[Ord. No. 676-2018]
Although there may be no long- term defense for fixed oceanfront
structures against a constantly rising ocean level, effective protection
of the oceanfront and adjacent coastal areas in the intermediate term
against high tides and flooding and against damage by the ocean under
storm conditions requires sufficient elevation and breadth in the
beach and dune areas, hereinafter defined, to dissipate the force
of the waves. The dunes should provide an uninterrupted barrier and
a source of sand to mitigate the effect of storm waves for the benefit
of the entire Borough - interior lands as well as oceanfront premises
- and a beach for the recreational purposes of all. Accordingly, the
Borough has a vital interest in the continued maintenance and protection
of the ocean Beach and Dune Areas and in the right to cause their
restoration in the event of damage or destruction
Maintenance and protection of the ocean beach and dune areas
are also a requirement of the Borough under a State Aid Agreement
(SAA) between the Borough and the New Jersey Department of Environmental
Protection (NJDEP) and consistent with the conditions of the United
States Army Corps of Engineers (USACE) 50-year duration Beach and
Dune System Federal Shore Protection Program initiated in December
2016 and extending to December 2066.
Dune Areas are vulnerable to erosion by wind, water, the absence
of good husbandry by those responsible for their maintenance and preservation,
and by indiscriminate trespass, construction or other acts which might
destroy or damage them. A proven and available means of protecting
Dune Areas against erosion is by preventing indiscriminate trespassing,
construction or other acts which might destroy or damage them, and
through the aggressive use of native plantings supplemented, when
necessary, by sand fencing and other protective devices, or combinations
thereof, designed to prevent the erosion of Dune Areas and to promote
the root accumulations, normal contours and other features found in
natural dune systems and to aid in long term stabilization of engineered
dune systems.
The Beach Area and Dune Area are dynamic and are not capable
of rigid definition or delineation, or of completely firm stabilization.
They can and do migrate, so that particular sites, at one time free
of dunes may, as the result of natural forces, become a part of the
Dune Area declared to be in the interest of the Borough and State
of New Jersey to protect. Persons owning, using or purchasing such
property do so subject to the public interest therein and also bound
by the limitations and conditions of easements exercised by the previous
owners with the Borough and NJDEP or obtained by the NJDEP under eminent
domain.
It is a purpose of this chapter to define the areas so affected
and to continue regulations to assure their effectiveness. This chapter
does not attempt to define and regulate all parameters of dune delineation,
function or management and the Borough Council declares its intent
to review and update this chapter periodically to reflect appropriately
new and beneficial knowledge; and to be consistent with State and
Federal agreements and regulations. This chapter is declared to be
an exercise of the police power in the interest of safety and welfare
for the protection of persons and property. Further, this chapter
is adopted in recognition of the knowledge and benefits realized by
the implementation of prior enactments which have been operative since
1980 and which have been favorably endorsed by scientific and governmental
authorities. By this enactment, it is the intention of the Borough
to reflect and utilize the knowledge and experience gained in the
administration of prior Beach and Dune Ordinances in the Borough of
Mantoloking to ensure a viable beach and dune system exists in the
Borough for coastal protection to the benefit of all Mantoloking residents
and the environment.
In view of the fact that the Bar-Beach-Dune System provides
the primary protection to property, public and private, and persons
within the Borough, from the clearly present hazards of erosion and
flooding caused by the Atlantic Ocean during periods of storm, and
otherwise, all of the provisions of this chapter are deemed necessary,
material, and substantial; therefore, they shall not be subject to
waiver or variance.
[Ord. No. 676-2018]
For the purpose of this chapter, certain words or phrases shall
be interpreted in the following manner:
a. Words used in the present tense include the future tense.
b. Words used in the singular include the plural, and conversely words
in the plural include the singular.
c. Words used in the masculine include the feminine.
d. The word "shall" is mandatory and not discretionary.
[Ord. No. 676-2018]
All terms and language utilized in this chapter shall be accorded
their common and customary meaning, except where specifically defined
herein as follows:
APPENDIX
Shall mean that portion of this chapter entitled "Appendix",
and is incorporated herein.
BACKSLOPE OF THE DUNE
Shall mean the area of the dune between the landward toe
of the dune and the landward dune crest.
BEACH AREA
Shall mean that area between the Mean High-Water Line of
the Atlantic Ocean, and the Seaward Edge of the Dune as hereinafter
defined.
BOROUGH
Shall mean the Borough of Mantoloking, Ocean County, New
Jersey.
BOROUGH CLERK
Shall mean the Municipal Clerk of the Borough of Mantoloking,
Ocean County, New Jersey.
BOROUGH COUNCIL
Shall mean the Municipal Council of the Borough of Mantoloking,
Ocean County, New Jersey.
CAFRA
Shall mean the Coastal Area Facilities Review Act, N.J.S.A.
13:19-1 et seq., and regulations issued thereunder at N.J.A.C. 7:7
et seq., as may be amended from time to time.
CZM REGULATIONS
Shall mean the present NJDEP Coastal Zone Management Rules
adopted by the NJDEP under N.J.A.C. 7:7 or as may be amended.
DEED OF DEDICATION AND PERPETUAL STORM DAMAGE REDUCTION EASEMENT
Shall mean that agreement exercised by the owners of each
oceanfront property (past or present) or obtained for the oceanfront
property by NJDEP eminent domain proceedings which sets forth the
conditions of use and access to implement the USACE Beachfill and
Dune Project.
DUNE AREA
Shall mean that area between the seaward edge of the dune
as exists or as established by the USACE Beachfill and Dune Project
or as may advance easterly through natural accretion from that initial
point and the landward edge of the dune as exists; is constructed
as part of the USACE Beachfill and Dune Project or as may be created
by natural migration of the dune to the west.
DUNE CONSULTANT
Shall mean an expert on dunes and their care retained by
the Borough.
DUNE INSPECTOR(S)
Shall mean that person or those persons appointed by the
Mayor with the consent of the Borough Council to observe and regulate
activities on the dune consistent with the Borough Dune Ordinance.
DUNE PLATFORM (DECK)
Shall mean a wooden construction platform (deck) placed in
the dune area, in accordance with requirements set forth herein and
consistent with NJDEP exemption status under the prevailing NJDEP
Coastal Zone Management Regulations; or as previously approved by
the Borough; or as constructed prior to the Borough's initial
Dune Ordinance adoption.
DUNE PROGRAM DIRECTOR
Shall mean that person appointed by the Mayor with the consent
of the Borough Council designated to advance the Borough's Dune
Ordinance goals and program and maintain consistency of same to meet
NJDEP and USACE requirements; or if not formally appointed, any person
temporarily directed by the Mayor or Borough Council to perform those
duties.
DUNE VEGETATION
Shall include all plant species found on beaches and dunes
of northeastern United States, either native or introduced, which
can build and stabilize sand dunes. Specifically, it shall include,
but not be limited to, such species as American beachgrass (Ammophilia
breviligulata), sea rocket (Cakile edentula), seaside spurge (Euphorbia
polygonifolia), dune cordgrass (Spartina patens), seaside goldenrod
(Solidago semipervirens), dusty miller (Artemisia stelleriana), bayberry
(Mryica Pennsylvaniea), beach pea (Lathyrus japonicus), salt spray
rose (Rosa rugosa), beach plum (Prunus maritima), panicum grass, etc.,
which normally grow or may be planted on the slopes of the dunes or
behind them, with no distinction being made as to how such plants
are introduced into their location.
EARTH ANCHOR
Shall mean an auger type anchor utilized to protect against
wind uplift of dune platforms typically constructed of galvanized
or stainless steel with a minimum penetration below the dune surface
of 30".
ELEVATED WALKWAY
Shall mean an improved walkway connecting to the dune crest
which is supported on timber posts, piles, etc. and which must meet
NJDCA foundation requirements consisting of a NJPE designed foundation
to address wave forces and wave scour. Elevated walkways may only
be installed westerly of the prevailing dune crest or as may have
existed and approved prior to the USACE Beachfill and Dune Project
requirements.
FORESLOPE OF THE DUNE
Shall mean the section of the dune face between the seaward
crest of the dune and the seaward edge of the dune where it intersects
the beach.
GP-2
Shall mean the Borough's NJDEP General Permit 2 for
dune repair and beach maintenance.
LANDWARD DUNE CREST
Shall mean the intersection line of the backslope of the
dune and the top of dune, with a typical elevation 22.00 NAVD88 if
constructed as part of the USACE Beachfill and Dune Project or higher
if naturally developed.
LANDWARD EDGE OF THE DUNE
Shall mean the intersection line of the backslope of the
dune and the natural or site plan approved grade of the land extending
from the east boundary of New Jersey Route 35 or East Avenue, eastwardly,
or the line joining the average landward edge of the dune of the adjoining
oceanfront properties, or the dune easement line as shown on the official
Dune Easement Line Map adopted by the Borough to meet USACE future
dune limit needs, whichever is the more westerly.
MEAN HIGH-WATER LINE
Shall mean the line found by the intersection of a plane
at the elevation of mean high-water with the existing foreslope of
the beach.
M.O.U.
Shall mean any Memorandum of Understanding executed between
the Borough and the U.S. Fish and Game Wildlife Service to manage
endangered species on a local level.
NJDEP
Shall mean the New Jersey Department of Environmental Protection.
OCEANFRONT
Shall mean lands abutting the Atlantic Ocean. In the case
of the Borough of Mantoloking, oceanfront properties are those located
east of Ocean Avenue south of Lyman Street, and east of East Avenue
north of Lyman Street.
PATHWAY/WALKWAY
Shall mean an unimproved or improved, protective access way,
at grade across the dune in accordance with the specifications set
forth within this Chapter.
SAND FENCE
Shall include the term "snow fence" or "dune fence" of a
barricade type established in a line or a pattern to accumulate sand
and aid in the formation of a dune, such as picket construction consisting
of wooden lath held together by wire and affixed to wooden posts.
Alternate types of "sand fence" may be utilized if approved by the
Dune Consultant.
SEAWARD DUNE CREST
Shall mean the intersection line of the foreslope of the
dune and the top of the dune, typically elevation 22.00 NAVD88 as
constructed as part of the USACE Beachfill and Dune Project.
SEAWARD EDGE OF THE DUNE
Shall mean the intersection line of the foreslope of the
dune and the gradient of the Beach Area, or the contour line at an
elevation of eight point five (8.5) NAVD88, or the vegetation line,
or whichever is the more easterly, except when the Borough Engineer,
Borough Dune Inspector, NJDEP or USACE may have caused stakes to be
driven to mark the seaward edge of the dune, in which case it is the
line between such stakes.
SETBACK LINE
Shall mean that line determined by the setback distances
as may be specified in the Land Use Ordinance of the Borough to define
the limits of development on a buildable lot.
STATE AID AGREEMENT(S) (SAA)
Shall mean the agreement(s) made between the Borough and
the NJDEP to participate in the USACE Beachfill Project, or other
such projects where the NJDEP provides financial grants to the Borough
to support same.
TOP OF DUNE
Shall mean the intersecting line of the seaward and landward
dune crest; typically elevation 22.00 NAVD88 if constructed as part
of the USACE Beachfill and Dune Project, or potentially higher if
naturally accreted westerly of the USACE project dune construction
limits.
UPPER DRIFTLINE (RACKLINE)
Shall mean that line produced by the spring tides (highest
tides of the year) which contains ocean debris (flotsam such as seaweed,
etc.) and the seeds, rhizomes, or detached plants which can germinate
and/or grow to produce a zone of new dune vegetation.
USACE
Shall mean the United States Army Corps of Engineers.
VEGETATION LINE
Shall mean that line connecting the most westerly or seaward
naturally occurring perennial plants with other such plants or plants
placed by the USACE as part of the USACE Beachfill and Dune Project
or as placed under a Borough implemented project or Borough approved
private property owner planting program.
[Ord. No. 676-2018]
Construction east of the landward edge of the dune and the placement
there, except temporarily, of any object that would impede the flow
of sand is prohibited, except as provided in this chapter and in accordance
with any NJDEP Coastal Zone Management Rules, CAFRA regulations, the
Land Use Ordinance of the Borough (setback), and subject to permits
as may be issued pursuant to these enactments.
[Ord. No. 676-2018]
No person shall be in the dune area unless:
a. Upon a natural or improved pathway, walkway or dune platform; or
b. In the performance of such activities as may be reasonable and necessarily
required to construct or maintain the dune, dune vegetation or allowed
structures with the permission of the owner; or
c. For the purposes of inspection, topographical survey, or enforcement
of this chapter; entry for these purposes shall not be deemed an actionable
trespass; or
d. As authorized by the USACE and/or the NJDEP and the Borough for the
construction and maintenance of the initial or subsequent beach and
dune construction projects as part of the USACE 50-Year Program and
consistent with the terms of the perpetual Beachfill and Dune Maintenance
Easement executed with each oceanfront property owner (past or present)
to meet the terms of the Federal USACE Beachfill and Dune Project;
or any subsequently Borough or NJDEP approved Beachfill and Dune project
as may be implemented by the Borough pending unavailability of federal
funds.
[Ord. No. 676-2018]
The removal, cutting, burning or destruction of dune vegetation,
sand fence or such other types of dune protection devices approved
by the Borough in the dune area is prohibited except as necessary
for construction or maintenance of the Dune or USACE Beachfill and
Dune Project or subsequent independent Borough beachfill and dune
projects as may be implemented and as authorized pursuant to this
chapter or Borough approved structures under this chapter.
[Ord. No. 676-2018]
Sand that has been transported onto lands of oceanfront lots by action of wind, tides, storms or any combination thereof shall not be removed from the lot upon which it has been deposited. To the extent practicable considering the utilization of the premises, this sand may be relocated by the owner of the lot and may be moved eastwardly on the same lot to become part of the beach and dune system, or in the case of hardship in transporting same directly across the lot to the beach and dune area, the sand may be transported to a street end with a vehicular access way upon approval by the Borough. Surplus sand deposited on any improved street ends shall be restored into the Beach and Dune Area in accordance with the regulations of the NJDEP Coastal Zone Management Rules and the Borough's Prevailing NJDEP issued GP-2 permit. Any damage to existing dune vegetation as caused by the owner's sand transferring activities shall immediately be restored to comply with Subsections
11-3.7,
11-3.8 and Appendix II which may be found at the end of this chapter.
[Ord. No. 676-2018]
One of the purposes of this chapter is to achieve the maintenance
of sand dunes at the highest practical height and with a minimum dune
crest elevation of 22.0 NAVD88 to match the USACE project dune crest
design elevation or subsequent Borough adopted dune crest elevation
as may be established by the Borough's due diligence in the future
to address changing environmental conditions. To this end, the Borough
will commit the appropriate resources as available to restore and
maintain the beach and dune system from damage which may occur as
a result of a major storm and as allowed by the NJDEP in accordance
with the Borough's GP-2 permit and NJDEP CZM regulations. Borough
actions may be taken in conjunction with the NJDEP and/or the USACE
or independently as necessary to protect the Borough's residences,
infrastructure and the health, safety and welfare of the Borough residences.
The Borough's maintenance of the beach and dune system conducted
in this regard shall be limited to the area east of the Borough and
NJDEP adopted dune easement limit line. Maintenance in response to
major storms shall include all required dune vegetation, public crossovers
and dune foreslope toe fencing where previously installed by public
funds. However, no dune shall be directly or indirectly lowered or
reduced in height by the action or inaction of any owner or his agent.
However, if by actions or use of the private property owner any dune
shall be or become lower than the elevation deemed materially significant
by the Dune Inspector or duly appointed Borough representative who
is applying recognized criteria with due regard to the intent of this
chapter and reasonable use of the premises, the owner thereof shall
be obliged to provide and install additional sand to correct the damage
and install such sand fence and plantings as are prescribed by this
chapter. (See Appendix at the end of this chapter.) The owner shall
have an obligation to maintain and replace, if necessary, such fences
and plantings. If the dune is lowered or caused to be lowered by the
direct or indirect action of any owner, then the dune shall, upon
due notice to the owner, be restored to its prescribed elevation by
the owner or at his expense and subject to the provisions of this
chapter. The restored dune shall be planted and sand fenced in accordance
with the specifications set forth in the Appendix. However, in consideration
of maintenance of views from existing structures which may be obstructed
by accreting sand on top of the USACE constructed dune crest above
Elevation 22.0 NAVD88 an oceanfront owner has the potential right
to apply to the Borough and the NJDEP for a permit to groom the top
of the dune back to Elevation 22.0 NAVD88. If such activity is approved,
the owner shall immediately plant Cape American Dune Grass in the
groomed area on a spacing of 18" on center. Final determination on
the permissibility of this activity shall be made by the NJDEP during
review of the Applicant's permit application.
Crest grooming shall not be approved by the Borough unless the
elevation of the dune is shown to be a minimum of one (1) foot above
the Elevation 22.0 NAVD88 for a minimum of fifty (50%) percent of
the dune crest area constructed as part of the USACE project. Dune
elevation grooming shall not be permitted in natural dune areas unless
specifically approved by the Borough and NJDEP under the NJDEP Dune
Regulations established under N.J.A.C. 7:7-9.16"c".
[Ord. No. 676-2018]
The Dune Program Director shall make periodic dune inspections
and shall provide written advice to owners. These writings shall not
be deemed as notice of violations of this chapter, but shall be maintained
as part of the record for the subject property and may be considered
by the Court in the imposition of penalties, upon conviction, under
any subsequent complaint for violation of this chapter. Further, the
Dune Program Director shall coordinate his efforts with those of the
Dune Inspector(s) to the end that the purposes of this chapter may
be achieved.
[Ord. No. 676-2018]
A copy of this chapter shall be furnished to all oceanfront
property owners and to each applicant for a building permit for any
construction east of Ocean Avenue south of Lyman Street and east of
East Avenue, north of Lyman Street. Compliance with this subsection
shall not be a jurisdictional prerequisite in any enforcement.
[Ord. No. 676-2018]
For each and every violation of this chapter or violation of the regulations or standards set forth in the Appendix to this chapter, or the terms and conditions of any permit issued hereunder, the owner of lands abutting the beach or dune area where such violation has been committed, and any contractor or agent of the owner, or the trespasser (if the violation is of Subsection
11-3.2), shall for each and every violation be subject to the penalties set forth in Chapter
1, Section
1-5. Each and every day that such violation continues shall be considered a separate violation of this chapter.