes, industrial or
municipal sludge or radioactive materials, including solid waste landfills;
(3)
Collection and transfer facilities for hazardous wastes, solid wastes
that contain hazardous materials, and radioactive materials;
(4)
Industrial treatment facility lagoons; or
(5)
Any major or minor potential contaminant source (as identified in
Appendix A and Appendix B of this article, respectively[1]) on lands located within 200 feet of the wellhead of any public community well or public noncommunity well, as these are defined at § 90-79 below.
[1]
Editor's Note: Appendix A and Appendix B are included as attachments to this chapter.
A.
Consistency determinations required. No application for development included in § 90-74 above shall be deemed complete or considered for review by the applicable Land Use Board until and unless the applicant has obtained and provided a copy of:
(1)
A consistency determination from the Highlands Council indicating
that the application is consistent with the Highlands Regional Master
Plan; or
B.
Findings of inconsistency. Where a Highlands Council consistency
determination indicates that an application for development is inconsistent
with the Highlands Regional Master Plan, no such application shall
be deemed complete or considered for review by the applicable Land
Use Board, until or unless the applicant has obtained from the professional(s)
responsible for preparation of the applicant's plans, a certification
indicating that to the best of the knowledge and abilities of such
professional(s), the application has, since review by the Highlands
Council, been revised to achieve consistency with the Highlands Regional
Master Plan, and specifically describing the revisions made to achieve
such consistency.
C.
Checklist waiver. The Township may issue a waiver from the provisions
of this section where it can be established by the applicant and can
be verified by the designated representative(s) of the Township that:
(1)
The activity, improvement or development proposed by the subject application for development has not yet been formally determined to be exempt from the Highlands Act (see § 90-78B below), but eligibility for an exemption has been sufficiently established by the applicant; or
(2)
The activity, improvement or development proposed in the application for development will neither encroach upon a Highlands Resource or Highlands Resource Area, nor be of detrimental impact to any Highlands Resource or Highlands Resource Area as these are identified and delineated in the Highlands Regional Master Plan. The applicant's professional(s) responsible for preparation of the applicant's plan shall establish compliance of the above through a formal certification specifically addressing the Highlands Resources and Resource Areas and related policies and objectives as identified in Chapter 4 of the Highlands Regional Master Plan.
D.
Highlands Council call-up. All municipal waivers or findings of application
completeness issued pursuant to this section shall be issued in writing,
inclusive of a statement indicating the rationale for the determination.
All such determinations shall be subject to Highlands Council call-up
review, and shall include conditions requiring same consistent with
this subsection. The municipality shall, within five calendar days
of issuance of all such determinations, provide a copy of the decision
to the applicant and to the Highlands Council. The Highlands Council
call-up review period shall expire 15 calendar days following its
receipt of same. Upon determining to exercise this authority for call-up
review, the Highlands Council shall transmit notice to the applicant
and the municipality. Absent any such notification from the Highlands
Council within that time frame, the application shall be considered
complete, with the date of the waiver or finding of application completeness
to be as of the date of first issuance by the municipality.
The provisions of this section shall apply in addition to all
requirements concerning public notice for applications for development
as provided under the MLUL[1] and required pursuant to the underlying municipal land
use ordinances.
A.
Notice to Highlands Council of application. The applicant for any
application for development shall provide notice to the Highlands
Council at least 10 days prior to the date on which the application
is scheduled for consideration by the local Board. A copy of the complete
application shall accompany such notice regarding any application
for development involving the potential disturbance of two acres,
or more, or a cumulative increase in impervious coverage of one acre,
or more. The applicant shall provide copies of any subsequent revisions
to such applications to the Highlands Council at the same time these
are provided to the reviewing Board. If such plans or plats have been
prepared in digital form, they shall be provided to the Highlands
Council in a digital format that meets Highlands Council standards
for such submissions.
B.
Notice of decision required. The reviewing Board shall provide a
certified copy of the fully executed resolution memorializing its
final decision regarding any application for development to the Highlands
Council within 10 days of its adoption. This provision shall apply
in all cases, whether the Board approves the application for development,
denies it, or approves it with conditions.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
All Board decisions pertaining to applications for development
involving the ultimate disturbance of two acres or more of land or
a cumulative increase in impervious surface by one acre or more are
subject to call-up and subsequent review by the Highlands Council
in accordance with procedural requirements and time frames established
pursuant to the Highlands Act. The Highlands Council may, on notice
to the applicant within 15 calendar days of receipt of the memorializing
resolution of the reviewing Board, review and require a public hearing
on the application. In that case, subsequent to the hearing the Highlands
Council may approve the application for development, deny it, or issue
an approval with conditions. The following conditions of approval
shall be attached to any application for development approved pursuant
to the MLUL which involves lands within or partially within the Highlands
Preservation Area.
A.
No land disturbance. No land disturbance approved in connection with
an application for development involving the ultimate disturbance
of two acres or more of land or a cumulative increase in impervious
surface by one acre or more shall occur until and unless, either:
(1)
The Highlands Council call-up period has expired without issuance
of a notice seeking review of the application by the Highlands Council;
or
(2)
The Highlands Council has issued notice, and has reviewed the approval
pursuant to N.J.S.A. 13:20-17(a)1 and has determined not to deny or
modify the approval.
B.
Amendments. In the event that Highlands Council review of an approved
application for development pursuant to this section results in a
finding that the plans must be modified, the applicant shall amend
the application accordingly and submit the amended application to
the reviewing Board for approval. Such submissions shall include the
written findings and notice of decision of the Highlands Council and
any subsequent approval by the Land Use Board shall incorporate any
conditions imposed by the Highlands Council.
C.
Approvals conditioned on state approvals. All approvals shall be
subject to the approval of any and all state agencies or other authorities
having jurisdiction over any aspect or aspects of the approved application
for development.
D.
As-built surveys required. Prior to issuance of any final certificate
of occupancy or approval, or to the release of any performance bonding
held in relation to the approved application for development, the
applicant shall provide an "as-built" survey depicting the final site
conditions.
E.
Submission of final plans/plats to Highlands Council. The applicant
shall provide a copy of any final site plan or subdivision plat to
the Highlands Council. If such plans or plats have been prepared in
digital form, they shall be provided to the Highlands Council in a
digital format that meets Highlands Council standards for such submissions
in lieu of copies printed on paper.
A.
Exclusions. The following specific improvements and related applications
shall be excluded from the provisions of this article:
(1)
The reconstruction, within the same footprint, of any building or
other structure lawfully existing as of the effective date of this
article, in the event of its destruction or partial destruction by
fire, storm, natural disaster, or any other unintended circumstance.
(2)
Any improvement or alteration to a building or other structure lawfully
existing as of the effective date of this article, where such improvement
or alteration is necessary for compliance with the provisions of the
Americans with Disabilities Act,[1] or to otherwise provide accessibility to the disabled.
[1]
Editor's Note: See 42 U.S.C. § 12101 et seq.
(3)
Any agricultural or horticultural use or development that would not
result in either:
(a)
An increase, since the date of enactment of the Highlands Act (August 10, 2004), either individually or cumulatively, of new agricultural impervious cover of greater than 3% to the total land area of a farm management unit. Solar panels shall not be included in any calculation of agricultural impervious cover (all terms as defined in § 90-79, below); or
(b)
Construction of three or more residential dwelling units (including
accessory dwelling units) served by individual on-site septic system(s).
B.
Exemptions. Any activity, improvement or development project listed
and demonstrated to constitute a Highlands Act exemption shall be
exempt from the provisions of this article. Formal demonstration of
a Highlands Act exemption for an application for development involving
lands located (or partially located) in the Preservation Area shall
consist of one of the following:
(1)
State agency determination. State agency determinations shall consist
of a Highlands applicability determination (HAD) issued by the NJDEP
indicating that the proposal qualifies as a Highlands Act exemption.
(2)
Municipal determination. Pursuant to Chapter 90, Article XIV, entitled "Highlands Act Exemption Determinations," effective as of April 6, 2015, for any application under this article involving Highlands Act Exemption No. 4, 6, 7 or 8, the applicant may request and shall be deemed to have satisfied the evidentiary requirement by obtaining a municipal exemption determination issued by the municipal exemption designee, provided such determination indicates that the proposal qualifies as a Highlands Act exemption. The applicant may rely upon the findings of a municipal exemption determination to the same extent and with the same protections as would apply in the case of a HAD issued by the NJDEP.
For the purpose of this article, the following terms, phrases,
words, and their derivations shall have the meanings stated herein
unless their use in the text of this article 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.
Agricultural or horticultural buildings, structures or facilities
with or without flooring, residential buildings and paved areas, but
not meaning temporary coverings.
Construction for the purposes of supporting common farmsite
activities, including but not limited to the production, harvesting,
storage, grading, packaging, processing, and the wholesale and retail
marketing of crops, plants, animals, and other related commodities
and the use and application of techniques and methods of soil preparation
and management, fertilization, weed, disease, and pest control, disposal
of farm waste, irrigation, drainage and water management, and grazing.
The use of land for common farmsite activities, including
but not limited to the production, harvesting, storage, grading, packaging,
processing, and the wholesale and retail marketing of crops, plants,
animals, and other related commodities and the use and application
of techniques and methods of soil preparation and management, fertilization,
weed, disease, and pest control, disposal of farm waste, irrigation,
drainage and water management, and grazing.
A developer submitting an application for development.
The application form and all accompanying documents required
by ordinance for approval of a subdivision plat, site plan, planned
development, conditional use, zoning variance, or direction of the
issuance of a permit pursuant to § 25 or 27 of P.L. 1975,
c. 291 (N.J.S.A. 40:55D-34 or 40:55D-36).
The placement of impervious surface, the exposure or movement
of soil or bedrock, or the clearing, cutting, or removing of vegetation.
The total existing or proposed area of disturbance of a lot,
parcel, or other legally designated (or otherwise legally recognized)
tract or subdivision of land, for the purpose of, and in connection
with, any human activity, property improvement, or development, including
the surface area of all buildings and structures, all impervious surfaces,
and all associated land disturbances such as excavated, filled, and
graded areas, and all lawn and landscape areas. Ultimate disturbance
shall not include areas of prior land disturbance which at the time
of evaluation: a) contain no known man-made structures (whether above
or below the surface of the ground) other than such features as old
stone rows or farm field fencing; and b) consist of exposed rock outcroppings,
or areas which, through exposure to natural processes (such as weathering,
erosion, siltation, deposition, fire, flood, growth of trees or other
vegetation) are no longer impervious or visually obvious, or ecologically
restored areas which will henceforth be preserved as natural areas
under conservation restrictions.
A parcel or parcels of land, whether contiguous or noncontiguous,
together with agricultural or horticultural buildings, structures
and facilities, producing agricultural or horticultural products,
and operated as a single enterprise.
The Highlands Water Protection and Planning Act, P.L. 2004,
c. 120, as amended, codified in part at N.J.S.A. 13:20-1 et seq.
The determination made by the NJDEP of whether a project
proposed for the Preservation Area is a major Highlands development,
whether any such major Highlands development is exempt from the Highlands
Act, and whether the project is consistent with the applicable areawide
water quality management plan.
That portion of the municipality for which the land use planning
and regulation are in conformance with, or are intended or proposed
to be in conformance with, the Highlands Regional Master Plan, specifically
in the context of this article, the Township of Franklin Highlands
Preservation Area.
The New Jersey Highlands Water Protection and Planning Council.
All that area within the boundaries of the municipalities
listed in Subsection a of § 7 of the Highlands Act.
Any structure, surface, or improvement that reduces or prevents
absorption of stormwater into land, including, but not limited to,
porous paving, paver blocks, gravel, crushed stone, decks, patios,
elevated structures, and other similar structures, surfaces, or improvements.
The total area of all existing or proposed impervious surfaces
situated or proposed to be situated within the boundary lines of a
lot, parcel, or other legally recognized subdivision of land, expressed
either as a measure of land area such as acreage, or square feet,
or as a percentage of the total lot or parcel area.
Land uses and activities determined by the Highlands Council
to pose a major risk of groundwater contamination (see Appendix A[1]).
Land uses and activities determined by the Highlands Council
to pose a minor risk of groundwater contamination (see Appendix B[2]).
The New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1
et seq.
New Jersey Department of Environmental Protection.
The regulations established by the NJDEP to implement requirements
of the Highlands Act, titled "Highlands Water Protection and Planning
Act Rules," and codified at N.J.A.C. 7:38-1 et seq.
The process by which a municipality revises the master plan,
development regulations and other regulations related to the development
and use of land to conform them with the goals, requirements, and
provisions of the Regional Master Plan in accordance with the Highlands
Plan Conformance Guidelines.
Lands within the Highlands Region not within the Preservation
Area (N.J.S.A. 13:20-7).
That portion of the Highlands Region so designated by Subsection
b of § 7 of the Highlands Act.
A well that provides water to a public water system serving
at least 15 service connections used by year-round residents or regularly
serving at least twenty-five-year-round residents.
A well that is not a public community well and that provides
water to a public water system regularly serving at least 25 individuals
for at least 60 days in any given calendar year.
The Highlands Regional Master Plan or any revision thereof
adopted by the Highlands Council pursuant to N.J.S.A. 13:20-8.
An elevated panel or plate, or a canopy or array thereof,
that captures and converts solar radiation to produce power, and includes
flat plate, focusing solar collectors, or photovoltaic solar cells
and excludes the base or foundation of the panel, plate, canopy, or
array (as defined by the Highlands Act, N.J.S.A. 13:20-1 et seq, as
amended).
A combination of materials to form a construction for occupancy,
use or ornamentation whether installed on, above, or below the surface
of a parcel of land.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
[2]
Editor's Note: Appendix B is included as an attachment to this chapter.
If any portion, paragraph, clause, sentence or phrase of this
article is determined to be invalid by any court of competent jurisdiction,
such invalidity shall not affect the remaining portions of this article.
All ordinances or parts thereof inconsistent herewith are hereby
repealed to the extent of such inconsistency only.
This article shall take effect after the second reading, public
hearing, adoption and publication, in accordance with the law.
