[Ord. No. 719, 10-3-2012]
The purpose of this article is to designate riparian zones,
and to provide for land use regulation therein in order to protect
the streams, lakes, and other surface water bodies of the Borough
of Frenchtown and to comply with N.J.A.C. 7:15-5.25(g)3, which requires
municipalities to adopt an ordinance that prevents new disturbance
for projects or activities in riparian zones as described herein.
Compliance with the riparian zone requirements of this article does
not constitute compliance with the riparian zone or buffer requirements
imposed under any other federal, state or local statute, regulation
or ordinance.
[Ord. No. 719, 10-3-2012]
The following definitions shall be used in interpreting and
applying the provisions of this article:
ACID-PRODUCING SOILS
Soils that contain geologic deposits of iron sulfide minerals
(pyrite and marcasite) which, when exposed to oxygen from the air
or from surface waters, oxidize to produce sulfuric acid. Acid producing
soils, upon excavation, generally have a pH of 4.0 or lower. After
exposure to oxygen, these soils generally have a pH of 3.0 or lower.
Information regarding the location of acid producing soils in New
Jersey can be obtained from local Soil Conservation District offices.
APPLICANT
A person, corporation, government body or other legal entity
applying to the Borough Planning Board/Board of Adjustment or applying
for a zoning permit or for a construction permit who is proposing
to engage in any activity that is regulated by the provisions of this
article, and that would be located in whole or in part within a regulated
riparian zone.
CATEGORY ONE WATERS or C1 WATERS
Shall have the meaning ascribed to this term by the Surface
Water Quality Standards, N.J.A.C. 7:9B, for purposes of implementing
the antidegradation policies set forth in those standards, for protection
from measurable changes in water quality characteristics because of
their clarity, color, scenic setting, and other characteristics of
aesthetic value, exceptional ecological significance, exceptional
recreational significance, exceptional water supply significance,
or exceptional fisheries resources.
DISTURBANCE
The placement of impervious surface, the exposure or movement
of soil or bedrock, or the clearing, cutting, or removing of vegetation.
INTERMITTENT STREAM
A surface water body with definite bed and banks in which
there is not a permanent flow of water and shown on the New Jersey
Department of Environmental Protection Geographic Information System
(GIS) hydrography coverages or, in the case of a Special Water Resource
Protection Area (SWRPA) pursuant to the stormwater management rules
at N.J.A.C. 7:8-5.5(h), C1 waters as shown on the USGS quadrangle
map or in the County Soil Surveys.
LAKE, POND, or RESERVOIR
Any surface water body shown on the New Jersey Department
of Environmental Protection Geographic Information System (GIS) hydrography
coverages or, in the case of a Special Water Resource Protection Area
(SWRPA) pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h),
C1 waters as shown on the USGS quadrangle map or in the County Soil
Surveys; that is an impoundment, whether naturally occurring or created
in whole or in part by the building of structures for the retention
of surface water. This excludes sedimentation control and stormwater
retention/detention basins and ponds designed for treatment of wastewater.
PERENNIAL STREAM
A surface water body that flows continuously throughout the
year in most years and shown on the New Jersey Department of Environmental
Protection Geographic Information System (GIS) hydrography coverages
or, in the case of a Special Water Resource Protection Area (SWRPA)
pursuant to the Stormwater Management rules at N.J.A.C. 7:8-5.5(h),
C1 waters as shown on the USGS quadrangle map or in the County Soil
Surveys.
RIPARIAN ZONE
The land and vegetation within and directly adjacent to all
surface water bodies, including but not limited to lakes, ponds, reservoirs,
perennial and intermittent streams, up to and including their point
of origin, such as seeps and springs, as shown on the New Jersey Department
of Environmental Protection's GIS hydrography coverages or, in the
case of a Special Water Resource Protection Area (SWRPA) pursuant
to the Stormwater Management rules at N.J.A.C. 7:8-5.5(h), C1 waters
as shown on the USGS quadrangle map or in the County Soil Surveys.
There is no riparian zone along the Atlantic Ocean nor along any man-made
lagoon or oceanfront barrier island, spit or peninsula.
SPECIAL WATER RESOURCE PROTECTION AREA or SWRPA
A 300-foot area provided on each side of a surface water
body designated as a C1 water or tributary to a C1 water that is a
perennial stream, intermittent stream, lake, pond, or reservoir, as
defined herein and shown on the USGS quadrangle map or in the County
Soil Surveys within the associated HUC 14 drainage, pursuant to the
Stormwater Management rules at N.J.A.C. 7:8-5.5(h).
SURFACE WATER BODY(IES)
Any perennial stream, intermittent stream, lake, pond, or
reservoir, as defined herein. In addition, any regulated water under
the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-2.2, or state
open waters identified in a letter of interpretation issued under
the Freshwater Wetlands Protection Act Rules at N.J.A.C. 7:7A-3 by
the New Jersey Department of Environmental Protection Division of
Land Use Regulation shall also be considered surface water bodies.
THREATENED OR ENDANGERED SPECIES
A species identified pursuant to the Endangered and Nongame
Species Conservation Act, N.J.S.A. 23:2A-1 et seq., the Endangered
Species Act of 1973, 16 U.S.C. § 1531 et seq. or the Endangered
Plant Species List, N.J.A.C. 7:5C-5.1, and any subsequent amendments
thereto.
TROUT MAINTENANCE WATER
A section of water designated as trout maintenance in the
New Jersey Department of Environmental Protection's Surface Water
Quality Standards at N.J.A.C. 7:9B.
TROUT PRODUCTION WATER
A section of water identified as trout production in the
New Jersey Department of Environmental Protection's Surface Water
Quality Standards at N.J.A.C. 7:9B.
[Ord. No. 719, 10-3-2012]
A. Except as provided in §§
50-1404 and
50-1405 below, riparian zones adjacent to all surface water bodies shall be protected from avoidable disturbance and shall be delineated as follows:
(1)
The riparian zone shall be 300 feet wide along both sides of
any Category One waters (C1 waters), and all upstream tributaries
situated within the same HUC 14 watershed.
(2)
The riparian zone 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 a 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
(d)
Any segment of a water flowing through an area that contains
acid producing soils.
(3)
For all other surface water bodies, a riparian zone of 50 feet
wide shall be maintained along both sides of the water.
B. If a discernible bank is not present along a surface water body,
the portion of the riparian zone outside the surface water body is
measured landward as follows:
(1)
Along a linear fluvial or tidal water, such as a stream, the
riparian zone is measured landward of the feature's center line;
(2)
Along a nonlinear fluvial water, such as a lake or pond, the
riparian zone is measured landward of the normal water surface limit;
(3)
Along a nonlinear tidal water, such as a bay or inlet, the riparian
zone is 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 discernible channel, the
riparian zone is measured landward of the feature's center line.
C. The applicant or designated representative shall be responsible for
the initial determination of the presence of a riparian zone on a
site, and for identifying the area of the riparian zone on any plan
submitted to the Borough of Frenchtown in conjunction with an application
for a construction permit, subdivision, land development, or other
improvement that requires plan submissions or permits. This initial
determination shall be subject to review and approval by the municipal
engineer, governing body, or its appointed representative, and, where
required by state regulation, the New Jersey Department of Environmental
Protection.
[Ord. No. 719, 10-3-2012]
To the extent allowed by the Stormwater Management Rules (N.J.A.C.
7:8), the Flood Hazard Area Control Act Rules (N.J.A.C. 7:13), and
the Highlands Water Protection and Planning Act Rules (N.J.A.C. 7:38),
new disturbances for projects or activities in the riparian zone established
by this article may be allowed through the Zoning Board of Adjustment
review and approval of a variance, provided the disturbance is proposed
to be located on a preexisting lot (existing as of the effective date
of this article) when there is insufficient room outside the riparian
zone for the proposed use otherwise permitted by the underlying zoning;
there is no other reasonable or prudent alternative to placement in
the riparian zone, including obtaining variances from setback or other
requirements that would allow conformance with the riparian zone requirements;
and upon proof by virtue of submission of appropriate maps, drawings,
reports and testimony, that the disturbance is:
A. Necessary to protect public health, safety or welfare;
B. To provide an environmental benefit;
C. To prevent extraordinary hardship on the property owner peculiar
to the property; or
D. To prevent extraordinary hardship, provided the hardship was not
created by the property owner, by not allowing a minimum economically
viable use of the property based upon reasonable investment.
[Ord. No. 719, 10-3-2012]
To the extent allowed under the Stormwater Management Rules
(N.J.A.C. 7:8), the Flood Hazard Area Control Act Rules (N.J.A.C.
7:13), and the Highlands Water Protection and Planning Act Rules (N.J.A.C.
7:38) and subject to review and approval by the New Jersey Department
of Environmental Protection to the extent required by those rules,
the following disturbances for projects or activities in the riparian
zone established by this article are allowed:
A. Redevelopment within the limits of existing impervious surfaces;
B. Linear development with no feasible alternative route;
C. Disturbance that is in accordance with a stream corridor restoration
or stream bank stabilization plan or project approved by the New Jersey
Department of Environmental Protection;
D. Disturbance necessary to provide for public pedestrian access or
water-dependent recreation that meets the requirements of the Freshwater
Wetlands Protection Act rules, N.J.A.C. 7:7A, the Flood Hazard Area
Control Act rules, N.J.A.C. 7:13, or the Coastal Zone Management rules,
N.J.A.C. 7:7E; or
E. Disturbance with no feasible alternative required for the remediation
of hazardous substances performed with New Jersey Department of Environmental
Protection or federal oversight pursuant to the Spill Compensation
and Control Act, N.J.S.A. 58:10-23.11a et seq. or the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42
U.S.C. § 9601 et seq.
[Ord. No. 719, 10-3-2012]
A. Any party aggrieved by the location of the riparian zone boundary
determination under this article may appeal to the Zoning Officer
under the provisions of this article. The party contesting the location
of the riparian zone boundary shall have the burden of proof in case
of any such appeal.
B. Any party aggrieved by any determination or decision of the Zoning
Officer under this article may appeal to the Mayor and Common Council
of the Borough of Frenchtown. The party contesting the determination
or decision shall have the burden of proof in case of any such appeal.
C. Conflicts. All other ordinances, parts of ordinances, or other local
requirements that are inconsistent or in conflict with this article
are hereby superseded to the extent of any inconsistency or conflict,
and the provisions of this article shall apply.
D. Severability.
(1)
Interpretation. This article shall be so construed as not to
conflict with any provision of New Jersey or federal law.
(2)
Notwithstanding that any provision of this article is held to
be invalid or unconstitutional by a court of competent jurisdiction,
all remaining provisions of the article shall continue to be of full
force and effect.
(3)
The provisions of this article shall be cumulative with, and
not in substitution for, all other applicable zoning, planning and
land use regulations.
[Ord. No. 719, 10-3-2012]
A prompt investigation shall be made by the Code Enforcement
Office/Zoning Officer of the Borough of Frenchtown, of any person
or entity believed to be in violation hereof. If, upon inspection,
a condition which is in violation of this article is discovered, a
civil action in the Special Part of the Superior Court, or in the
Superior Court, if the primary relief sought is injunctive or if penalties
may exceed the jurisdictional limit of the Special Civil Part, by
the filing and serving of appropriate process. Nothing in this article
shall be construed to preclude the right of Borough of Frenchtown,
pursuant to N.J.S.A. 26:3A2-25, to initiate legal proceedings hereunder
in Municipal Court. The violation of any section or subsection of
this article shall constitute a separate and distinct offense independent
of the violation of any other section or subsection, or of any order
issued pursuant to this article. Each day a violation continues shall
be considered a separate offense.
[Ord. No. 719, 10-3-2012]
The enumeration of the separate provisions of this article may
be changed to accommodate codification of the provisions of this adopted
ordinance into the Borough's Land Use Ordinance.
[Ord. No. 719, 10-3-2012]
This article shall take effect upon final adoption and publication
in accordance with the law on the date it is filed with the County
Planning Board after adoption.