Freshwater Wetlands Act
Excepts from Freshwater
Wetlands Protection in New Jersey
A Manual for Local Officials (ANJEC, 2004)
Despite
Municipalities, with their
land use responsibility, are in an excellent position to help reduce the loss
of wetlands. Municipal officials can use their land use control powers as
defined by the 1975 Municipal Land Use Law (NJ.S.A. 40:55D‑1 et. seq.) in
conjunction with land use and zoning regulations to provide wetlands protection.
This chapter outlines ways
municipalities can use the local land use planning and development review
process to protect wetlands, including ordinance checklists and other local
regulatory options. It also offers suggestions for coordinating the local and
state review processes.
LAND USE IN NEW
Since
The Municipal Land Use Law (MLUL)
delegates control of land use in
Although the state wetlands law
preempts municipalities from regulating wetlands, it does not supersede the
provisions of the MLUL requiring municipalities to designate appropriate uses
and densities for land.
WETLANDS, THE MUNICIPAL
ENVIRONMENTAL RESOURCE INVENTORY, MASTER PLAN AND ZONING
The municipal master plan should
provide a sound basis for zoning and the zoning ordinance. The MLUL charges
planning boards with the job of preparing, adopting, and/or amending master
plans to determine appropriate uses for lands in the municipality.
A master plan's land use element
identifies appropriate areas for development as well as for protection based on
the physical character of the municipality. An environmental resource or natural resource inventory can be a
source document for the master plan or can be adopted as part of it. The
inventory identifies soils, geology, topography, forests, rivers, wetlands,
floodplains, and other physical characteristics that the municipality should
consider in its land use planning and decision making. It also serves as the
basis for a conservation element, which uses the town’s physical character to
develop goals and strategies for preservation and conservation of natural
resources. Much of this information is
available from DEP as downloads from www. dep.state.nj/gis which include:
wetlands,
floodprone areas, topography, soils, contaminated sites, recharge soils,
topography and landscape area classes from the Landscape Project which
identifies habitat classes for potential location of rare species in
With
information on hydric and poorly drained soils shown on the County Soil Survey
maps, or state freshwater wetlands maps, the environmental resource inventory
and the master plan’s land use maps can show generally where wetlands are located
and designate uses for them consistent with their environmental sensitivity.
Conservation elements and greenways, stream corridors, or open space plans can
also identify wetlands and suggest strategies for their protection..
Once the planning board has
adopted a master plan land use element, the MLUL gives the governing body the
power to designate uses for different zones in the municipality and to enact or
amend a zoning ordinance that provides regulations for each zone district. The
zoning ordinance must be consistent with the Master Plan (NJ.S.A. 40:55D ‑
62a). It describes legally permitted land uses and densities for different
districts and provides the planning board and the board of adjustment with
rules for development review in those zones. Zoning designations for wetlands
areas, based on the master plan land use and conservation elements, can provide
for low intensity use, e.g., large lot zoning or cluster provisions to avoid
wetland areas.
LOCAL PLANNING, ZONING AND OTHER STATE
PROGRAMS
The
state mandate for local control of land use planning and zoning gives municipal
government opportunities for wetlands protection not available to the state. At
the same time, local planning and zoning are the basis for many state programs
and can promote protection of freshwater wetlands.
For
example, state water quality planning and associated wastewater management
planning prohibit providing sewer service to wetlands and other environmentally
critical areas. Local planning and zoning should reflect these constraints.
The
State Development and Redevelopment Plan’s goal is to manage the state's growth
largely through coordination of state agency and local land use planning. The
State Plan sets several statewide goals and policies and recommends areas for
growth and limited growth in an attempt to balance future development with
protection of natural resources, including freshwater wetlands. The Plan's
Planning Area system divides the state into five regions, each with different
development characteristics. The Plan's regional design system creates
objectives for development within these regions.
Planning Area Five consists of undeveloped areas where growth must be
carefully managed to protect environmentally sensitive features. The Plan
encourages local government to map these features and establishes strategies
for their protection. Since Planning Area Four B and Five criteria designate
freshwater wetlands systems as one of the areas for protection, local
governments should identify them for the State Planning Commission if the State
Plan Map did not.
MUNICIPAL LAND USE AND ZONING REGULATIONS
The Freshwater Wetlands Protection Act
does
not preempt ordinances with a general
purpose
that incidentally protect wetlands.
The land use and zoning ordinances can promote wetlands protection.
The land use regulations detail
requirements and standards for subdivision and site plan review. The zoning
ordinance establishes regulations by which municipal boards regulate development
in different zoning districts.
The Freshwater Wetlands Protection Act does not preempt ordinances with
a general purpose that incidentally protect wetlands. The following ordinances
and standards can be especially helpful in wetlands protection:
Critical areas ordinances regulate and provide design
standards for environmentally sensitive areas. It is important that such
ordinances state these purposes clearly, and define the critical areas, e.g.,
steep slopes, floodplains, high water table soils, poorly drained soils,
shallow depth to bedrock, streams and aquifer recharge areas, and set up
specific techniques to protect them: large lot zoning, useable land
calculations, buffers, or performance standards.
COURT
DECISION IN FAVOR OF ENVIRONMENT
On August 5, 2003, the
Supreme Court issued an important land use decision in Rumson Estates, Inc.
v. Mayor and Council of the Borough of Fair Haven and in Ferraro
Builders, LLC v. Borough of Atlantic Highlands Planning Boards. This decision gives municipalities the
ability to enact buildable area requirements that exclude environmentally
sensitive areas from bulk calculations.
This recent decision authorizes such restrictions as well as permitting
net density calculations. Municipalities
may now safely vary the definitions in the MLUL with limited exceptions
regarding homes for the developmentally disabled or other specific statutory
provisions, provided that the restriction advance sound planning and
environmental protection.
MUNICIPAL REVIEW OF
DEVELOPMENT APPLICATIONS
When
wetlands considerations are part of the municipal master plan and zoning
ordinance, freshwater wetlands protection is integrated into the local
development review process. Municipal boards and/or the construction official
can routinely trigger the state permit process when they receive applications
involving wetlands.
For
example, if the master plan or environmental resources inventory indicates a
proposed application may include wetlands, staff for municipal boards can
advise the applicant of the advisability of checking with the DEP about permit
needs. Getting a Letter of Exemption or a Letter of Interpretation from the
State (see Chapter III) will clarify the wetlands issues for a particular
application.
It is
in the applicant's and the town's interest to know if and/or where wetlands are
located on a site since wetlands considerations may be an important factor in
subdivision and/or site plan design.
TIME LIMITS FOR
MUNICIPAL APPROVAL
The
MLUL sets forth strict time limits for municipal approval of development
applications (see Table 8 below), keyed to the date an application is deemed
complete. If the municipality has adopted by ordinance a checklist to determine
when an application is complete, the time limits do not start until all
items on the checklist are submitted or
a waiver for an item is granted. The municipal checklist can include the
following kinds of requirements:
‑ copies of site plan maps, showing:
·
site topography, drainage, vegetation
·
proposed grading and landscaping
·
soil erosion and sediment control
‑ an Environmental Impact Statement
‑ proof that utilities are available
‑ where wetlands exist on site, a Letter of
Exemption or a Letter of Interpretation from the NJ DEP
Table 8
MUNICIPAL TIME LIMITATIONS FOR APPROVAL OR DENIAL
OF DEVELOPMENT APPLICATIONS
Review
Time
Preliminary* subdivision of 10
lots or less 45
days
Preliminary* site plan for 10
acres or less 45
days
Preliminary* subdivision of
more than 10 lots 95
days
Preliminary* site plan for more
than 10 acres 95
days
Final" site plan and subdivision
45
days
General Development Plan for
PUD
95 days
Use variance applications 120
days
Conditional use 120
days
Preliminary approval gives the applicant the right to
construct site improvements. It determines layout and design standards for
streets, curbs, sidewalks; lot size; yard dimensions; safe vehicular access;
stormwater management. Final approval determines the specific, detailed
specifications for the conditions the applicant must meet, including those in
the preliminary approval.
Review times can be extended
with the applicant's agreement.
SUGGESTIONS FOR MUNICIPAL ACTION
Municipalities
need to be diligent in ensuring that building permits, septic systems, wells,
etc. are not authorized in freshwater wetlands or freshwater wetland transition
areas without DEP review and/or permits. Municipalities may require the
applicants for these type of approvals to provide them with DEP authorized
wetland delineation mapping, available on-line or from many county offices, as
a part of the application process. Those projects that appear likely to impact
regulated areas can then be sent to DEP Land Use Regulation for review through a Letter of Interpretation
(a freshwater wetland delineation which has been confirmed by DEP) or a DEP
permit prior to the processing of the local permit.
1.
Boards can include conditions in site plan and subdivision approvals of
approval to insure protection of wetlands through: conservation easements,
official approval of each construction phase (sequence of construction) and
agreements for future maintenance activities.
2. Amend development
application checklist to include a requirement for either:
a. a copy
of Letter of Exemption[1]
from the DEP's Land Use office and documents sent with applications for Letter
from the DEP, when appropriate.
b. a copy
of a Letter of Interpretation from the DEP and documents sent with application,
when appropriate.
3. Amend final site plan and/or
subdivision application requirements to include submission of
a map
showing the state permit number and a state‑approved wetlands delineation
and transition area boundaries at the same scale as the municipal tax map, when
wetlands exist on the subject or adjacent tract. Requiring the boundaries to be marked with
state plane coordinates enables the municipality to enter the data into the GIS
data base.