East Brunswick City Zoning Code
ARTICLE XXXVI
Riparian Zone Regulations
§ 228-294 Intent and purpose.
The governing body of East Brunswick Township finds that riparian 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 riparian areas by implementing specifications for the establishment, protection, and maintenance of vegetation along the surface water bodies within East Brunswick Township, consistent with the interest of landowners in making reasonable economic use of parcels of land that include such designated areas.
The specific purposes and intent of this Ordinance are to:
A.
Restore and maintain the chemical, physical, and biological integrity of the Township's water resources;
B.
Prevent excessive nutrients, sediment, and organic matter, as well as biocides and other pollutants, from reaching surface waters by optimizing opportunities for filtration, deposition, absorption, adsorption, plant uptake, biodegradation, and denitrification, which occur when stormwater runoff is conveyed through vegetated buffers as stable, distributed flow prior to reaching receiving waters;
C.
Provide for shading of the aquatic environment so as to moderate temperatures, retain more dissolved oxygen, and support a healthy assemblage of aquatic flora and fauna;
D.
Provide for the availability of natural organic matter (leaves and twigs) and large woody debris (trees and limbs) that provide food and habitat for aquatic organisms (insects, amphibians, crustaceans, and small fish), which are essential to maintain the food chain;
E.
Increase stream bank stability and maintain natural fluvial geomorphology of the stream system, thereby reducing stream bank erosion and sedimentation and protecting habitat for aquatic organisms;
F.
Maintain base flows in streams and moisture in wetlands;
G.
Control downstream flooding; and
H.
Conserve the natural features important to land and water resources, e.g., headwater areas, ground water recharge zones, floodways, floodplains, springs, streams, wetlands, woodlands, and prime wildlife habitats.
§ 228-295 Statutory authority.
East Brunswick Township is empowered to regulate land uses under the provisions of the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., which authorizes each municipality to plan and regulate land use in order to protect public health, safety and welfare by protecting and maintaining native vegetation in riparian areas. The Township is also empowered to adopt and implement this Ordinance under provisions provided by the following legislative authorities of the State of New Jersey:
Water Pollution Control Act, N.J.S.A. 58:10A 1 et seq.
Water Quality Planning Act, N.J.S.A. 58:11A 1 et seq.
Spill Compensation and Control Act, N.J.S.A. 58:10 23 et seq.
Soil Erosion and Sediment Control Act, N.J.S.A. 4:24 39 et seq.
Flood Hazard Area Control Act, N.J.S.A. 58:16A 50 et seq.
§ 228-296 Definitions.
All definitions in New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-3, Town Code 132-3 and Town Code 228-3 shall also apply to this Ordinance. Certain words and terms in this chapter are defined for the purpose thereof as follows:
Soils that contain geologic deposits of iron sulfide materials (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.
A person, corporation, government body or other legal entity applying to the Planning Board, Board of Adjustment or the Construction Office proposing to engage in an activity that is regulated by the provisions of this ordinance, and that would be located in whole or in part within a regulated Riparian Zone.
Shall have the meaning ascribed to this term by the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq., and regulations promulgated thereunder published at N.J.A.C. 7:13 et seq., and any supplementary or successor legislation and regulations from time to time enacted or promulgated.
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.
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.
Developments that are constructed in a linear fashion across the landscape; i.e., power lines, roads, railways, pipelines (gas, oil), telecommunications infrastructure and man-made waterways. Linear development is often consequential to other forms of commercial and industrial development.
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.
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.
A plan prepared by a professional engineer or a registered landscape architect which evaluates the effects of proposed activity/uses on a designated riparian zone. The plan shall include an identification of existing conditions, all proposed activities and all proposed management techniques, including any measures necessary to offset disturbance to any affected riparian zone and shall be prepared in accordance with the Township's adopted performance standards for riparian zones.
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.
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.
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.
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.
§ 228-297 Establishment of Riparian Zones.
A.
Riparian zones adjacent to all surface water bodies shall be protected from avoidable disturbance and shall be delineated as follows:
B.
The designated riparian zone as defined above shall be based on New Jersey Department of Environmental Protection GIS digital data and include all land and water bodies within its boundaries. The official mapping of the designated riparian zone areas within East Brunswick Township shall be on file in the Department of Planning and Engineering.
C.
The portion of the riparian zone that lies outside of a surface water body is measured landward from the top of bank. 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 or swale, the riparian zone is measured landward of the feature's centerline;
2.
Along a non linear fluvial water, such as a lake or pond, the riparian zone is measured landward of the normal water surface limit;
3.
Along a non linear 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 definable channel, the riparian zone is measured landward of the feature's centerline.
D.
A riparian zone is an overlay to the existing zoning district. The provisions of the underlying district shall remain in full force except where the provisions of the riparian zone differ from the provisions of the underlying district, in which case the provision that is more restrictive shall apply. These provisions apply to land disturbances resulting from or related to any activity or use requiring application for any of the following permits or approvals:
Building permit
Bulk variance/use variance
Conditional Use
Subdivision/site plan approval
E.
Activity within the riparian zone shall be exempt from the riparian zone protection requirements provided compliance with one of the following is demonstrated:
1.
The proposed disturbance in a riparian zone is for a linear development with no feasible alternative route;
2.
The proposed disturbance in a riparian zone is in accordance with a stream corridor restoration or stream bank stabilization plan or project approved by the New Jersey Department of Environmental Protection;
3.
The proposed disturbance of a riparian zone is 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;
4.
The proposed disturbance of a riparian zone is 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.;
5.
The proposed disturbance is for redevelopment that does not exceed the limits of existing impervious surfaces;
§ 228-298 Uses permitted in Riparian Zones.
A.
Property located within a designated riparian zone shall remain in a natural condition or, if in a disturbed condition, including agricultural activities, at the time of adoption of this ordinance may be restored to a natural condition. There shall be no clearing or cutting of trees and brush, except for removal of dead vegetation and pruning for reasons of public safety or for the replacement of invasive species with indigenous species. There shall be no altering of watercourses, dumping of trash, soil, dirt, fill, vegetative or other debris, regrading or construction.
B.
The following uses are permitted either by right or after review and approval by the municipality in riparian zones. No new construction, development, use, activity, encroachment, or structure shall take place in a riparian zone, except as specifically authorized in this Section. The following uses shall be permitted within a riparian zone:
1.
Open space uses that are primarily passive in character shall be permitted by right to extend into a riparian zone, provided near stream vegetation is preserved. Such uses include wildlife sanctuaries, nature preserves, forest preserves, fishing areas, game farms, fish hatcheries and fishing reserves, operated for the protection and propagation of wildlife, but excluding structures. Such uses also include passive recreation areas of public and private parklands, including unpaved hiking, bicycle and bridle trails, provided that said trail have been stabilized with pervious materials;
2.
Fences installed in compliance with applicable Township Code requirements;
3.
Crossings by farm vehicles and livestock, recreational trails, roads, railroads, storm water lines, sanitary sewer lines, water lines and public utility transmission lines, provided that the land disturbance is the minimum required to accomplish the permitted use, any applicable State permits are acquired, and any disturbance is offset by buffer improvements in compliance with a Riparian Zone Management Plan approved by the Township Engineer and that the area of the crossing is stabilized against significant erosion due to its use as a crossing;
4.
Stream bank stabilization or riparian reforestation, which conform to the guidelines of a Riparian Zone Management Plan approved by the Township Engineer;
5.
Wetlands mitigation projects that have been approved by the New Jersey Department of Environmental Protection, subject to compliance with a Riparian Zone Management Plan approved by the Township Engineer.
§ 228-299 Performance standards for Riparian Zones.
The following conditions shall apply to land situated within a designated riparian zone:
A.
All major and minor subdivisions and site plans shall be designed to provide sufficient areas outside of the riparian zone to accommodate principal structures, any normal accessory structures/uses appurtenant thereto, as well as lawn areas.
B.
Portions of lots within the riparian zone shall be permanently restricted by deed or conservation easement held by East Brunswick Township to provide adequate protection to prevent adverse impacts within the riparian zone. A complete copy of the recorded conservation restriction that clearly identifies the deed book and pages where it has been recorded in the office of the Middlesex County Clerk or the registrar of deeds and mortgages of Middlesex County must be submitted to the municipality. The recorded conservation restriction shall be in the form approved by the municipality and shall run with the land and be binding upon the property owner and the successors in interest in the property or in any part thereof. The conservation restriction may include language reserving the right to make de minimus changes to accommodate necessary regulatory approvals upon the written consent of the municipality, provided such changes are otherwise consistent with the purpose and intent of the conservation restriction.
C.
Any lands proposed for development which include all or a portion of a riparian zone shall as a condition of any major subdivision or major site plan approval, provide for the vegetation or revegetation of any portions of the riparian zone which are not vegetated at the time of the application or which were disturbed by prior land uses, including for agricultural use. Said vegetation plan shall utilize native and non-invasive tree and plant species to the maximum extent practicable in accordance with an approved Riparian Zone Management Plan.
D.
All stormwater shall be discharged outside of but may flow through a riparian zone and shall comply with the Standard For Off Site Stability in the "Standards for Soil Erosion and Sediment Control in New Jersey", established under the Soil Erosion and Sediment Control Act, N.J.S.A. 4:24-39 et seq. (see N.J.A.C. 2:90-1.3.) If stormwater discharged outside of and flowing through a riparian zone cannot comply with the Standard for Off-Site Stability, then the proposed stabilization measures must meet the requirements of the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-10.2 et seq., and have an approved flood hazard area permit.
§ 228-300 Existing structures and uses in Riparian Zones.
Structures and uses of land within the riparian zone which were in existence prior to the effective date of these regulations are subject to the following requirements:
A.
Legally existing but noncompliant structures or uses may be continued.
B.
Encroachment within the riparian zone shall only be allowed where previous development or disturbance has occurred and shall be in conformance with the Stormwater Management rules, N.J.A.C. 7:8, and the Flood Hazard Area Control Act rules, N.J.A.C. 7:13.
C.
Existing impervious cover shall not be increased within the riparian zone as a result of encroachments where previous development or disturbances have occurred.
§ 228-301 Uses prohibited in Riparian Zones.
A.
Any use or activity not specifically authorized by the Riparian Zone Ordinance;
B.
Removal or clear-cutting of trees and other vegetation or soil disturbance such as grading, except for selective vegetation removal for the purpose of stream or riparian area stabilization or restoration projects that require vegetation removal or grading prior to implementation;
C.
Storage of any hazardous or noxious materials;
D.
Use of fertilizers, pesticides, herbicides, and/or other chemicals in excess of prescribed industry standards or the recommendations of the Soil Conservation District;
E.
Roads or driveways, except where permitted as permitted by this Ordinance;
F.
Motor or wheeled vehicle traffic in any area, except as permitted by this Ordinance;
G.
Parking lots;
H.
New subsurface sewage disposal system areas. The expansion and replacement of existing subsurface sewage disposal system areas for existing uses is permitted;
I.
Residential grounds or lawns, except as otherwise permitted pursuant to this Ordinance.
§ 228-302 Riparian Zone Management Plan.
A.
A Riparian Zone Management Plan shall accompany all requests for bulk variance relief from the provisions of the Riparian Zone Ordinance. A Riparian Zone Management Plan is not required where the riparian zone is not being disturbed and conservation easements/deed restrictions are applied to ensure there will be no future clearing or disturbance of the riparian zone.
B.
The applicant shall submit to the Approving Authority a Riparian Zone Management Plan prepared by a Professional Engineer or Registered Landscape Architect which fully evaluates the effects of any proposed uses on the riparian zone. The Riparian Zone Management Plan shall include data on the following:
1.
Existing vegetation;
2.
Field delineated surface water bodies;
3.
Field delineated wetlands;
4.
The 100 year floodplain;
5.
Flood Hazard Areas, including floodway and flood fringe areas, as delineated by the New Jersey Department of Environmental Protection;
6.
Soil classifications as found on Soil Surveys;
7.
Existing subdrainage areas on site with HUC (Hydrologic Unit Code) 14 designations;
8.
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%.
9.
Description of all proposed uses/activities, and full evaluation of the effects of all proposed uses/activities in the riparian zone;
10.
Management provisions in narrative and/or graphic form specifying:
(a)
The manner in which the area within the riparian zone will be owned and by whom it will be managed and maintained.
(b)
The conservation and/or land management techniques and practices that will be used to conserve and protect the riparian zone, as applicable.
(c)
The professional and personnel resources that are expected to be necessary, in order to maintain and manage the riparian zone.
(d)
A revegetation plan, if applicable, that includes: three layers of vegetation, including herbaceous plants that serve as ground cover, understory shrubs, and trees that when fully mature, will form an overhead canopy. Vegetation selected must be native, non invasive species, and consistent with the soil, slope and moisture conditions of the site. Dominant vegetation in the Riparian Zone Management Plan shall consist of plant species that are suited to the riparian zone environment.
§ 228-303 Conflicts.
All other ordinances, parts of ordinances, or other local requirements that are inconsistent or in conflict with this ordinance are hereby superseded to the extent of any inconsistency or conflict, and the provisions of this ordinance apply.
§ 228-304 Severability.
This Ordinance shall be so construed as not to conflict with any provision of New Jersey or Federal law. Notwithstanding that any provision of this Ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction, all remaining provisions of the Ordinance shall continue to be of full force and effect. The provisions of this Ordinance shall be cumulative with, and not in substitution for, all other applicable zoning, planning and land use regulations.
Editor's Note: The Zoning Map is included at the end of this chapter