Editor's Note: Prior source history includes the
2000 Code § 9:10-1 et seq.
a.
The Borough of Avalon is situated on a barrier island known as Seven
Mile Beach, one (1) of eight (8) barrier islands along the coast of
New Jersey. Certain portions of the beach and dunes bordering on the
Atlantic Ocean consisting of the entire length of the inlet and oceanfront
shorelines from the Townsends Inlet Bridge to 80th Street, inclusive, and the same being the boundary lines of the
Borough of Avalon, New Jersey, have in the past suffered, and will
continue to suffer, severely from damage caused by storms and wind-driven
storm tides, at which times the ocean encroaches upon the land and
causes serious damage to public and private property and endangers
the safety and welfare of the public. The Borough Council acknowledges
that this encroachment of the ocean and the causing of overwash areas
on the island is a normal and natural occurrence on a barrier island
and, in fact, is the very mechanism by which a barrier island withstands
the impact of a major coastal storm.
b.
The situation created along the beach and dunes by reason of such
storm tides and resulting damage has been so serious that many millions
of dollars of both public and private funds have been expended for
the replenishment of sand and vegetation, and erection of bulkheads,
sand fences and other supportive structures intended to prevent encroachment
by the ocean and beach and dune erosion.
c.
Continuing beach erosion along the Atlantic seaboard, along with
the gradual rise of the ocean level, has created an immediate and
imminent danger to persons and property in the Borough of Avalon by
reason of the destruction of the sand barriers which protect the Borough's
oceanfront. Consequently, it has become necessary to the health and
welfare of the public to maintain the integrity of the system of dune
and supportive structures on both public and private property within
the Borough of Avalon.
d.
The interference with or the depletion of the beach and dunes tends
to more easily permit encroachment by the ocean and, in the opinion
of the Council of the Borough of Avalon, the conditions recited above
make it imperative that it regulate and control the disturbance, removal
or redistribution of sand and/or vegetation on or from the beach and
dunes.
e.
On July 13, 1994, the Borough of Avalon entered into a State Aid
Agreement (the "State Aid Agreement") with the New Jersey Department
of Environmental Protection (the "NJDEP") as a condition to the receipt
by the Borough of Avalon of funds from the State of New Jersey for
the purpose of beach and dunes restoration. The Borough of Avalon
agreed therein, inter alia, to maintain in effect this Beach Protection
Ordinance (the "Ordinance"), subject to prior approval of any amendment
thereto by NJDEP, and to comply with certain procedural and substantive
requirements set forth within the State Aid Agreement in the review
of applications for development within the Beach Dune Area under the
Ordinance. Those procedural and substantive requirements for the review
and approval of such applications for development contained within
the State Aid Agreement are incorporated herein. (The State Aid Agreement
may be found in the Borough offices.)
[Ord. No. 577-2006 § 9:10-1]
[Ord. No. 577-2006 § 9:10-2]
As used in this chapter:
shall mean as defined within N.J.A.C. 7:7E-3.22(a), as may
be amended from time to time.
shall mean those areas of the Borough of Avalon consisting
of beaches and/or dunes, as defined herein.
shall mean as defined in N.J.A.C. 7:7E-3.16(a), as may be
amended from time to time.
shall mean that area located oceanward of a line established
by the Borough of Avalon in accordance with paragraph (2) of the State
Aid Agreement.
shall mean a line to be established by any person proposing to disturb, remove or redistribute any sand and/or vegetation within the Beach Dune Area in connection with any proposed improvement as described in subsection 23-3.2 hereof which shall demarcate both the area of the proposed improvement and the greater area of construction activity related to such proposed improvement and which shall be staked in the field, shown on a plan to be submitted pursuant to Section 23-4, paragraph e. hereof and the area of which shall be limited to a maximum distance of six (6) feet beyond the outward face of each horizontal dimension of the proposed improvement.
shall mean as defined in N.J.A.C. 7:7E-3.17(a), as may be
amended from time to time.
[Ord. No. 577-2006 § 9:10-3.1]
Except as provided herein, it shall be unlawful for any person
or persons, including any natural person, corporation, partnership,
association or any of their agents or employees to disturb, remove,
or redistribute any sand and/or vegetation on or from privately owned
property located within the Beach Dune Area.
[Ord. No. 577-2006 § 9.10-3.2]
Notwithstanding the provisions of subsection 23-3.1 above, sand and/or vegetation may be disturbed, removed or relocated on or from privately owned property located within the Beach Dune Area under the following circumstances:
a.
If, within the judgment of the Zoning Official, after consulting
with the Code Enforcement Official, such disturbance, removal or redistribution
is necessary in order to repair or to renovate an existing improvement,
such repair or renovation shall not result in any horizontal or vertical
expansion of such improvement, and any sand and/or vegetation disturbed,
removed, replaced or redistributed as a result of such activity shall
be within the Line of Disturbance and shall be restored when such
repair or renovation is completed.
b.
If, within the judgment of the Zoning Official, after consulting with the Code Enforcement Official, such disturbance, removal or redistribution is necessary in order to replace any improvement, or portion thereof, for any reason whatsoever, as long as the replacement does not represent a horizontal or vertical expansion of the area of the improvement to be replaced. In such event, the person seeking to make such improvement shall file an application pursuant to Section 23-4 below within one (1) year of the date of destruction or demolition of the improvement or portion thereof to be replaced, and the person seeking approval for such replacement improvement shall be required to demonstrate (i) that such replacement improvement will not result in a horizontal or vertical expansion of the area previously occupied by the replaced improvement, and (ii) any sand and/or vegetation disturbed, removed, replaced or redistributed as a result of such activity shall be within the Line of Disturbance, shall be the minimal amount necessary for the improvement, and shall be restored or replaced when such replacement is completed.
c.
If, within the judgment of the Zoning Official, after consulting with the Code Enforcement Official, such disturbance, removal or redistribution will result from any construction or reconstruction which is not governed by paragraph a. or b. above, the person seeking to make such improvement shall file an application pursuant to Section 23-4 below, and shall be required to demonstrate (i) that there is no practicable or feasible alternative to construction or reconstruction in any area other than the Beach Dune Area; (ii) that such construction or reconstruction will not cause significant, adverse, long-term impacts on the natural functioning of the Beach and Dunes system, either individually or in combination with other existing or proposed structures, land disturbances or activities; and (iii) any sand and/or vegetation disturbed, removed, replaced or redistributed as a result of such activity shall be within the Line of Disturbance, shall be the minimal amount necessary for the improvement, and shall be restored or replaced to the greatest extent possible when such construction or reconstruction is completed.
[Ord. No. 577-2006 § 9:10-3.3; Ord. No. 620-2009 § 1]
In accordance with the State Aid Agreement, no approval shall be granted pursuant to subsection 23-3.2 to permit construction of swimming pools, tennis courts or similar structures as referenced in paragraph 1(b) of the State Aid Agreement unless the following conditions are satisfied:
a.
The property owner has obtained a CAFRA permit or equivalent from
the New Jersey Department of Environmental Protection approving construction
of swimming pools, tennis courts or similar structures as proposed
to the Borough; and
b.
The New Jersey Department of Environmental Protection has either
amended the State Aid Agreement to eliminate the prohibition against
swimming pools, tennis courts or similar structures as referenced
in paragraph (b) of the State Aid Agreement or the New Jersey Department
of Environmental Protection has issued a letter to the Borough of
Avalon waiving its right to enforce the default provisions of the
State Aid Agreement if the Borough approves the construction of a
swimming pool, tennis court or similar structure, as applicable to
the particular application or the New Jersey Department of Environmental
Protection otherwise authorizes the Borough to approve a swimming
pool, tennis court or similar structure without penalty against the
Borough; and
[Ord. No. 577-2006 § 9:10-4; Ord. No. 620-2009 § 2]
Any person who requires approval for any of those activities described in subsection 23-3.2, paragraphs b. or c., or subsection 23-3.3, shall file with the Secretary of the Planning/Zoning Board an original and sixteen (16) typewritten copies of an application on forms supplied by the Secretary of the Planning/Zoning Board along with seventeen (17) copies of all plans and other documents. The application shall contain the following information:
a.
Applicant's name and address.
b.
Lot and block number of the property on which the improvement is
proposed.
c.
A concise statement of the construction activity for which approval
is sought.
d.
The reasons for such construction.
e.
A plan containing all of the design elements which would be required for site plan review if such construction activity were subject to site plan approval pursuant to Chapter 26, Subdivision and Site Plan Review.
f.
A plan showing the location, description and amount of sand and/or
vegetation to be disturbed, removed or redistributed.
g.
A plan showing the location, description and amount of sand and/or
vegetation to be replaced and the type and location of any temporary
or permanent fencing to be provided.
h.
A plan demonstrating compliance with the Borough Stormwater Management
Ordinance, the Borough's Beach Management Plan for the protection
of Federal and State listed species, April 2009, as amended, and which
identifies any path or other means of access to the beach in conformance
with State and Federal laws.
i.
A plan showing the existing topographical cross-section of the property and the beach and dunes both on the property and oceanward extended from the northward and southward boundaries of the property to the mean low water line and a topographical cross-section of such areas after construction of the proposed improvement. Such plan shall be evaluated for compliance with the requirements of Section 23-3 with reference to the U.S. Army Corps of Engineers-Beach Program, or other acceptable methodologies to determine Beach Dune Area stability both before and after completion of the improvements.
[Ord. No. 577-2006 § 9:10-5]
Upon receipt of an application deemed complete by the Secretary of the Planning/Zoning Board in accordance with Section 23-4 above, the Planning/Zoning Board shall forward a copy of the application to the Environmental Commission of the Borough of Avalon. The Environmental Commission shall have forty-five (45) days within which to consider the application and make any recommendations concerning same to the Planning/Zoning Board. Any such recommendations by the Environmental Commission shall be in writing. If the Environmental Commission should fail to act within forty-five (45) days of the date of such referral by the Planning/Zoning Board, the Planning/Zoning Board shall proceed to act on the application as herein specified. The Planning/Zoning Board shall give due regard to, but shall not be required to accept, any recommendation of the Environmental Commission.
[Ord. No. 577-2006 § 9:10-6]
In accordance with paragraph 1(a) of the State Aid Agreement, upon receipt of an application deemed complete by the Secretary of the Planning/Zoning Board in accordance with Section 23-4 above, the Planning/Zoning Board shall forward a copy of the application to the NJDEP, Bureau of Coastal Regulation, which will have forty-five (45) days within which to consider the application and provide its written comments to the Planning/Zoning Board with regard to the application's compliance with the Rules on Coastal Zoning Management (N.J.A.C. 7:7E-1 et seq.). The Planning/Zoning Board shall give due regard to, but shall not be required to accept, any recommendation of NJDEP.
[Ord. No. 577-2006 § 9:10-7; Ord. No. 606-2009; Ord.
No. 620-2009 § 3]
The Planning/Zoning Board shall commence a hearing on an application for approval pursuant to subsection 23-3.2, paragraph b. or c., or subsection 23-3.3, within forty-five (45) days after the earlier to occur of the expiration of the time within which the Environmental Commission shall act with reference to the application pursuant to Section 23-5 or the issuance of a report or recommendation by the Environmental Commission. The applicant shall provide proof of notice of such hearing to the Planning/Zoning Board Secretary at least three (3) days before the scheduled date of such hearing. Such notice shall be in the same manner as provided for land use applications under Chapters 26 and 27 and shall conform to the requirements of N.J.S.A. 40:55D-12.
At that time, the Planning/Zoning Board shall hear and consider testimony from the applicant's representatives and from any interested party. The applicant shall have the burden of producing competent evidence to demonstrate its right to relief pursuant to subsection 23-3.2, paragraphs b. or c., or subsection 23-3.3, with or without reasonable conditions which may be imposed by the Avalon Borough Council in order to accomplish the purposes of this chapter. In reviewing the application, the Planning/Zoning Board shall consider, at a minimum, the following factors:
a.
The size of the property.
b.
The size and type of the improvement sought.
c.
The location of the proposed improvement on the property.
d.
The elevation of the lot and the improvement.
e.
The size, elevation, and configuration of the sand and/or vegetation
located on the property.
f.
The shore protection afforded by the dunes in the unaltered state
compared to the shore protection afforded by the proposed improvement.
g.
The location, amount and type of sand and/or vegetation to be altered.
h.
The location, amount and type of any new sand and/or vegetation resulting
from the proposed improvement.
i.
The danger to life and property from flooding or erosion damage likely
to occur as a result of the proposed improvement.
j.
The susceptibility of the property and proposed improvement to flood
damage.
k.
The relationship of the proposed improvement to the comprehensive
plan and flood plain management program for that area.
l.
The expected height, velocity, duration and rate of rise and sediment
transport of the flood waters and the effect of wave action expected
at the property.
After reviewing the application and considering the evidence presented at the hearing as well as the factors identified above, the Planning/Zoning Board shall make findings of fact and submit those findings, together with all materials received during the application process and its recommendation concerning the merits of the application, to the Avalon Borough Council for a final determination. The Borough Council shall, within forty-five (45) days after receipt of the findings of fact and recommendations of the Planning/Zoning Board, make a final decision on the application at a public hearing scheduled by the Borough Council on twenty (20) days notice to the applicant. The applicant shall provide notice of the hearing as would be required under N.J.S.A. 40:55D-12 for land use applications. The applicant shall provide proof of notice of such hearing to the Borough Clerk at least three (3) days before the scheduled date of such hearing. Such notice shall be in the same manner as provided for land use applications under Chapters 26 and 27 and shall conform to the requirements of N.J.S.A. 40:55D-12. At such hearing, the applicant shall not be permitted to present additional information, materials, or evidence, but shall be permitted to comment on the findings and recommendations of the Planning/Zoning Board and to argue the merits of its application to the Borough Council. At the conclusion of the hearing, or within thirty (30) days thereafter if the Borough Council requires additional time to consider the application, the Borough Council shall issue its decision by a vote of a majority of members in attendance at the meeting.
[Ord. No. 577-2006 § 9:10-8; Ord. No. 606-2009]
The applicant shall have the right to appeal any decision of
the Avalon Borough Council to the Superior Court of New Jersey.
[Ord. No. 577-2006 § 9:10-9]
All proposed development as provided under subsection 23-3.2 shall be further subject to the applicant's compliance with all other applicable ordinances of the Borough of Avalon.
[Ord. No. 577-2006 § 9:10-10; Ord. No. 620-2009 § 4]
Each applicant for approval pursuant to subsection 23-3.2, paragraph b. or c., or subsection 23-3.3 shall submit with its application an application fee in the amount of one thousand dollars ($1,000.00). In addition, each applicant seeking approval pursuant to subsection 23-3.2, paragraph b. or c., or subsection 23-3.3 shall also place in escrow with the Secretary of the Planning/Zoning Board a payment in the amount of two thousand five hundred ($2,500.00) dollars to be applied toward payment of the professional fees of the Planning/Zoning Board in the review and consideration of that application. The same conditions as applicable to the disposition of escrow payment for professional fees for applications for land use approval under Chapters 26 and 27 of the Avalon Borough Code shall apply to the escrow payment required herein. Such application fees and professional fees shall be applicable to consideration of the application by both the Planning/Zoning Board and Environmental Commission. In the event the applicant is seeking approval pursuant to subsection 23-3.2, paragraph b. or c. and subsection 23-3.3 in the same application the applicant shall only pay one application fee and one escrow payment.
[Ord. No. 577-2006 § 9:10-11]
Vegetation and sand fences may be utilized to supplement dunes in connection with any application. Any such vegetation shall be compatible with surrounding, existing vegetation and take into account the location, height and gradient of dunes supported by such vegetation and conform to the requirements for landscape improvements under subsection 27-7.3t in Chapter 27, Zoning, as well as the Standards for Beach and Dune Activity set forth at N.J.A.C. 7:7E-3A.1 et seq., each as may be amended from time to time.
[Ord. No. 577-2006 § 9:10-12]
If sand and/or vegetation shall be disturbed, removed or redistributed
on or from any property within the Beach Dune Area at any time and
due to any cause, including, but not limited to, as a result of storm
activity, upon direction of the Construction Official, the owner of
that property shall restore and/or replace such sand and/or vegetation
except that there shall be no such obligation to restore or replace
a small amount of loose, windblown sand relocated on or from a property
as a result of storm activity.
[Ord. No. 577-2006 § 9:10-13]
a.
It shall be unlawful for any person or persons, including any natural
person, corporation, partnership, association or anyone acting in
their behalf or at their instance to remove any snow fence or vegetation
which exists in the Beach Dune Area.
b.
It shall be unlawful to trespass upon any dunes, except as paths
are designated and marked for public use.
[Ord. No. 577-2006 § 9:10-14]
Maintenance of the Beach Dune Area and any other natural protective
barriers now existing or heretofore created are necessary and proper
for the good government, order and protection of persons and property
and for the preservation of the public health, safety and welfare
of this Borough and its inhabitants; and it is an appropriate and
necessary exercise of the Borough's police powers that the Beach
Dune Area and other protective barriers be maintained in accordance
with this chapter in order to provide protection deemed essential
in the public interest.
[Ord. No. 577-2006 § 9:10-15]
Bulkheads will not be allowed to supplement dunes, with those
exceptions to this use restriction approved by NJDEP, Land Use Regulation
Program, Coastal Area Review Section.
[Ord. No. 577-2006 § 9:10-16;
New]
Upon violation of the provisions of this chapter, the Borough
may, in addition to any other legal remedies available to it:
a.
Commence an action before a court of law or administrative agency
having jurisdiction to prevent such unlawful erection, construction,
reconstruction, alteration, repair, conversion, maintenance or use;
to restrain, correct or abate such violation; to prevent the occupancy
of the structure, improvement or property; or to prevent any illegal
act, conduct, use or activity on or about the property.
b.
Revoke any permit or approval issued or granted pursuant to this
chapter without regard to whether work has begun or a use has commenced
pursuant to such permit or approval.
[Ord. No. 577-2006 § 9:10-17]
The Environmental Commission is hereby directed to participate
to the fullest extent possible in review by the NJDEP of applications
for development within the Beach Dune Area in accordance with N.J.A.C.
7:7-4.1 et seq., as may be amended from time to time. To that end,
the Borough Clerk shall promptly forward to the Environmental Commission
copies of all such applications received by the Borough in accordance
with applicable law. Thereafter, within fifteen (15) days of receipt
of such application, the Environmental Commission shall provide NJDEP
with any comments it deems appropriate with regard to such application
and shall also notify NJDEP of its intent to participate as an interested
party with regard to such application, requesting specifically that
it be notified of any public hearing, modification of an application
notice of decision, or notice of appeal with reference to such application.
The Environmental Commission shall participate in any public hearing
conducted by NJDEP in connection with such applications and shall
provide testimony and/or written comment as it deems appropriate.
Such written comment shall be provided to NJDEP within fifteen (15)
days after completion of any public hearing. Within thirty (30) days
of the grant of each permit application, the Environmental Commission
may determine to appeal the grant of such permit to the Commission
of NJDEP. If the Environmental Commission shall receive notice that
any such permit application has been denied and a request has been
made to NJDEP for an adjudicatory hearing to contest such denial within
ten (10) days of its receipt of such notice, the Environmental Commission
may file with NJDEP its written response to such a request and its
intent to participate in the appeal process.
The provisions of this section are intended to authorize the
Environmental Commission to undertake all those measures available
to it under the law to assure that those regulations of NJDEP governing
development within the Beach Dune Area are strictly enforced by NJDEP
and in a manner consistent with the provisions of this chapter.
