[Added 4-6-2015 by Ord.
No. 2015-4]
This article shall be known and cited as the "Township of Franklin
Highlands Act Exemption Determinations Ordinance."
The purpose of this article is to set forth the procedural and
substantive requirements by which the municipality will issue Highlands
Act Exemption Determinations. Such determinations pertain only to
Highlands Act exemptions 1, 2, 4, 5, 6, 7 and 8. Highlands Act Exemption
Determinations indicate whether proposed activities, improvements
or development projects affecting lands located within the Township
of Franklin Highlands Area are exempt from the Highlands Water Protection
and Planning Act ("Highlands Act," N.J.S.A. 13:20-1 et seq.), and
are therefore exempt from the Highlands Water Protection and Planning
Council's ("Highlands Council") Regional Master Plan, the New Jersey
Department of Environmental Protection's (NJDEP) Highlands Water Protection
and Planning Act Rules ("Preservation Area Rules," N.J.A.C. 7:38-1
et seq.), and from any amendments to the Township's master plan, development
regulations, or other regulations adopted pursuant to the approval
of the Township's Petition for Plan Conformance by the Highlands Council.
The provisions of this article pertain only to activities, improvements
and development projects involving lands located within the Township
Highlands Preservation Area. The provisions of this article shall
not be construed to alleviate any person or entity from the provisions
and requirements of any other applicable ordinances, rules, or regulations
of the municipality, or from any other applicable law, regulation,
or requirement of any county, state, or federal authority having jurisdiction.
Nor shall the provisions of this article deprive any person or entity
from seeking a Highlands exemption determination from the NJDEP.
Terms used in the body of this article which are defined by
the Highlands Act (N.J.S.A. 13:20-3) are intended to have the same
definitions as provided in the Highlands Act. Unless expressly stated
to the contrary or alternately defined herein, terms which are defined
by the MLUL[1] are intended to have the same meaning as set forth in
the MLUL. For purposes of this article, the terms "shall" and "must"
are indicative of a mandatory action or requirement while the word
"may" is permissive.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
For purposes of this article the following definitions shall
apply:
Agricultural or horticultural buildings, structures or facilities
with or without flooring, residential buildings and paved areas, but
not meaning temporary coverings. (N.J.S.A. 13:20-3).
Construction for the purposes of supporting common farmsite
activities, including but not limited to the production, harvesting,
storage, grading, packaging, processing, and the wholesale and retail
marketing of crops, plants, animals, and other related commodities
and the use and application of techniques and methods of soil preparation
and management, fertilization, weed, disease, and pest control, disposal
of farm waste, irrigation, drainage and water management, and grazing.
(N.J.S.A. 13:20-3).
The use of land for common farmsite activities, including
but not limited to the production, harvesting, storage, grading, packaging,
processing, and the wholesale and retail marketing of crops, plants,
animals, and other related commodities and the use and application
of techniques and methods of soil preparation and management, fertilization,
weed, disease, and pest control, disposal of farm waste, irrigation,
drainage and water management, and grazing. (N.J.S.A. 13:20-3).
Any entity applying to the Board of Health, Planning Board,
Zoning Board of Adjustment, Zoning Officer, Construction Official
or other applicable authority of the municipality for permission or
approval to engage in an activity that is regulated by the provisions
of this article.
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).
Used interchangeably with the term "construction permit";
see definition below.
A permit issued pursuant to the New Jersey Uniform Construction
Code, Chapter 23 of Title 5 of the New Jersey Administrative Code
(N.J.A.C. 5:23-1 et seq.), providing authorization to begin work subject
to the conditions and requirements established under the provisions
therein.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any building or other structure, or
of any mining excavation or landfill, and any use or change in the
use of any building or other structure, or land or extension of use
of land, for which permission may be required pursuant to the MLUL[1] (N.J.S.A. 13:20-3; 40:55D-4).
The placement of impervious surface, the exposure or movement
of soil or bedrock, or the clearing, cutting, or removing of vegetation.
(N.J.S.A. 13:20-3).
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 permit, approval, or other authorization issued by the
Department of Environmental Protection pursuant to the Freshwater
Wetlands Protection Act, P.L. 1987, c. 156 (N.J.S.A. 13:9B-1 et seq.),
the Water Supply Management Act, P.L. 1981, c. 262 (N.J.S.A. 58:1A-1
et seq.), the Water Pollution Control Act, P.L. 1977, c. 74 (N.J.S.A.
58:10A-1 et seq.), the Realty Improvement Sewerage and Facilities
Act (1954), P.L. 1954, c. 199 (N.J.S.A. 58:11-23 et seq.), the Water
Quality Planning Act, P.L. 1977, c. 75 (N.J.S.A. c. 58:11A-1 et seq.),
the Safe Drinking Water Act, P.L. 1977, c. 224 (N.J.S.A. 58:12A-1
et seq.), or the Flood Hazard Area Control Act, P.L. 1962, c. 19 (N.J.S.A.
58:16A-50 et seq.). (N.J.S.A. 13:20-3).
A parcel or parcels of land, whether contiguous or noncontiguous,
together with agricultural or horticultural buildings, structures
and facilities, producing agricultural or horticultural products,
and operated as a single enterprise. (N.J.S.A. 13:20-3).
A farm management unit as defined above.
A written guidance document describing the forest resources
present on a property, the landowner's management goals and objectives,
and the recommended practices or activities to be carried out over
time on the land. This tool is used to evaluate a forestland's current
state and provide a management process which, over time, meets the
landowner's objectives, while maintaining health and vigor of the
resource. Forest management plans are typically written for a ten-year
period. (RMP, Glossary.)
A determination made by the NJDEP (pursuant to N.J.A.C. 7:38-2.4)
indicating whether a project proposed for the Preservation Area is
a major Highlands development, whether any such major Highlands development
is exempt from the Highlands Act, and whether the project is consistent
with the applicable areawide water quality management plan.
That portion of the municipality for which the land use planning
and regulation are in conformance with, or are intended or proposed
to be in conformance with, the Highlands RMP.
An approval issued by the NJDEP pursuant to N.J.A.C. 7:38-6
pertinent to a regulated activity in the Highlands Preservation Area,
and including an HPAA that contains a waiver pursuant to N.J.S.A.
13:20-33b.
A spouse, child, parent, sibling, aunt, uncle, niece, nephew,
first cousin, grandparent, grandchild, father-in-law, mother-in-law,
son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister,
half brother, or half sister, whether the individual is related by
blood, marriage, or adoption. (N.J.S.A. 13:20-3).
Any structure, surface, or improvement that reduces or prevents
absorption of stormwater into land, including, but not limited to,
porous paving, paver blocks, gravel, crushed stone, decks, patios,
elevated structures, and other similar structures, surfaces, or improvements.
(N.J.S.A. 13:20-3).
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.
Except as otherwise provided pursuant to Subsection a of
§ 30 of the Highlands Act ("Exemptions"): 1) any nonresidential
development in the Preservation Area; 2) any residential development
in the Preservation Area that requires an environmental land use or
water permit (from the NJDEP, see definition above), or that results
in the ultimate disturbance of one acre or more of land or a cumulative
increase in impervious surface by one-quarter acre or more; 3) any
activity undertaken or engaged in the Preservation Area that is not
a development but results in the ultimate disturbance of one-quarter
acre or more of forested area or that results in a cumulative increase
in impervious surface by one-quarter acre or more on a lot; or 4)
any capital or other project of a state entity or local government
unit in the Preservation Area that requires an environmental land
use or water permit (from the NJDEP, see definition above), or that
results in the ultimate disturbance of one acre or more of land or
a cumulative increase in impervious surface by one-quarter acre or
more. Major Highlands development shall not include any agricultural
or horticultural development or agricultural or horticultural use.
Solar panels shall not be included in any calculation of impervious
surface. (As defined by the Highlands Act, N.J.S.A. 13:20-1 et seq.,
as amended.)
For purposes of this article, all references to the "Township
Master Plan," "master plan," or "Master Plan," refer to the municipal
master plan, as defined in the MLUL (N.J.S.A. 40:55D-5), as adopted
by the Township Planning Board.
For purposes of this article, all references to the Highlands
Regional Master Plan (RMP) shall be by use of the words "Highlands
Regional Master Plan," "Highlands RMP," "Regional Master Plan" or
"RMP."
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.
Lands within the Highlands Region that are not located in
that portion designated by the Highlands Act as the "Preservation
Area" (see metes and bounds description at N.J.S.A. 13:20-7b).
Lands within the Highlands Region that are located in that
portion designated by the Highlands Act as the "Preservation Area"
(see metes and bounds description at N.J.S.A. 13:20-7b).
An elevated panel or plate, or a canopy or array thereof,
that captures and converts solar radiation to produce power, and includes
flat plate, focusing solar collectors, or photovoltaic solar cells
and excludes the base or foundation of the panel, plate, canopy, or
array. (N.J.S.A. 13:20-3).
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: See N.J.S.A. 40:55D-1 et seq.
An applicant may request a municipal exemption determination
for any of the following:
A.
Exemption 1: the construction of a single-family dwelling, for an
individual's own use or the use of an immediate family member, on
a lot owned by the individual on the date of enactment of the Highlands
Act (August 10, 2004) or on a lot for which the individual entered
into a binding contract of sale to purchase on or before May 17, 2004.
B.
Exemption 2: the construction of a single-family dwelling on a lot
in existence on the date of enactment of the Highlands Act (August
10, 2004), provided that the construction does not result in the ultimate
disturbance of one acre or more of land or a cumulative increase in
impervious surface by one-quarter acre or more. A municipal exemption
determination indicating that an applicant qualifies under Highlands
Act Exemption 2 shall require approval and filing of a deed notice
along with a site plan delineating the total exempt area and the extent
of the disturbance recognized in the municipal exemption determination.
Municipal exemption determinations in such instances shall not take
effect until the applicant has provided proof of filing of the approved
deed notice.
C.
Exemption 4: the reconstruction of any building or structure for
any reason within 125% of the footprint of the lawfully existing impervious
surfaces on the site, provided that the reconstruction does not increase
the lawfully existing impervious surface by one-quarter acre or more.
This exemption shall not apply to the reconstruction of any agricultural
or horticultural building or structure for a nonagricultural or nonhorticultural
use. For purposes of this article, this exemption shall not be construed
to permit multiple 125% footprint expansions, but rather to permit
one or more reconstruction activities cumulatively resulting in a
maximum 125% increase in the footprint of the impervious surfaces
lawfully existing on the site, provided they do not cumulatively exceed
the one-quarter-acre limitation. Any determination of whether the
expansion of impervious cover meets the statutory criteria for the
exemption must account for the preexisting impervious cover, and such
expansion must be contiguous to the location of the existing impervious
cover. The applicable date of lawful existence shall be August 10,
2004, the date of enactment of the Highlands Act.
D.
Exemption 5: any improvement to a single-family dwelling in existence
on the date of enactment of the Highlands Act (August 10, 2004), including
but not limited to an addition, garage, shed, driveway, porch, deck,
patio, swimming pool or septic system.
E.
Exemption 6: any improvement, for nonresidential purposes, to a place
of worship owned by a nonprofit entity, society or association, or
association organized primarily for religious purposes, or a public
or private school, or a hospital, in existence on the date of enactment
of the Highlands Act (August 10, 2004), including but not limited
to new structures, an addition to an existing building or structure,
a site improvement, or a sanitary facility.
F.
Exemption 7: an activity conducted in accordance with an approved
woodland management plan pursuant to § 3 of the Farmland
Assessment Act, P.L. 1964, c. 48 (N.J.S.A. 54:4-23.3) or a forest
stewardship plan approved pursuant to § 3 of P.L. 2009,
c. 256 (the State Park and Forestry Resources Act, N.J.S.A. 13:1L-31),
or the normal harvesting of forest products in accordance with a forest
management plan or forest stewardship plan approved by the State Forester.
G.
Exemption 8: the construction or extension of trails with nonimpervious
surfaces on publicly owned lands or on privately owned lands where
a conservation or recreational use easement has been established.
Municipal exemption determinations regarding Highlands Act exemptions
shall be issued by the Township's Zoning Officer, Township Engineer
or other individual so designated. The exemption designee(s) shall
be authorized to issue municipal exemption determinations on behalf
of the municipality, after satisfactory completion of a Highlands
Council training class for which the individual(s) has/have received
formal certification from the Highlands Council. Exemption designees
shall receive updated training as recommended and advised by the Highlands
Council.
Requests for municipal exemption determination shall be submitted
in writing to the Township Zoning Officer or, if directed, the Township
Engineer, and shall be accompanied by sufficient information and documentary
evidence to demonstrate whether the proposed activity, improvement
or development project qualifies for the applicable exemption. The
documentation necessary to satisfy the evidentiary requirements for
an exemption shall be subject to the sound discretion of the Zoning
Officer and/or Township Engineer, but may include as to each eligible
exemption the following:
A.
Exemption 1.
(1)
A copy of a deed, closing or settlement statement, title policy,
tax record, mortgage statement or any other official document showing
that the lot was legally owned by the applicant on or before August
10, 2004, and indicating the lot and block as designated by the municipal
tax mapping, the municipality and county in which the lot is located,
and the street address;
(2)
If the applicant did not own the lot, a copy of the binding contract
of sale executed by the seller and the applicant on or before May
17, 2004, for the lot on which the house is to be constructed; and
(3)
A certification by the applicant stating that the single-family dwelling
proposed for construction on the lot specified and described therein
by tax lot and block, municipality and county of location, and street
address, is intended for the applicant's own use or the use of an
immediate family member as identified therein by name and relationship
to the applicant.
B.
Exemption 2.
(1)
A copy of the recorded deed or plat showing that the lot was created
on or before August 10, 2004, or proof of subdivision approval on
or before August 10, 2004;
(2)
A property survey certified by a licensed New Jersey professional
land surveyor indicating the property boundary lines and overall lot
size, and showing what structures currently exist on the lot, if any;
(3)
A parcel plan certified by a licensed New Jersey professional engineer
showing all existing and proposed development, including all structures,
grading, clearing, impervious surface and disturbance, and including
the calculations supporting the claim that impervious surfaces and
areas of disturbance are within the limits necessary for Exemption
2; and
C.
Exemption 4.
(1)
A parcel plan certified by a licensed New Jersey professional engineer
depicting:
(a)
All existing property improvements, including all structures,
grading, clearing, impervious surfaces and limits of disturbance,
lawfully existing on the site as of August 10, 2004; and
(b)
All proposed development including all structures, impervious
surfaces, clearing limits, and limits of disturbance, including grading;
and
(2)
A copy of any official documentation of the original date of construction
of the building or otherwise establishing the lawfulness of existing
impervious surfaces.
D.
Exemption 5.
(1)
A copy of any official documentation proving the single-family dwelling
was in existence on August 10, 2004;
(2)
A description of the proposed improvement; and
(3)
A certification from the applicant that the property and all improvements
will continue to be used for single-family dwelling purposes.
E.
Exemption 6.
(1)
A copy of any official documentation indicating that the place of
worship, public or private school or hospital was in existence on
August 10, 2004;
(2)
For improvements to a place of worship, documentation showing that
the entity, society or association, or association organized primarily
for religious purposes has nonprofit status;
(3)
A site plan certified by a licensed New Jersey professional engineer
depicting:
(a)
All existing property improvements including all structures,
grading, clearing, impervious surfaces and limits of disturbance,
existing on the site on August 10, 2004; and
(b)
All proposed development including all structures, impervious
surfaces, clearing limits, and limits of disturbance, including grading.
F.
Exemption 7.
(1)
For a private landowner with an approved woodland management plan
or forest stewardship plan:
(a)
A copy of the applicant's tax bill showing that the site has
farmland assessment tax status under the New Jersey Farmland Assessment
Act, N.J.S.A. 54:4-23.1 et seq., if applicable;
(b)
A brief description of the total area of woodlands that is the
subject of the approved woodland management plan or forest stewardship
plan;
(c)
A brief description of the length of time that the area to be
managed has been in use for woodland management or forest stewardship
plan; and
(d)
A copy of the approved woodland management plan or forest stewardship
plan.
(2)
For the normal harvesting of forest products in accordance with a
forest management plan or forest stewardship plan approved by the
State Forester:
(a)
A brief description of the total area where the normal harvesting
of forest products occurs;
(b)
A brief description of the length of time that the area to be
managed has been in use for normal harvesting of forest products;
and
(c)
A copy of a forest management plan or forest stewardship plan
approved by the State Forester.
G.
Exemption 8.
(1)
A site plan certified by a licensed New Jersey professional engineer
showing the proposed trail construction with details including the
location, and width of existing and proposed trails and those off-site
trails to which they connect, if any;
(2)
A written description of the nonimpervious materials to be used;
and
(3)
For privately owned property, a copy of a deed for the property and
the conservation or recreational use easement on the property.
The exemption designee shall endeavor to issue municipal exemption
determinations within 20 calendar days of receipt of an application.
The exemption designee may consult with the NJDEP or the Executive
Director (or applicable designee) of the Highlands Council as needed
in making any exemption determination. However, in no case shall the
failure to issue a determination within this time frame constitute
approval of the exemption. In the event that the Zoning Officer or
other exemption designee is unable to timely issue the determination,
the applicant's sole remedy shall be to obtain a state agency exemption
determination from the NJDEP.
All municipal exemption determinations shall be provided in
writing, shall certify to the applicability or inapplicability of
the exemption, and shall include a statement of the rationale for
the decision. Any municipal exemption determination certifying to
the applicability of Highlands Act Exemption 2 shall be contingent
upon submission of proof of filing of the required deed notice.
The exemption designee shall provide copies of all municipal
exemption determinations, including a copy of the full application,
to the Highlands Council and to the NJDEP within 10 business days
of issuance.
Any municipal exemption determination that certifies to the
applicability of Highlands Act Exemption 2 shall be issued conditionally,
pending fulfillment of the requirement that a deed notice be recorded
in the office of the County Clerk or Register, as applicable, indicating
the extent of the exemption that has been consumed. The deed notice
shall incorporate each of the components listed below and the applicant
shall provide a copy of the filed deed notice to the Highlands Council
within five business days of filing.
A.
Clear identification of the name(s) and address(es) of the owner(s)
in fee of the property;
B.
Designated tax block and lot number(s), street address(es), municipality
and county of location of the property;
C.
Reference to the municipal exemption determination (by date, numbering
if applicable) issued and under which the deed notice is being filed;
D.
Description of the approved area of ultimate disturbance and the
impervious surface area, with verification that these remain below
the statutory limits;
E.
For properties of one acre or more in area, metes and bounds delineation
indicating the portion of the property for which the ultimate disturbance
has been authorized;
F.
Agreement to abide by the ultimate disturbance and impervious surface
limits imposed, any furtherance thereof rendering the municipal exemption
determination null and void; and
G.
Notice that the owner(s) and subsequent owner(s) and lessees shall
cause all leases, grants, and other written transfers of interest
in the property to contain provisions expressly requiring all holders
thereof to take the property subject to the limitations therein set
forth.
A municipal exemption determination may be appealed by any affected
person/entity by filing a notice of appeal within 20 calendar days
of issuance or receipt of said determination, whichever is later,
specifying the grounds therefor. Appeals must be filed with the NJDEP.
All appeals shall be copied to the exemption designee, who shall immediately
transmit to the NJDEP copies of the notice of appeal, the municipal
exemption determination application, and all supplemental materials
constituting the record that the exemption designee relied upon in
issuing the municipal exemption determination. Where the municipal
exemption determination deems an activity, improvement or development
project exempt, the filing of an appeal to the NJDEP shall stay all
proceedings in furtherance of its approval by the municipality.
Issuance of a municipal exemption determination that certifies
to the applicability of a Highlands Act exemption shall recognize
the applicant's exemption from the provisions of the RMP, NJDEP Preservation
Area Rules, and any municipal ordinances and requirements adopted
under the authority of the Highlands Act to achieve Highlands Plan
conformance. The exemption is restricted solely to the extent of the
specified activity, improvement, or development project as described
in the language of the Highlands Act exemption, or to any lesser activity,
improvement, or development project as proposed and certified through
a municipal exemption determination application. Any activity, improvement,
or development project, or any part thereof, that is not specifically
listed as an exemption or exceeds the limits of an exemption, remains
subject to all of the above regulatory programs to the full extent
of the respective applicability of each. Issuance of a Highlands exemption
determination shall not relieve the applicant from securing all other
required federal, state, or local approvals.
Should any section, paragraph, sentence, clause or phrase of
this article be declared unconstitutional or invalid for any reason
by any court of competent jurisdiction, such provision(s) shall be
deemed severable and the remaining portions of this article shall
remain in full force and effect.
All ordinances or parts of ordinances or resolutions that are
inconsistent with the provisions of this article are repealed to the
extent of such inconsistency.
This article shall take effect after the second reading, public
hearing, adoption and publication, in accordance with the law.
