Borough of Dunellen, NJ Riparian Buffer Zones

[HISTORY: Adopted by the Mayor and Council of the Borough of Dunellen 8-1-2011 by Ord. No. 2011-05. Amendments noted where applicable.]

§ 221-1 Intent and purpose.

The Borough of Dunellen finds that lands adjacent to streams, lakes, or other surface water bodies that are adequately vegetated provide an important environmental protection and water resource management benefit. It is necessary to protect and maintain the beneficial character of these riparian areas by implementing requirements for the establishment, protection, and maintenance of vegetated buffers alongside the surface water bodies within the Borough consistent with the interest of landowners in making reasonable economic use of lands that include such designated areas.

The purpose of these regulations is to designate riparian buffer areas and to provide for land use regulations therein in order to protect the streams, lakes, and other surface water bodies of Dunellen and to comply with N.J.A.C. 7:15-5.25(g)3,[1] which requires municipalities to adopt regulations that prevent new disturbance for projects or activities in riparian buffer areas as described herein. Compliance with the requirements of these regulations is in addition to, and not in place of, compliance with riparian buffer requirements imposed by federal or state law.

[1]

Editor's Note: N.J.A.C. 7:15-5.25, regarding evaluation criteria for wastewater management plans, was repealed by R.2016 d.149, effective November 7, 2016.

§ 221-2 Definitions.

Unless otherwise specifically indicated, the definitions of the words and/or terms utilized in this chapter shall be as defined or described in the New Jersey Water Quality Management Planning rules, N.J.A.C. 7:15, the New Jersey Stormwater Management Rules, N.J.A.C. 7:8, and/or the New Jersey Flood Hazard Area Control Act Rules, N.J.A.C. 7:13, as same may be amended from time to time.

§ 221-3 Establishment and protection of riparian buffer areas.

Except as provided in §§ 221-4 and 221-5 below, riparian buffer areas adjacent to all surface water bodies shall be protected from avoidable disturbance and shall be delineated as follows:

(1)

The riparian buffer area shall be 150 feet wide along both sides of the following waters not designated as C1 waters:

(a)

Any trout production water and all upstream waters (including tributaries);

(b)

Any trout maintenance water and all upstream waters (including tributaries) within one linear mile as measured along the length of the regulated water;

(c)

Any segment of a water flowing through an area that contains documented habitat for threatened or endangered species of plant or animal, which is critically dependent on the surface water body for survival, and all upstream waters (including tributaries) within one linear mile as measured along the length of the regulated water; and

(2)

For all other surface water bodies, a riparian buffer area 50 feet wide shall be maintained along both sides of the water.

The delineation of a riparian buffer area as described above shall be based on NJDEP geographic information system digital data or on more refined field data found acceptable to the Borough Engineer or Zoning Officer. The boundaries of the riparian buffer area shall be based on land surveys, field sampling and investigations, laboratory test results, a signed and sealed certification as to the presence or absence of acid producing soils prepared by a licensed professional engineer of the State of New Jersey, and any other data deemed necessary by the Borough Engineer or Zoning Officer, or required by state regulations or the NJDEP, all of which shall be furnished by the applicant prior to any activity or disturbance in any area affected by these regulations.

The portion of the riparian buffer area that lies outside of a surface water body shall be measured landward from the top of bank. If a discernible bank is not present along a surface water body, the portion of the riparian buffer area outside the surface water body shall be measured landward as follows:

(1)

Along a linear fluvial or tidal water, such as a stream or swale, the riparian buffer area shall be measured landward of the feature's center line;

(2)

Along a non-linear fluvial water, such as a lake or pond, the riparian buffer area shall be measured landward of the normal water surface limit;

(3)

Along a non-linear tidal water, such as a bay or inlet, the riparian buffer area shall be measured landward of the mean high-water line; and

(4)

Along an amorphously shaped feature such as a wetland complex, through which water flows but which lacks a definable channel, the riparian buffer area shall be measured landward of the feature's center line.

The riparian buffer area regulations set forth in this chapter shall function as an additional layer of regulatory review and development restriction where the conditions in Subsection A above apply. The zoning restrictions applicable to a given area shall remain in full force except where the provisions of these riparian buffer area regulations differ from the zoning restrictions; in which case, the provision that is more restrictive shall govern.

The applicant or applicant's designated representative shall be responsible for the initial determination of the presence of riparian buffer area conditions on a site and for identifying the riparian buffer area on any plan submitted to the Borough in conjunction with an application for a construction permit, subdivision approval, site plan/land development approval, bulk or use variance approval, and/or any other approval for an activity or improvement involving land disturbance. This initial determination shall be subject to review and approval by the Borough Zoning Officer and/or Borough Engineer, as appropriate, and, where required by state regulations, the NJDEP.

§ 221-4 Variances.

Except as set forth in § 221-5, Exceptions, below, and to the extent allowed by the New Jersey Stormwater Management Rules (N.J.A.C. 7:8), the New Jersey Flood Hazard Area Control Act Rules (N.J.A.C. 7:13), and the New Jersey Planning Act Rules (N.J.A.C. 7:38), any project or activity involving disturbance in a riparian buffer area shall require variance relief pursuant to N.J.S.A. 40:55D-70. In addition to the applicable requirements of N.J.S.A. 40:55D-70, no such variance relief may be granted unless the applicant proves that the following criteria have been met:

(1)

The disturbance is proposed to be located on a lot in existence as of the effective date of this chapter;

(2)

There is insufficient room outside the riparian buffer area for the proposed use otherwise permitted by the underlying zoning;

(3)

There is no other reasonable or prudent alternative to placement in the riparian buffer area, including obtaining variances from setback or other requirements that would allow conformance with the riparian buffer area requirements; and

(4)

The applicant proves through the submission of appropriate maps, drawings, reports and testimony, that the disturbance is necessary to:

(a)

Protect the public health, safety or welfare;

(b)

Provide an environmental benefit; or

(c)

Prevent undue economic hardship to the property owner by denying the property owner all economically viable use of the property; provided the hardship was not self-created.

(5)

The applicant shall at all times bear the burden of proving that the above criteria have been met, in addition to the criteria that the applicant must prove pursuant to N.J.S.A. 40:55D-70.

All variance requests shall be accompanied by a riparian buffer area disturbance plan prepared by a New Jersey professional engineer or certified landscape architect, which plan shall fully evaluate the effects on the riparian buffer area of any proposed uses, activities or improvements resulting in any ground disturbance. The riparian buffer area disturbance plan shall include the following information:

(1)

Existing vegetation;

(2)

Field-delineated surface water bodies;

(3)

Field-delineated wetlands;

(4)

The one-hundred-year floodplain;

(5)

Flood hazard areas, including floodway and flood fringe areas, as delineated by the NJDEP;

(6)

Soil classifications as found on soil surveys;

(7)

Field soil sampling, investigations, laboratory test results, and a signed and sealed certification as to the presence or absence of acid producing soils prepared by a licensed professional engineer of the State of New Jersey;

(8)

Existing subdrainage areas on site with HUC (Hydrologic Unit Code) 14 designations;

(9)

Slopes in each subdrainage area segmented into sections of slopes less than 15%; above 15% but less than 20%; and steep slopes greater than 20%; and

(10)

Description of all proposed uses/activities and improvements, and full evaluation of the effects of same in the riparian buffer area.

§ 221-5 Exceptions.

The provisions of § 221-4 notwithstanding, and to the extent allowed under the New Jersey Stormwater Management Rules (N.J.A.C. 7:8) and the New Jersey Flood Hazard Area Control Act Rules (N.J.A.C. 7:13), and subject further to the review and approval by the NJDEP to the extent required by said rules, the following projects or activities involving disturbance in any riparian buffer area established pursuant to these regulations shall be allowed, and variance relief pursuant to § 221-4 shall not be required:

Redevelopment within the limits of existing impervious surfaces;

Linear development with no feasible alternative route; for the purposes of this section, "linear development" shall mean any development that is constructed in a linear fashion across the landscape, such as power lines, roads, sidewalks, bike paths, walkways, railways, pipelines (gas, oil), telecommunications infrastructure (excluding towers or other vertical improvements), and man-made waterways;

Disturbance that is in accordance with a stream corridor restoration or stream bank stabilization plan or project approved by the NJDEP;

Disturbance necessary to provide for public pedestrian access or water-dependent recreation that meets the requirements of the New Jersey Freshwater Wetlands Protection Act Rules, N.J.A.C. 7:7A, or the New Jersey Flood Hazard Area Control Act Rules, N.J.A.C. 7:13;

Disturbance with no feasible alternative required for the remediation of hazardous substances performed with NJDEP or federal oversight pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11a et seq., or the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.A. §§ 9601 et seq.;

Any wetlands mitigation project that has been approved by the NJDEP, subject to compliance with a riparian buffer area disturbance plan prepared in accordance with § 221-4B above and approved by the Borough Engineer; or

Any municipal or municipally sponsored development or project that meets the requirements of the New Jersey Freshwater Wetlands Protection Act Rules, N.J.A.C. 7:7A, or the New Jersey Flood Hazard Control Act Rules, N.J.A.C. 7:13.

§ 221-6 Enforcement; violations; penalties.

The regulations set forth in this chapter shall be subject to, and enforced in the same manner as, the violation and penalty provisions of Article _____ of this Code.

§ 221-7 Appeals.

Any person aggrieved by any decision, action or inaction of any Borough official (other than the Construction Official) pursuant to these regulations, including any determination of the location of any riparian buffer area boundary, may appeal such decision, action or inaction to the Zoning Board of Adjustment in accordance with the provisions set forth in Article _____ of this Code.

§ 221-8 Conflicts.

Any Borough regulation or requirement that is inconsistent or in conflict with any of the regulations set forth in this chapter is hereby superseded to the extent of such inconsistency or conflict, and the provisions of this chapter shall govern.

§ 221-9 Interpretation; severability.

The regulations set forth in this chapter shall be construed in such manner as not to conflict with any provision of New Jersey or federal law. Each section or subsection of this chapter shall be deemed an independent section or subsection, and any section, subsection or part thereof held by a court of competent jurisdiction to be unconstitutional, void or ineffective for any reason shall not be deemed to affect the validity or constitutionality of any other section, subsection or part thereof.

§ 221-10 Effective date.

The regulations set forth in this chapter shall take effect immediately upon their adoption and publication and filing with the Middlesex County Planning Board, as required by law.