Borough of Caldwell, NJ Sewer Connection Ban

The following exemption criteria are adopted in order to provide relief to persons or entities who suffer substantial and irreparable harm due to this ban or where there is a compelling public need for a proposed facility. The burden of proof is upon the applicant in all exemption requests under this section.

(1)

The Sewage Authority shall presume that all applicants have knowledge of the sewer connection ban after the effective date of the sewer connection ban.

(2)

No exemption shall be granted to any party who subsequently proceeds with a proposed project and thereby increases or creates the hardship which is the basis for the requested exemption.

(3)

An applicant for an exemption shall submit a plan to the Sewage Authority for water conservation plumbing, and the implementation of such a plan, as approved by the Department, shall be condition of the exemption.

An applicant for an exemption must prove to the satisfaction of the Sewage Authority and the Department that it meets any of the following criteria:

(1)

If the municipality, prior to November 3, 1986, has issued a building permit or preliminary or final subdivision approval, provided that construction of improvements has taken place, the remaining construction covered by such permit or approval may be eligible for an exemption.

(a)

The applicant must show that, in good faith reliance upon the permit or approval, substantial expenditures have been made by the applicant for physical improvements to the property prior to the effective date of the ban.

[1]

The payment of taxes, the purchase price, expenditures for preparation of engineering and architectural plans and for legal fees and other costs not expended for physical improvements to the land shall be ineligible for consideration in determination of substantial expenditures.

[2]

All claims for eligible expenditures shall be accompanied by certified true copies of contracts, receipts or invoices. An unverified list of expenses will fail to establish substantial expenditures.

(b)

For the purposes of these regulations, "substantial expenditures" shall mean those eligible costs in excess of:

[1]

Twenty-five percent of the cost of those projects whose total cost is less than $100,000.

[2]

Twenty-five thousand dollars plus 10% of the costs in excess of $100,000 for those projects whose total cost is less than $10,000,000 but more than $100,001.

[3]

One million fifteen thousand dollars plus 5% of the project costs in excess of $10,000,000 for those projects whose total cost exceeds this amount.

[4]

In addition, the applicant shall submit an estimate of the total cost with a certification that the estimate is true and accurate.

(2)

If an existing building or group of buildings constructed prior to the effective date of the sewer connection ban with individual subsurface disposal system(s) is certified by the local health authorities and proven to the satisfaction of the Department to be presently creating a health hazard due to overflow, contamination of the waters of the state or other malfunction and the system cannot be reasonably rehabilitated, an exemption may be granted.

(3)

If the application for the exemption is a request to allow the connection of a proposed project, which is publicly owned or operated, including but not limited to: a long term health care facility which has received a certification of need from the New Jersey Department of Health, a school, hospital, fire or police station or senior citizen housing, an exemption may be granted by the Department, if in the Department's opinion there exists a sufficient public need for the proposed project and there are no other reasonable alternatives available, including alternative sites.

(4)

If the proposed project will replace a building, structure or unit with an existing sewer connection, the proposed project is exempt only if the building, structure or unit with the existing connection was in use at the time the sewer connection ban was implemented and if the proposed project will create flow equal to or less than the flow of the former building, structure or unit and the proposed project will be at the same location as the existing building, structure or unit.

(5)

If the proposed connection is for a groundwater remedial action that was approved by the Department prior to the effective date of the sewer connection ban.

(6)

If the proposed project will have a total design flow, using Department criteria in N.J.A.C. 7:9-1 et seq., of less than 400 gallons per day ("GPD") and will be constructed and/or operated on a tax lot that was in existence prior to the effective date of the ban.

(7)

An exemption may be approved for the construction of publicly assisted housing owned or operated by nonprofit organizations incorporated pursuant to N.J.S.A. 55:14I-1 et seq. for the purpose of providing housing that is designed to be occupied exclusively by low income senior citizens and which provides for occupancy by the handicapped. For the purpose of these regulations "publicly assisted" shall mean that:

(a)

The project is to be built with funds provided pursuant to Section 202 of the Federal Housing Act, 12 U.S.C.A. 1701q; and

(b)

The monthly rents are to be subsidized by funds provided pursuant to Section 8 of the United States Housing Act of 1937, 42 U.S.C.A. 1437.

(8)

If the applicant has completed a departmentally approved program of inflow and infiltration removal prior to the effective date of this ban, an exemption may be granted for an amount of gallonage equal to that amount allocated and authorized by the Department and the Sewage Authority to be introduced into the system.

(9)

An exemption may be granted for a specific project when it has been demonstrated that substantial improvement in effluent quality through a reduction in actual flow or other measures has occurred. In addition to other requirements to obtain an exemption set forth in this article and Department of Environmental Protection and Energy regulations, the applicant for an exemption under this subsection must bear the burden of proof and demonstrate the following:

[Amended 3-10-1992 by Ord. No. 925-92]

(a)

Adequate capacity and effluent quality exists in the system to accommodate the proposed flow.

(b)

There exists an approved development application as defined in the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., (e.g., subdivision, site plan, variance) or, in applications dealing with one- or two-family dwellings, an approved building plan, which in either event must be approved based on a proposed connection to the sewerage treatment system as opposed to other methods of disposal.

Exemption application procedure. The Sewage Authority and applicants for a sewer connection ban exemption shall comply with the requirements of N.J.A.C. 7:14A-12.23. In addition, the following standards and procedures shall apply to applications for exemptions:

[Amended 3-10-1992 by Ord. No. 925-92]

(1)

All applicants for exemptions shall submit an original exemption request form and 13 copies of the exemption request form; written explanation of the reasons and basis for the exemption request; a written description of the proposed use, calculation of design flow, gross square footage of buildings, if nonresidential, and number of dwelling units, if residential; approved development or building plans; the resolution of approval of the development application from the Planning Board or Zoning Board of Adjustment or proof the plans have been approved by the Construction Official when no development application pursuant to the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) is involved; and any other documentation in support of the application for the exemption. Submission shall be made to the Borough Clerk along with an application fee in the amount of $200 for the first equivalent connection and $25 for each additional equivalent connection or part thereof.

[Amended 3-8-1994 by Ord. No. 970-94]

(2)

The Sewer Committee of the Borough of Caldwell shall review the submissions within 60 days of the date of their submission and advise the applicant, in writing, if the application is incomplete, is recommended for approval or is recommended for denial.

(3)

In the event of a recommendation for approval, the matter shall be referred to the governing body for final action.

(4)

In the event of a recommendation for denial, the applicant shall have 20 days from the date notice of the recommendation is mailed to the applicant to requesting, in writing, through the Borough Clerk, a hearing on the matter before the governing body. Along with such request, the applicant shall submit a fee in the amount of required by Chapter A270, Fees, to cover the cost of the hearing, together with four additional copies of the documents submitted in connection with the application. The governing body shall conduct a hearing on the request and reach a final decision. In the event that the applicant does not request a hearing, the recommendation of the Committee shall be presented to the governing body for final action without a hearing.

[Amended 7-13-1999 by Ord. No. 1073-99]

(5)

Prior to the municipality making any endorsement of an exemption application to the state, and as a condition of any local authorization for an exemption, the applicant shall pay to the Borough a connection fee in the amount required by Chapter A270, Fees, per equivalent connection for any new or increased capacity connection to the sewerage treatment system. This connection fee shall be made in place of any other connection fee required to be paid to Caldwell.

[Amended 7-13-1999 by Ord. No. 1073-99]

(6)

In the event that the Department of Environmental Protection and Energy rejects the application for exemption, the connection fee shall serve to reserve capacity for the project and property for which Caldwell endorsed approval; provided, however, that the applicant may withdraw its application for exemption and release its capacity reservation upon written notice to the municipality within 30 days of final Department of Environmental Protection and Energy disapproval of the application of exemption or six months following the date of the municipal resolution authorizing the endorsement of the application, whichever first occurs, and upon such written notice the connection fee theretofore paid shall be refunded. Any applicant may request a reasonable extension of time in connection with the above-stated time limitations, for good cause, which may be granted by the governing body, provided that the request for an extension of time is submitted prior to the time limits provided in this subsection. Caldwell shall maintain a priority list of those projects for which capacity has been reserved in order of date of approval of an endorsement resolution issued by Caldwell. In the event that an application is not approved by the Department of Environmental Protection and Energy, and is not withdrawn, upon the creation or existence of additional capacity in the system, such increased capacity shall be allocated to those projects and property on the list in order of priority.

[Amended 5-12-1992 by Ord. No. 927-92; 3-23-1993 by Ord. No. 953-93]

(7)

In the event of a change in the project on the property for which capacity has been reserved, no new capacity reservation or connection fee shall be charged except for any proposed increased flow, but a change in the project affecting the design flow of the project requiring a revised application for approval of the development of the Planning Board, Zoning Board of Adjustment or Construction Official, as the case may be, shall cause the project to lose its relative position on the priority list and require a new date of endorsement.

[Amended 5-12-1992 by Ord. No. 927-92]

(8)

An equivalent connection for purposes of this article shall be a use with a design flow of 100,000 gallons per year. Each and every dwelling unit, whether it be attached or detached housing, shall be considered as one equivalent connection regardless of its computed design flow. In all other cases the amount of gallonage shall be calculated by using the design flow criteria established by the Department of Environmental Protection and Energy in N.J.A.C. 7:9-1 et seq. In determining the number of equivalent connections for the purpose of computing the connection fee, the number of computed equivalent connections shall be rounded to the next highest 1/4.

(9)

Applicants who have reserved capacity on the priority list shall not be permitted to continue to reserve the capacity without making a connection within a reasonable time, as the reservation will prevent others from connecting to the sewer system who would be otherwise able to do so. As a result, once the protection and vested rights under the Municipal Land Use Law granted in connection with any application for development terminate, the applicant's project shall be removed from the priority list and the capacity lost. The removal from the priority list and the loss of capacity shall also apply to those projects on the list which are not the subject of development applications under the Municipal Land Use Law in the event that building permits are not taken out and the connection made within two years of the date of approval of the connection by the Department of Environmental Protection and Energy. Any applicant may request a reasonable extension of time based on hardship which may be granted by the governing body, provided that the request for an extension of time is submitted prior to the time limits provided in this subsection. In the event that a project is removed from the priority list and capacity lost, upon reapplication for an exemption for the same or a different project on the same property, a credit shall be given to the applicant toward any then-computed connection fee equal to the amount of connection fee paid in connection with the prior application.