Pohatcong Township City Zoning Code
ARTICLE VIII
Highlands Municipal Referral and Land Use Capability Zone Ordinance for the Planning and Preservation Areas
§ 285-43 Establishment of Highlands Districts.
A.
Highlands Preservation Area and Planning Area. The Highlands Act[1] establishes the Preservation Area and Planning Area of the Highlands Region. Each of these is incorporated into the land use plan of the Highlands component of the municipal Master Plan.
(1)
The Preservation Area, to the full extent of its limits within the Township, is herewith adopted and established as an overlay to municipal zoning.
(2)
The Planning Area, to the full extent of its limits within the Township, is herewith adopted and established as an overlay to municipal zoning.
[1]
Editor's Note: See N.J.S.A. 13:20-1 et seq.
B.
Highlands zones. The Highlands RMP establishes the Protection Zone, Conservation Zone, and Existing Community Zone, including within each, various subzones, each with its own purpose, application, and development criteria. The Highlands zones are intended to ensure that the density and intensity of future development and redevelopment do not exceed the capacity of the land, natural resources and existing infrastructure to support them. The Township Master Plan incorporates the Highlands zones as an integral component of the planning and land use policies of the municipality. Accordingly, the Highlands zones and subzones, specifically including for purposes of this article, all Environmentally Constrained subzones are adopted herewith and established as an overlay to municipal zoning.
C.
Highlands Center. The Township of Pohatcong's Highlands Center is a special district designated by the Highlands Council that occupies the northerly portion of the municipality's Planning Area. Excluded from Highlands zones and subzones, the Highlands Center has its own purpose and development goals and intents, as discussed in both the Highlands Council's approval of the Township petition for plan conformance and Pohatcong's follow-up 2013 Township Master Plan Reexamination Report. Accordingly, the Highlands Center is adopted herewith and established as an overlay to municipal zoning. The Highlands Center will be the subject of ongoing planning initiatives as a component of the Township of Pohatcong Master Plan.
D.
Highlands Districts Map. The Highlands Preservation Area, Planning Area, Highlands zones, and designated Highlands Center are each hereby adopted as an overlay to the municipal Zoning Map. Highlands Districts are as indicated by the locations and boundaries designated for each respectively, in Exhibit 1[2] entitled "Township of Pohatcong Highlands Districts," dated July 2020, which is hereby declared to be a part of this Highlands Ordinance.
[2]
Editor's Note: Exhibit 1 is included as an attachment to this chapter.
§ 285-44 Applicability.
A.
This article shall apply to any application for development that seeks approval of a site plan, subdivision, or change in use, where approval of such application would:
(1)
For residential development, create three or more dwelling units;
(2)
For nonresidential development:
(a)
Result in the ultimate disturbance of one acre or more of land;
(b)
Produce a cumulative impervious surface area of 1/4 acre, or more; or
(c)
Introduce or expand on any of the following land uses/facilities:
[1]
Landfills;
[2]
Permanent storage or disposal of hazardous wastes, industrial or municipal sludge or radioactive materials, including solid waste landfills;
[3]
Collection and transfer facilities for hazardous wastes, solid wastes that contain hazardous materials, and radioactive materials;
[4]
Industrial treatment facility lagoons; or
[5]
Any major or minor potential contaminant source (as identified in Appendix A and Appendix B[1] of this article, respectively) on lands located within 200 feet of the wellhead of any public community well or public non-community well, as these are defined at § 285-48 below.
[1]
Editor's Note: Appendixes A and B are included as attachments to this chapter.
B.
All thresholds in Subsection A(1) and (2), above, shall be interpreted to apply cumulatively over time, beginning as of the effective date of this article. If or when any one of the thresholds is reached, the article shall apply to any and all development in excess of that threshold. Where an application proposes a mixed use, the thresholds in Subsection A(2), for nonresidential development shall apply to the whole of the project, while that in Subsection A(1) shall apply to the residential component. For purposes of this article, the phrases "application for development," "residential development," "ultimate disturbance," and "cumulative impervious surface area" shall be defined as provided at § 285-48 below.
§ 285-45 Exclusions and exemptions.
A.
Exclusions. The following specific improvements and related applications shall be excluded from the provisions of this article:
(1)
The reconstruction, within the same footprint, of any building or other structure lawfully existing as of the effective date of this article, in the event of its destruction or partial destruction by fire, storm, natural disaster, or any other unintended circumstance.
(2)
Any improvement or alteration to a building or other structure lawfully existing as of the effective date of this article, where such improvement or alteration is necessary for compliance with the provisions of the Americans with Disabilities Act,[1] or to otherwise provide accessibility to the disabled.
[1]
Editor's Note: See 42 U.S.C.A. § 12101 et seq.
(3)
Any agricultural or horticultural use or development that would not result in either:
(a)
An increase, since the date of enactment of the Highlands Act[2] (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 § 285-48, below); or
[2]
Editor's Note: See N.J.S.A. 13:20-1 et seq.
(b)
Construction of three or more residential dwelling units (including accessory dwelling units) served by individual on-site septic system(s).
B.
Exemptions. Any activity, improvement or development project listed and demonstrated to constitute a Highlands Act exemption shall be exempt from the provisions of this article. Formal demonstration of a Highlands Act exemption for an application for development shall consist of one of the following:
(1)
State agency determination. State agency determinations shall include either, a Highlands applicability determination (HAD) issued by the NJDEP for a Preservation Area proposal, or a Highlands exemption determination issued by the Highlands Council for a Planning Area proposal, in either case, indicating that the proposal qualifies as a Highlands Act exemption.
(2)
Municipal determination. Pursuant to Township Ordinance No. 16-02,[3] entitled "Highlands Act Exemption Determinations," adopted on February 2, 2016, for any application under this article involving Highlands Act exemptions Nos. 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 Highlands exemption determination issued by the Highlands Council, or of a HAD issued by the NJDEP.
§ 285-46 Highlands Council referral requirements.
A.
Consistency determinations required. No application for development included in § 285-44 above, shall be deemed complete or considered for review by the applicable Township land use board until and unless the applicant has obtained and provided a copy of:
(1)
A consistency determination from the Highlands Council indicating that the application is consistent with the Highlands Regional Master Plan and with the Highlands Council Resolution (No. 2011-23) granting approval of the municipality's petition for plan conformance; or
(2)
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 Subsection B below, by the applicant's professional(s) that the application has been revised since review by the Highlands Council to achieve consistency with the Highlands Regional Master Plan and Highlands Council Resolution (No. 2011-23) granting approval of the municipality's petition for plan conformance.
B.
Findings of inconsistency. Where a Highlands Council consistency determination indicates that an application for development is inconsistent with the Highlands Regional Master Plan or the Highlands Council Resolution (No. 2011-23) granting approval of the municipality's petition for plan conformance, no such application shall be deemed complete or considered for review by the applicable Township 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 been revised to achieve consistency with the Highlands Regional Master Plan and the Highlands Council Resolution (No. 2011-23) granting approval of the municipality's petition for plan conformance, and specifically describing the revisions made to achieve such consistency.
C.
Referral waiver. The Township may issue a waiver from the provisions of this section where it can be established by the applicant and can be verified by the designated representative(s) of the Township that:
(1)
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 § 285-44B, above), but eligibility for an exemption has been sufficiently established by the applicant; or
(2)
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.
D.
Highlands Council call-up. All municipal waivers or findings of application completeness issued pursuant to this section 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 subsection. 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.
§ 285-47 Highlands regulations.
A.
Septic system density.
(1)
Preservation area. Development proposals involving new or increased demand for septic system capacity in the Preservation Area shall be regulated in accordance with NJDEP Highlands Rules (N.J.A.C. 7:38). Nothing herein shall be deemed to apply to the replacement or repair of an existing septic system.
(2)
Planning area. All development proposing new or increased demand for septic system capacity in the Planning Area shall be regulated in accordance with this subsection. The following are gross septic density requirements and shall not modify any minimum lot size requirements contained in the Township Land Development Ordinance. Every development shall provide for a minimum acreage for each dwelling unit (or equivalent) as noted below. Nothing herein shall be deemed to apply to the replacement or repair of an existing septic system, however.
(b)
These allowances indicate the minimum acreage required per septic system, where that system is designed for a one-family household generating a maximum flow of 300 gallons of wastewater per day. The resulting acreage shall be applied as the minimum average acreage necessary to support every 300 gallons of daily wastewater flow generated by any proposed use where the unit/square footage figures below shall be applied as 300 gallon-per-day equivalents.
(c)
Equivalent yields. The following unit/square footage figures shall be applied as 300 gallon-per-day equivalents:
[1]
Residential uses (all types, except as provided below): one dwelling unit.
[2]
Deed-restricted senior citizen residential units, or mobile home parks with dwelling units less than 500 square feet in size: 1.5 dwelling units.
[3]
Office and commercial uses: 2,400 square feet of floor area.
[4]
Industrial (including warehousing/distribution) uses: 18,182 square feet of floor area (excluding process wastewater flow).
[5]
Specific nonresidential uses by facility type: In lieu of Subsection A(2)(c)[3] or [4] above, 300 gallon-per-day equivalents may be computed based on the average sewage volumes provided in N.J.A.C. 7:9A-7.4.
B.
Water and wastewater infrastructure.
(1)
Preservation area. New, expanded or extended public water systems, wastewater collection and treatment systems, and community on-site treatment facilities are prohibited unless approved through issuance of either a Highlands applicability determination indicating that a project is exempt from the Highlands Act, or a Highlands Preservation Area approval with waiver pursuant to N.J.A.C. 7:38.
(2)
Planning Area - Protection Zone, Conservation Zone and Environmentally Constrained Subzones. New, expanded or extended public water systems, wastewater collection and treatment systems, and community on-site treatment facilities are prohibited.
(3)
Planning Area - existing Community Zone (excluding Environmentally Constrained Subzone). Expansion or creation of public water systems, wastewater collection and treatment systems, and community on-site treatment facilities are permitted.
§ 285-48 Definitions.
For the purpose of this article, the following terms, phrases, words, and their derivations shall have the meanings stated herein unless their use in the text of this article 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.
Agricultural or horticultural buildings, structures or facilities with or without flooring, residential buildings and paved areas, but not meaning temporary coverings.
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.
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.
A developer submitting an 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 (N.J.S.A. 40:55D-34 or N.J.S.A. 40:55D-36).
The placement of impervious surface, the exposure or movement of soil or bedrock, or the clearing, cutting, or removing of vegetation.
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.
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.
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.
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.
The New Jersey Highlands Water Protection and Planning Council.
All that area within the boundaries of the municipalities listed in Subsection a of Section 7 of the Highlands Act.
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.
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.
Land uses and activities determined by the Highlands Council to pose a major risk of groundwater contamination (see Appendix A).[1]
Land uses and activities determined by the Highlands Council to pose a minor risk of groundwater contamination (see Appendix B).[2]
The New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.
New Jersey Department of Environmental Protection.
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.
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 procedures.
Lands within the Highlands Region not within the Preservation Area (N.J.S.A. 13:20-7).
That portion of the Highlands Region so designated by Subsection b of Section 7 of the Highlands Act.
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.
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.
The Highlands Regional Master Plan or any revision thereof adopted by the Highlands Council pursuant to N.J.S.A. 13:20-8.
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.)
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.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
[2]
Editor's Note: Appendix B is included as an attachment to this chapter.
§ 285-49 Validity.
If any portion, paragraph, clause, sentence or phrase of this article is determined to be invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining portions of this article.
§ 285-50 Repealer.
A.
All ordinances or parts thereof inconsistent herewith are hereby repealed to the extent of such inconsistency only.
B.
Upon the effective date of this article, Township Ordinance No. 15-12, the Highlands Checklist Ordinance, applicable to development application submission requirements for projects in the Highlands Preservation Area, is hereby repealed. This Article replaces it in its entirety.
§ 285-51 When effective.
This article shall take effect 20 days upon passage and publication as required by law.