Borough of Mount Arlington, NJ Highlands Preservation Area

Result in the ultimate disturbance of one acre or more of land;

Produce a cumulative impervious surface area of 1/4 acre, or more; or

Introduce or expand on any of the following land uses/facilities:

Landfills;

Permanent storage or disposal of hazardous wastes, industrial or municipal sludge or radioactive materials, including solid waste landfills;

Collection and transfer facilities for hazardous wastes, solid wastes that contain hazardous materials, and radioactive materials;

(d)

Industrial treatment facility lagoons; or

(e)

Any Major or Minor Potential Contaminant Source (as identified in Appendix A and Appendix B of this Section 17-66, respectively, and included as attachments to this chapter) on lands located within 200 feet of the wellhead of any public community well or public non-community well, as these are defined at subsection 17-66.6 below.

All thresholds in paragraphs a and b above, shall be interpreted to apply cumulatively over time, beginning as of the effective date of this Section 17-66. If or when any one of the thresholds is reached, this Section 17-66 shall apply to any and all development in excess of that threshold. Where an application proposes a mixed use, the thresholds in paragraph b., for nonresidential development shall apply to the whole of the project, while that in paragraph a., shall apply to the residential component. For purposes of this Section 17-66, the phrases "Application for Development," "Highlands Area," "residential development," "ultimate disturbance," and "cumulative impervious surface area" shall be defined as provided at subsection 17-66.6 below.

[1]

Editor's Note: Section 17-66 was adopted 10/6/15 by Ordinance No. 08-2015.

§ 17-66.2 Administrative Completeness.

[Ord. No. 08-2015 § 2]

Consistency Determinations Required. No Application for Development included in subsection 17-66.1 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:

A Consistency Determination from the Highlands Council indicating that the application is consistent with the Highlands Regional Master Plan; or

A Consistency Determination from the Highlands Council indicating that the application is not consistent with the Highlands Regional Master Plan, accompanied by a certification, as detailed in paragraph b below.

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.

Checklist Waiver. The Borough may issue a waiver from the provisions of this subsection 17-66.2 where it can be established by the applicant and can be verified by the designated representative(s) of the Borough that:

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 subsection 17-66.5b, below), but eligibility for an exemption has been sufficiently established by the applicant; or

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.

Highlands Council Call-Up. All municipal waivers or findings of application completeness issued pursuant to this subsection 17-66.2 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 paragraph. 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 timeframe, 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.

§ 17-66.3 Notice Requirements.

[Ord. No. 08-2015 § 3]

The provisions of this subsection 17-66.3 shall apply in addition to all requirements concerning public notice for Applications for Development as provided under the MLUL and required pursuant to the underlying municipal land use ordinances.

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.

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.

§ 17-66.4 Highlands Council Call-Up Provisions.

[Ord. No. 08-2015 § 4]

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 timeframes 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.

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:

The Highlands Council call-up period has expired without issuance of a notice seeking review of the application by the Highlands Council; or

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.

Amendments. In the event that Highlands Council review of an approved Application for Development pursuant to this subsection 17-66.4 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.

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.

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.

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.

§ 17-66.5 Exclusions and Exemptions.

[Ord. No. 08-2015 § 5]

Exclusions. The following specific improvements and related applications shall be excluded from the provisions of this Section 17-66:

The reconstruction, within the same footprint, of any building or other structure lawfully existing as of the effective date of this Section 17-66, in the event of its destruction or partial destruction by fire, storm, natural disaster, or any other unintended circumstance.

Any improvement or alteration to a building or other structure lawfully existing as of the effective date of this Section 17-66, where such improvement or alteration is necessary for compliance with the provisions of the Americans with Disabilities Act, or to otherwise provide accessibility to the disabled.

Any Agricultural or Horticultural Use or Development that would not result in either:

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 subsection 17-66.6, below); or

Construction of three or more residential dwelling units (including accessory dwelling units) served by individual on-site septic system(s).

Exemptions. Any activity, improvement or development project listed and demonstrated to constitute a Highlands Act exemption shall be exempt from the provisions of this Section 17-66. 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:

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.

AGRICULTURAL OR HORTICULTURAL DEVELOPMENT

Municipal Determination. Pursuant to Borough Ordinance #09-15, entitled "Borough of Mount Arlington Highlands Area Exemption Ordinance," effective as of October 6, 2015 and codified as Section 17-67, for any application under this Section 17-66 involving Highlands Act Exemptions #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.

§ 17-66.6 Definitions.

[Ord. No. 08-2015 § 6]

For the purpose of this Section 17-66, the following terms, phrases, words, and their derivations shall have the meanings stated herein unless their use in the text of this Section 17-66 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.

Means construction for the purposes of supporting common farm site 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.

AGRICULTURAL OR HORTICULTURAL USE

Means the use of land for common farm site 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.

AGRICULTURAL IMPERVIOUS COVER

Means agricultural or horticultural buildings, structures or facilities with or without flooring, residential buildings and paved areas, but not meaning temporary coverings.

APPLICANT

Means a developer submitting an Application for Development.

APPLICATION FOR DEVELOPMENT

Means 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 permits pursuant to section 25 or section 27 of P.L. 1975, c. 291 (C. 40:55D-34 or C. 40:55D-36).

DISTURBANCE

Means the placement of impervious surface, the exposure or movement of soil or bedrock, or the clearing, cutting, or removing of vegetation.

DISTURBANCE, ULTIMATE

Means 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.

FARM MANAGEMENT UNIT

Means 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.

HIGHLANDS COUNCIL

Means the New Jersey Highlands Water Protection and Planning Council.

HIGHLANDS ACT

Means 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.

HIGHLANDS APPLICABILITY DETERMINATION (HAD)

Means 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.

HIGHLANDS AREA

Means 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 Section 17-66, the Borough of Mount Arlington Highlands Preservation Area.

HIGHLANDS REGION

Means all that area within the boundaries of the municipalities listed in subsection a of section 7 of the Highlands Act.

IMPERVIOUS SURFACE

Means 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.

IMPERVIOUS SURFACES, CUMULATIVE

Means 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.

MAJOR POTENTIAL CONTAMINANT SOURCES (PCS)

Means land uses and activities determined by the Highlands Council to pose a major risk of ground water contamination (see Appendix A included as an attachment to this chapter).

MINOR POTENTIAL CONTAMINANT SOURCES (PCS)

Means land uses and activities determined by the Highlands Council to pose a minor risk of ground water contamination (see Appendix B included as an attachment to this chapter).

MUNICIPAL LAND USE LAW (MLUL)

Means the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.

NJDEP

New Jersey Department of Environmental Protection.

NJDEP PRESERVATION AREA RULES

Means 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.

PLANNING AREA

Means lands within the Highlands Region not within the Preservation Area (N.J.S.A. 13:20-7).

PLAN CONFORMANCE

Means 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.

PRESERVATION AREA

Means that portion of the Highlands Region so designated by subsection b of section 7 of the Highlands Act.

PUBLIC COMMUNITY WELL

Means 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 25 year-round residents.

PUBLIC NON-COMMUNITY WELL

Means 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.

REGIONAL MASTER PLAN (RMP)

Means the Highlands Regional Master Plan or any revision thereof adopted by the Highlands Council pursuant to N.J.S.A. 13:20-8.

SOLAR PANEL

Means 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.)

STRUCTURE

Means 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.

§ 17-67 HIGHLANDS PRESERVATION AREA EXEMPTION ORDINANCE.

§ 17-67.1 Title, Purpose, Scope. [1]

[Ord. No. 09-2015 Article 1]

Title.

This Section 17-67 shall be known and cited as the "Borough of Mount Arlington Highlands Area Exemption Ordinance."

Purpose.

The purpose of this Section 17-67 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 Borough's 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 Borough's master plan, development regulations, or other regulations adopted pursuant to the approval of the Borough's Petition for Plan Conformance by the Highlands Council.

Scope/Applicability.

The provisions of this Section 17-67 pertain to activities, improvements and development projects involving lands located within the Borough's Highlands Area. The Highlands Area comprises that portion of the municipality for which the applicable provisions of the Borough Master Plan, land use ordinances and other pertinent regulations have been deemed by the Highlands Council to be in conformance with the Highlands Regional Master Plan (RMP) (see subsection 17-67.3a(1)). The provisions of this Section 17-67 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 Section 17-67 deprive any person or entity from seeking a Highlands exemption determination from the NJDEP or the Highlands Council.

Statutory Authority.

This Section 17-67 is adopted under the authority of the Highlands Act and the New Jersey Municipal Land Use Law ("MLUL", N.J.S.A. 40:55D-1 et seq.). In the Highlands Act, the Legislature identified numerous categories of activities that are exempt from the Act, the RMP, the Preservation Area Rules, and any amendments to a master plan, development regulations, or other regulations adopted by a local government to conform them to the RMP. See N.J.S.A. 13:20-28. The Legislature granted the Highlands Council the authority to administer the plan conformance process and to approve, reject, or approve with conditions municipal plan conformance petitions. See N.J.S.A. 13:20-14, -15. The Legislature, through the MLUL, granted authority to New Jersey municipalities to govern land use and development within their borders and, through the Highlands Act, established requirements for Highlands municipalities to conform their land use and development regulations with the RMP. In a July 19, 2012 Memorandum of Understanding (MOU) between the Highlands Council and the NJDEP, the Council and the NJDEP recognized the circumstances in which it would be appropriate for conforming, Highlands Council-certified municipalities to make determinations regarding specified Highlands Act exemptions.

Severability.

If any section, sentence, clause or phrase of this Section 17-67 is held to be invalid or unconstitutional by any court of competent jurisdiction, such holding shall in no way affect the validity of the ordinance as a whole, or of any other portion thereof.

Effective Date.

This Section 17-67 shall take effect after final passage and publication in the manner required by law.

[1]

Editor's Note: Section 17-67 was adopted 10/6/15 by Ordinance No. 09-2015.

§ 17-67.2 Definitions.

[Ord. No. 09-2015 Article 2]

Word Usage.

Terms used in the body of this Section 17-67 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 are intended to have the same meaning as set forth in the MLUL. For purposes of this Section 17-67, the terms "shall" and "must" are indicative of a mandatory action or requirement while the word "may" is permissive.

Definitions.

For purposes of this Section 17-67, the following definitions shall apply:

AGRICULTURAL OR HORTICULTURAL DEVELOPMENT

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.)

AGRICULTURAL OR HORTICULTURAL USE

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.)

AGRICULTURAL IMPERVIOUS COVER

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.)

APPLICANT

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 Section 17-67.

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 section 25 or section 27 of P.L. 1975, c. 291 (C. 40:55D-34 or C. 40:55D-36).

BUILDING PERMIT

Used interchangeably with the term "Construction Permit;" see definition below.

CONSTRUCTION PERMIT

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.

DEVELOPMENT

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. (N.J.S.A. 13:20-3; N.J.S.A. 40:55D-4.)

DISTURBANCE

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.)

DISTURBANCE, ULTIMATE

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.

ENVIRONMENTAL LAND USE OR WATER PERMIT

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 (C. 13:9B-1 et seq.), the "Water Supply Management Act," P.L. 1981, c. 262 (C. 58:1A-1 et seq.), the "Water Pollution Control Act," P.L. 1977, c. 74 (C. 58:10A-1 et seq.), "The Realty Improvement Sewerage and Facilities Act (1954)," P.L. 1954, c. 199 (C. 58:11-23 et seq.), the "Water Quality Planning Act," P.L. 1977, c. 75 (C. 58:11A-1 et seq.), the "Safe Drinking Water Act," P.L. 1977, c. 224 (C. 58:12A-1 et seq.), or the "Flood Hazard Area Control Act," P.L. 1962, c. 19 (C. 58:16A-50 et seq.) (N.J.S.A. 13:20-3).

FARM MANAGEMENT UNIT

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.)

FOREST MANAGEMENT PLAN

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 forest land'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 10 year period. (RMP, Glossary.)

FARMSITE

A Farm Management Unit as defined above.

HIGHLANDS APPLICABILITY DETERMINATION

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.

HIGHLANDS AREA

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.

HIGHLANDS PRESERVATION AREA APPROVAL (HPAA)

An approval issued by the NJDEP pursuant to 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.

IMMEDIATE FAMILY MEMBER

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.)

IMPERVIOUS SURFACE

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.)

IMPERVIOUS SURFACES, CUMULATIVE

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.

MAJOR HIGHLANDS DEVELOPMENT

Except as otherwise provided pursuant to subsection a of section 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.)

MASTER PLAN

For purposes of this Section 17-67, all references to the "Borough 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 Borough Planning Board.

MASTER PLAN, HIGHLANDS REGIONAL (RMP)

For purposes of this Section 17-67, 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."

MUNICIPAL LAND USE LAW (MLUL)

The New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.

NJDEP

New Jersey Department of Environmental Protection.

NJDEP PRESERVATION AREA RULES

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.

PLANNING AREA

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).

PRESERVATION AREA

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).

SOLAR PANEL

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.)

STRUCTURE

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.

§ 17-67.3 Geographic Area of Applicability.

[Ord. No. 09-2015 Article 3]

Highlands Planning Area and Preservation Area.

The Highlands Act establishes the Preservation Area and Planning Area of the Highlands Region. It describes the varied attributes of each and sets forth the major land use planning goals that pertain to the lands located within each. The Act defines the geographic extent of the Highlands Region to include the aggregated land area making up its constituent municipalities (N.J.S.A. 13:20-7a). It provides a physical delineation of the Preservation Area by use of a specific metes and bounds description (N.J.S.A. 13:20-7b), designating all remaining lands within the Highlands Region as the Planning Area.

Highlands Area.

The Borough Master Plan incorporates the Highlands Preservation Area, inclusive of the goals applicable to it, as an integral component of the planning and land use policies of the municipality. For purposes of this Section 17-67, this Area is designated as the Borough's Highlands Area. A map of the Borough's Highlands Area appears in Exhibit 1 included as an attachment to this chapter.

Applicability Specified.

This Section 17-67 applies specifically and solely to lands designated as the Borough's Highlands Area, as delineated in Exhibit 1.

§ 17-67.4 Highlands Act Exemption Determinations.

[Ord. No. 09-2015 Article 4]

Highlands Act Exemptions.

Section 30 of the Highlands Act identifies as exempt, specific activities, improvements and development projects affecting lands within the Highlands Region. Such activities, improvements and projects may be proposed as a component of any type of land use application submitted to the municipality for approval, including but not limited to zoning permit applications, building permit applications, and Applications for Development (as defined at subsection 17-67.2b). Any such qualifying activity, improvement or development project is exempt, with regard specifically to that activity, improvement or development project, from the requirements of the Highlands Act, the Highlands RMP, the NJDEP Preservation Area Rules, and any amendments to the Borough's master plan, development regulations, or other regulations adopted pursuant to the approval of Borough's Petition for Plan Conformance by the Highlands Council. Such an exemption specifically applies to any Highlands Area land use ordinance adopted by the Borough pursuant to the Highlands Council's approval of Borough's Petition for Plan Conformance.

Where any application submitted to the municipality for approval proposes to rely upon a Highlands Act Exemption, the applicant must, as a condition of application completeness, and prior to review or approval of the application by the applicable municipal authority, provide sufficient evidence that the proposed activity, improvement, or development project in fact qualifies as a Highlands Act Exemption. Such evidence shall consist of either a State Agency Exemption Determination or a Municipal Exemption Determination (see paragraphs a(1) or a(2) below) indicating that the proposed activity, improvement, or development project qualifies for a Highlands Act Exemption.

State Agency Exemption Determination.

State Agency Exemption Determinations shall consist of either, a Highlands Applicability Determination issued by the NJDEP for a Preservation Area proposal, or a Highlands Exemption Determination issued by the Highlands Council for a Planning Area proposal. State Agency Determinations may be requested with regard to any Highlands Act Exemption, however for applications involving any exemption not identified at paragraph b below, a State Agency Exemption Determination is required. Any applicant seeking a formal exemption determination for a capital or other project of any State entity or local government unit, or for any other publicly-owned or controlled land or facility, also must request a State Agency Exemption Determination.

Municipal Exemption Determination.

For an application involving any of the specific exemptions listed in paragraph b below, the applicant may request a Municipal Exemption Determination. The applicant may rely upon the findings of a Municipal Exemption Determination to the same extent as would apply to an exemption determination issued by the Highlands Council or the NJDEP.

Highlands Act Exemptions Eligible for Municipal Determination.

Effective as of the date on which the municipality receives written authorization from the Highlands Council to proceed, an applicant may seek a Municipal Exemption Determination for the Highlands Act Exemptions listed hereunder.

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.

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 (1/4) 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 (see paragraph d below). Municipal Exemption Determinations in such instances shall not take effect until the applicant has provided proof of filing of the approved Deed Notice.

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 (1/4) acre or more. This exemption shall not apply to the reconstruction of any agricultural or horticultural building or structure for a non-agricultural or non-horticultural use.

For purposes of this Section 17-67, 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 (1/4) 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. See In re August 16, 2007 Determination of NJDEP ex rel. Christ Church, 414 N.J. Super. 592 (App. Div. 2010), certif. denied, 205 N.J. 16 (2010).

For Preservation Area determinations, the applicable date of lawful existence shall be August 10, 2004, the date of enactment of the Highlands Act. For Planning Area determinations, the date of lawful existence shall coincide with the effective date of the municipally-adopted Highlands Area Checklist Ordinance.

(4)

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.

(5)

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.

(6)

Exemption 7. An activity conducted in accordance with an approved woodland management plan pursuant to section 3 of the "Farmland Assessment Act," P.L. 1964, c. 48 (C. 54:4-23.3) or a forest stewardship plan approved pursuant to section 3 of P.L. 2009, c. 256 (C. 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.

(7)

Exemption 8. The construction or extension of trails with non-impervious surfaces on publicly owned lands or on privately owned lands where a conservation or recreational use easement has been established.

Exemption Designee(s).

Municipal Exemption Determinations regarding Highlands Act Exemptions shall be issued by the Borough Planner or Borough Engineer. The Exemption Designee(s) shall be authorized to issue Municipal Exemption Determinations on behalf of the municipality, and shall only begin to do so, after satisfactory completion of a Highlands Council training class for which the individual(s) has/have received formal certification from the Highlands Council.

Updates to Training Certification.

In the event of programmatic changes, updated information, or modifications to procedures, updated training certification may be required of Exemption Designees in order to maintain qualifications for providing Municipal Exemption Determinations. The Highlands Council will provide training modules on an as-needed basis, to provide base training to new employees, and/or to further the expertise of already-certified individuals. Exemption Designees and the municipalities they serve will be advised of any need for upgraded training, which will be provided and funded by the Highlands Council.

Interim Determinations.

For the duration of any period during which the municipality is without a qualified Exemption Designee(s) due to changes in personnel or other extenuating circumstances, applicants seeking Highlands Act Exemption Determinations shall be referred to the NJDEP or the Highlands Council, for a State Agency Determination pursuant to paragraph a(1), above.

Application Procedures.

Municipal Exemption Applications.

Requests for Municipal Exemption Determination shall be submitted on forms provided by the Construction Department 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. Required submission materials applicable to each exemption, appear at paragraph g., below.

Completeness Determination.

The Exemption Designee shall review the application and all accompanying materials to determine whether sufficient information has been submitted to make a determination on the application. In the event of a finding that the application is incomplete, the Exemption Designee shall, within 10 calendar days of receipt, issue such findings in writing to the applicant, indicating what information is required to properly consider the application.

Time for Determination.

The Exemption Designee shall issue Municipal Exemption Determinations within 15 calendar days of receipt of a complete application. The Exemption Designee may consult with the Executive Director (or applicable designee) of the Highlands Council as needed in making any exemption determination, however, in such circumstance, the Exemption Designee shall seek such assistance within the 15 day period and shall issue the determination within at least 10 calendar days of receiving the requested guidance. In no case shall failure to meet this date constitute approval of the exemption.

(4)

Determinations.

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 Exemptions #2 shall be contingent upon submission of proof of filing of the required Deed Notice, as set forth at paragraph d(6), below.

(5)

Notice of Determination Required.

The Exemption Designee shall provide copies of all Municipal Exemption Determinations including a copy of the full application, to the Highlands Council and for decisions regarding lands in the Highlands Preservation Area, to the NJDEP, in either case, within 10 business days of issuance.

(6)

Deed Notice for Exemption #2.

Any Municipal Exemption Determination that certifies to the applicability of Highlands Act Exemption #2 (paragraph b above), 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.

Clear identification of the name(s) and address(es) of the owner(s) in fee of the property;

Designated tax block and lot number(s), street address(es), municipality and county of location of the property;

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.

Appeal of Municipal Exemption Determination.

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 in the case of any Preservation Area Exemption, and with the Highlands Council, in the case of any Planning Area Exemption. All appeals shall be copied to the Exemption Designee, who shall immediately transmit to the NJDEP or the Highlands Council, as applicable, 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 or the Highlands Council shall stay all proceedings in furtherance of its approval by the municipality.

Effect of Certified Exemption.

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.

Application Fees.

The fee for Municipal Exemption Determination shall be $100 non-refundable application fee. If deemed necessary by the Borough's construction code official, engineer or planner, an appropriate escrow fee may be required from the applicant to address any expenses that might be incurred in the review of the application.

Submission Requirements.

All applications shall be accompanied by the Municipal Exemption Determination Application Form, the applicable fees, and the information listed below, as applicable to the particular exemption or exemption(s) being sought by the applicant. All references to professional preparers indicated herein shall be construed to include any and all qualified individuals licensed, certified, or otherwise eligible and authorized to complete such work, in accordance with the applicable laws and legal requirements of the State of New Jersey including but not limited to the MLUL (N.J.S.A. 40:55D-1 et seq.) and Title 13 of the New Jersey Administrative Code, Law and Public Safety. Where the Exemption Designee finds that any submission item is not necessary to address the evidentiary requirements that must be satisfied for issuance of an Exemption Determination, either because alternate items have been provided by the applicant, or the relevant information is readily available through records, maps, or any other documents on file in the offices of the municipality, the Exemption Designee may waive the applicant's obligation to submit such information.

Exemption 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;

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

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.

Exemption 2.

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;

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;

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

(d)

A metes and bounds description of the area of the lot to be disturbed, limited to less than one acre and a draft conservation restriction or deed notice (pursuant to paragraph d(5), above) to cover the balance of the lot.

Exemption 4.

A parcel plan certified by a licensed New Jersey Professional Engineer depicting:

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 for Preservation Area projects and as of the effective date of the municipal Highlands Area Checklist Ordinance or Highlands Area Land Use Ordinance, whichever is earlier; and

All proposed development including all structures, impervious surfaces, clearing limits, and limits of disturbance, including grading; and

A copy of any official documentation of the original date of construction of the building or otherwise establishing the lawfulness of existing impervious surfaces.

(4)

Exemption 5.

A copy of any official documentation proving the single family dwelling was in existence on August 10, 2004;

A description of the proposed improvement; and

A certification from the applicant that the property and all improvements will continue to be used for single family dwelling purposes.

(5)

Exemption 6.

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;

For improvements to a place of worship, documentation showing that the entity, society or association, or association organized primarily for religious purposes has non-profit status;

A site plan certified by a licensed New Jersey Professional Engineer depicting:

All existing property improvements including all structures, grading, clearing, impervious surfaces and limits of disturbance, existing on the site on August 10, 2004; and

All proposed development including all structures, impervious surfaces, clearing limits, and limits of disturbance, including grading.

(6)

Exemption 7.

For a private landowner with an approved woodland management plan or forest stewardship plan:

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;

A brief description of the total area of woodlands that is the subject of the approved woodland management plan or forest stewardship plan;

[iii]

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

[iv]

A copy of the approved woodland management plan or forest stewardship plan.

For the normal harvesting of forest products in accordance with a forest management plan or forest stewardship plan approved by the State Forester:

A brief description of the total area where the normal harvesting of forest products occurs;

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

[iii]

A copy of a forest management plan or forest stewardship plan approved by the State Forester.

(7)

Exemption 8.

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;

A written description of the non-impervious materials to be used; and