Using Environmental Ordinances to Protect Local Natural Resources

As part of their broad home rule powers, elected local officials have the awesome responsibility of developing and enforcing a code of behavior to protect the public interest in natural resources in their community. Because we will never be able to buy all the land we need to insure the clean air, clean water, and open space for future generations, ordinances, especially those that regulate the use of the land, are natural preservation tools. Adopted by the municipal governing body or board of health,[1] ordinances are key to the protecting the local quality of life.

Well-written ordinances with strict and clear environmental standards form a framework for local boards and professionals to conduct fair and effective reviews of development applications. They cover a broad range of issues including zoning, the planting of trees, management of storm water, and preservation of stream buffers.

Local officials use ordinances to establish policies and standards that will endure beyond the life of the governing body or board of health that creates them. Ordinances are the body of public law that implement the goals of the local master plan and protect public assets like special environmental features identified in the environmental resource inventory (ERI). In short they carry out the public desire for an orderly and ethical society.

If properly enforced, ordinances create significant, long-lasting changes in a municipality.Because ordinances often place restrictions on private activities, they must be based on sound data and ensure the broadest protection of the public health, safety and welfare. Environmental commissioners, other municipal officials and interested citizens should understand the basics of drafting and passing creative and fair ordinances that will preserve or improve their community’s environment and quality of life.

New ordinances are generally an outgrowth of problems identified by the public or local officials in their day-to-day work. Ideas originate with environmental commissions, planning boards, the governing bodies, boards of health or a group of citizens. Generally, once there is general agreement on the major concepts, an attorney prepares a draft and submits it for review to the governing body and appropriate professionals like the municipal planner or engineer. Since the elected officials on governing body must pass most ordinances, it is very important to involve and inform them as early in the process as possible. Governing bodies and boards of health often turn to environmental commissions and planning boards for advice on specific issues.

Just because an ordinance is a good idea doesn’t mean the governing body will necessarily adopt it. Drafting an ordinance is just part of the process. Convincing elected officials to enact a particular ordinance takes at least as much time and effort. Several approaches can help gain the governing body’s support. First, if possible, identify a key elected official who has an interest in the subject. Include that person in discussions from the very beginning. Once you have agreement on the major issues the ordinance should cover, arrange a presentation at a work session of the governing to discuss the concepts. Keeping the governing body informed can help build support. It is helpful to identify a member of the planning board or governing body who supports the ordinance so this person can speak out at planning board and town council meetings. It will also help identify areas where you may have to modify specific ordinance provisions. You also need to build political support for a new ordinance among citizens, planning board members, local professionals (municipal and planning board attorneys, planner, engineer), local watershed associations and land trusts.

All proposed changes in local regulations, whether they involve such matters as raising a tax for open space acquisition, bonding to cover expenses, restoring a road surface, saving trees or changing land use patterns, should be critically reviewed for potential impacts on natural resource protection. Close attention to the process can prevent unintended consequences of casually adopted ordinances.

Zoning Ordinances to Help Preserve Open Land and Critical Areas

Carrying capacity zoning: Based on the ability of an area to accommodate growth and development within the limits defined by existing infrastructure and natural resource capabilities, this approach requires a comprehensive environmental inventory for implementation. Determining carrying capacity can be a difficult process, subject to differing opinions. For example the need for sewage disposal can limit the land's carrying capacity. If a residential subdivision can connect with a sewage treatment plant, the plant's capacity will dictate the number of new homes possible. If homes must rely on septic systems, a nitrate dilution model will determine the number of septics an area can handle. (See Smart Growth Survival Kit’s Build-Out and Carrying Capacity)

Cluster zoning: By maintaining the regular zoning's ratio of housing units to acreage and permitting clustered development through undersized lots, this technique allows for open space preservation. A Planned Unit Development provision in the MLUL (N.J.S.A. 40:55D-39 (b)-(c)) allows clustering for a large, mixed-use development. Flexibility in siting allows preservation of open space areas within a development site and reduces construction and infrastructure costs. Without comprehensive planning, cluster ordinances result in small pieces of unlinked preserved open space, with no connection to an open space system. They may also increase processing time for development approval.

Floor area ratio: Setting a standard for what the ratio of total floor area to the area of the lot adds some flexibility to zoning regulations while still controlling the intensity of development. It also can be applied directly to the building design and adapted to many architectural designs.

Large lot zoning: Large minimum lot sizes can help maintain low densities and protect water resources, particularly in rural areas. Since zoning is subject to change, large lots are not an effective device for permanent preservation. Large lots generally increase real estate values and infrastructure costs and foster sprawl.

Lot size averaging: The density remains the same overall but lot sizes can vary. This improves planning for critical areas and keeps land in private ownership.

Overlay zone: An overlay zone is a mapped zone that imposes a set of requirements in addition to those of the underlying zoning district. Municipalities use overlay zones when a special public interest such as a stream corridor, aquifer, ridge or steep slope does not coincide with the underlying zone boundaries. In the overlay zone, the land is simultaneously in two zones and may be developed only under the conditions and requirements of both zones. The overlay zone is part of the municipal zoning ordinance. Because the overlay zones are site specific, they add an opportunity to implement site-specific public policies, especially with environmental protection.

Performance zoning: A list of permitted impacts (based on natural resource data and design guidelines) as opposed to permitted uses define these zones and direct development to appropriate places based on a comprehensive, environmentally based plan. However, environmental impacts may be hard to measure and criteria hard to establish. The plan can be expensive to prepare.

Special zoning district: With development restrictions to protect agriculture, natural and historic areas, scenic views and neighborhood character, an ordinance establishing a special district ordinance should be specific enough to avoid varying interpretations.

A General Approach for Drafting an Ordinance

Clearly, the first step is to pinpoint the specific issue or concern. Master plan amendments often require new or amended regulations for their implementation. For example a recommendation to protect stream corridors may require amendments to land use and stormwater control ordinances. Specific environmental concerns like the abatement of lead paint or emissions from idling trucks may lead to ordinance changes by the board of health.

Second, conduct a critical review of all existing ordinances to determine a) if the issue is simply one of lack of enforcement of existing law or b) if existing ordinances can be amended to solve the problem. Amending an existing ordinance is easier than gaining support for an entirely new concept.

Third, review existing state law to determine if an existing statute supports the proposed solution. The New Jersey Constitution delegates certain powers to municipalities. For example, the Municipal Land Use Law puts the power of zoning and land use regulation in the hands of local government.[2]  

The state has enacted laws to protect some critical areas like wetlands and flood plains. The 1987 Freshwater Wetlands Protection Act (N.J.S.A. 13:9B-1 et seq.) for example, preempts municipalities from regulating wetlands although wetland areas are generally zoned for some use. Local zoning ordinances should refer to the state mandates of these laws, by requiring, for example, a wetlands Letter of Interpretation before the Planning Board or Board of Adjustment will consider applications for subdivision and site plan review.

Local land use regulations should also insure that land preserved at public expense is sufficiently buffered to protect its important environmental qualities. For example, allowing dense condo development around a preserved farm provides the developer with added value and limits the use of the preserved property for its major purpose. Condos surrounding a farm generally result in complaints that can limit the farmer’s ability to produce crops. Similarly, condos around a public ball field generally lead to conflicts over traffic and noise.

Fourth, gather background information about the issue of concern. Accurate information will help in drafting and defending the ordinance during public meetings. It is also very important to have a solid factual basis to fend off potential court actions once the ordinance is enacted. Sources of background information include the ERI, ANJEC publications, NJDEP documents, EPA technical reports, the State Plan, environmental documents and reports, scientific and academic studies. Contact the ANJEC Resource Center at Resourcecenter@anjec.org or (973) 539-7547 for additional guidance.

A review of related ordinances and initiatives adopted in other municipalities can provide a great deal of useful information. Few municipal governments want to be the first to adopt a new type of ordinance. Using other community initiatives as examples often helps convince local officials to move into new areas.

ANJEC has developed a database of more than 500 environmental ordinances that have been adopted by communities around the state. These ordinances reflect local environmental conditions and political realities. Copies are available to ANJEC members. To request an ordinance from ANJEC’s database, review the Topics in ANJEC Ordinance Database and email a request to Resourcecenter@anjec.org or call the Resource Center directly at (973) 539-7547.

A number of organizations also have model ordinances available online. While local officials rarely adopt a complete model ordinance, they often will accept specific concepts or sections.

Tips for Writing an Ordinance 

By Rodney C. Nanney, Ypsilanti Charter Township, Michigan

Brevity and clarity the key to effective local codes

Touch up definitions. Look for duplications (like “main building” and “principal building”), and for definitions that are outdated, poorly written or no longer referenced in the ordinance.

Add subject headings and titles in italicized or bold fonts.

Consolidate subject areas into a single section: Pick a topic, (like “landscaping”) try to find all references, and put them in the same section.

Eliminate unnecessary words and phrases like herewith, deemed to be, and double negatives.

Write new ordinances with the following questions in mind:

  • Can it be stated in fewer words?
  • Does the text clearly reflect the intent of the ordinance?
  • Could lengthy text be replaced by an illustration? Remember, a picture is worth 1,000 words.
Ordinance Structure

Once the necessary information has been collected and thoroughly examined, and the governing body has agreed in principle with the concept, the process of drafting the ordinance can begin. A typical ordinance generally contains several major sections including the (1) Title, (2) Purpose, (3) Definitions, (4) Standards, (5) Applicability, (6) Submittals, and (7) Penalties and Fees.

The TITLE, or legal name by which an ordinance can be cited, states the scope and identification number of the document, as well as the name of the municipality.

The PURPOSE should clearly describe the main objectives of the ordinance, including the reason(s) why the ordinance should be adopted. Background information gathered during the pre-drafting process can prove very useful at this time. Should the ordinance be challenged in the courts, the purpose section justifies its existence. For this reason, this section should be as detailed as possible and the wording should be clear and concise. It should also reflect the master plan goals and objectives. Most importantly, it must contain accurate information that clarifies the purpose of the ordinance. Examples of PURPOSE Statements

The DEFINITIONS section describes key terms used within the ordinance. Definitions should be clear and understandable since they are the fundamental building blocks for other sections of the ordinance. Any special terms introduced within an ordinance should be thoroughly explained in this section. A few towns have used graphics effectively to clarify the definitions such as a cross-section of a stream corridor to define the zones. Examples of DEFINITIONS

STANDARDS are the specific details that guide local officers and agencies as they implement and enforce the ordinance. Standards should be based on science. For example Cook College’s 1989 Watershed Management Strategies for New Jersey provides a solid foundation for requiring a stream buffer of 150 to 300 feet for nutrient and pollutant removal. If you have sufficient background data, you will be better prepared to defend standards during the drafting process. Well-written standards also will help with enforcement. Examples of STANDARDS

APPLICABILITY describes precisely “who” and “what” the ordinance will govern. Perhaps the ordinance applies only to developments or subdivisions over a certain size, or in specific zones, or creates overlay zones for sensitive environmental features like ridgelines or aquifer recharge areas.

The SUBMITTAL section sets out the information and plans required of anyone proposing a project or development covered by the ordinance. A well thought out and written submittal section can help insure that the municipality receives enough data to be able to assess the impacts of a particular proposal. Be careful to require a reasonable amount of data. Otherwise, applicants will probably request waivers and/or ignore some requirements.

For example, the required elements of an Environmental Impact Statement can be listed in this section: flora and fauna inventory, lighting and noise studies, etc. Set high standards for the most important issues by asking for specific details so the applicant knows to submit worthwhile information rather than boilerplate text. For instance, a stream corridor ordinance can require the submittal of a hydrologic report that shows the effects of drainage on the buffer area, but few stream corridor ordinances do so currently. Examples of SUBMITTALS

FEES required of applicants AND PENALTIES that may result from the violation of an ordinance are specified within the individual ordinance or as a general condition of the Land Use Regulations. Since local officials will refer to this section when enforcing the ordinance, it should be clear and comprehensive to insure that it covers all applicable cases. This section should set out who will enforce the ordinance (for example the zoning officer or building code official), what the penalties are, how property owner will be notified of a violation, and any relevant time frames.

An ordinance should reflect the local conditions of a municipality. Model ordinances can be very helpful, but one that is not tailored to a particular municipality’s needs may be worse than no ordinance at all. Topography, hydrology, population, industrial development, and species diversity are some of the factors that vary widely between municipalities. Unique physiographic features found in specific regions of New Jersey, such as the sand dunes along the coastal zone, or underground limestone deposits in the northwestern part of the state, also require special protection.

Ordinance Approval Process

Under NJ law, the municipal governing body or board of health has to follow specific timetables when adopting an ordinance. (N.J.S.A. 40:49-2) Every meeting where either of these agencies is taking formal action on a new ordinance must comply with all requirements of the Open Public Meetings Act (N.J.S.A 10:4-7 et seq.).

To start the process, the proposed ordinance is introduced in a first reading at a publicly advertised meeting. The governing body must agree by a majority vote to proceed and determine the date for a second reading and public hearing at that time. The complete text or title and summary of land use ordinances must be advertised in the municipality’s official newspaper at least 10 days before the public hearing and posted on the municipal bulletin board. Notice of amendments to zoning ordinances must be send to all owners within 200 feet of all boundaries of the district (unless the change is implementing a change in the Master Plan). Copies of the ordinance must also be made available to the public through the municipal clerk. If the ordinance relates to land use, the governing body must send a copy of the ordinance to planning board for review. The planning board has 35 days after the first reading to comment on the proposed ordinance’s consistency with the master plan.

The second reading or public hearing gives local officials, residents and all other interested parties the opportunity to express their support, concerns and opinions about the ordinance, ask questions and to present pertinent information. Based on the outcome of the public hearing, the governing body may pass, reject, amend, or delay final consideration pending additional information.

If substantive amendments are introduced, the ordinance must return to first reading. Then the same introduction and hearing process begins again until it is passed.

A majority of the members of the governing body have to vote in favor of a new ordinance for it to pass. For zoning changes, if the owners of 20% or more of the area being rezoned or of those within 200 feet of the rezoning sign a protest, then two-thirds of the members of the governing body must vote in favor the ordinance for it to pass. After adoption a final draft must be made available to the public at the municipal building. All land use ordinances must also be filed with county planning board for them to take effect. The local government must also publish either the title with a summary or the entire document in the official local newspaper. The new ordinance remains in effect in perpetuity unless amended or revoked by the governing body. 

Examples of Sections of Ordinances

Disclaimer: The following excerpts are examples of workable approaches that municipalities have developed to deal with environmental and land use issues. They are samples and should be modified to reflect environmental conditions, current regulations and state-of-the-art knowledge in the environmental field.

PURPOSE Statements

Whether making an amendment, creating a subsection, or drafting a new ordinance, detail and accuracy are of utmost importance. The illustrations below show several ways to write effective purpose statements.

Ten Towns, Great Swamp
Model Ordinance Creating Stream Buffer Conservation Zones for Perennial and Intermittent Streams

  1. Reduce the amount of nutrients, sediment, organic matter, pesticides, and other harmful substances that reach watercourses, wetlands, subsurface, and surface water bodies by using scientifically-proven processes including filtration, deposition, absorption, plant uptake, biodegradation, de-nitrification and by improving infiltration, encouraging sheet flow, and stabilizing concentrated flows.
  2. Improve and maintain the safety, reliability and adequacy of the water supply for domestic, agricultural, commercial, industrial and recreational uses along with sustaining diverse populations of aquatic flora and fauna.
  3. Regulate the land use, siting and engineering of all development to be consistent with the intent and objectives of this ordinance, accepted conservation practices, and to work within the carrying capacity of existing natural resources.
  4. Assist in the implementation of pertinent state laws concerning erosion and sediment control practices.
  5. Conserve the natural features important to land and water resources (e.g. headwater areas, groundwater recharge zones, floodways, floodplains, springs, streams, wetlands, woodlands, prime wildlife habitats) and other features constituting high recreational value or containing amenities that exist on developed and undeveloped land. 
  6. Work with floodplain, steep slope, and other ordinances that regulate environmentally sensitive areas to minimize hazards to life, property, and stream features.
  7. Conserve natural, scenic, and recreation areas within and adjacent to stream areas for the community’s benefit.

Moorestown, Burlington County
An ordinance to preserve natural waterways

The purpose of this amendment is to promote public health, safety and general welfare, and to promote the aesthetic, recreational and natural resources values by: preserving the natural flow patterns of waterways within the region, in order to retain the natural storage capacity of the watershed and to protect and maintain the water table and recharge areas within the municipality for a continued, adequate supply of water to wells, ponds, and streams; maintaining undisturbed the ecological balance between wildlife, plant, and aquatic life, which are dependent upon watercourses and their protective floodplains and slopes; protecting, enhancing and restoring the shoreline cover; maintaining shade and cool water temperatures in the streams and other waterways; and protecting scenic beauty, controlling erosion and reducing effluent and nutrient flow from the shoreline.

DEFINITIONS

The definitions section of an ordinance describes any terms or special titles that may require clarification. It is critical that the definitions be written with as much detail as possible, as any misinterpretation can reduce the effectiveness of the ordinance. 

Franklin Township, Somerset County, Stream Corridor Preservation Ordinance

Stream corridors include four components: stream channels, flood plains, critical slopes of 12 percent or greater, and associated preservation areas. These components are defined as follows:

(1)  STREAM CHANNELS: Stream channels for both permanent and intermittent watercourses of either delineated or non-delineated streams consist of the bed and banks of a stream within which is conveyed the normal flow of the stream, as identified on any one or more of the following:

[a] Flood Boundary and Floodway Map and Flood Insurance Rate Map, prepared by FEMA

[b] Soil maps from the Soil Survey of Somerset County, New Jersey

[c] An alignment survey, including profile and cross-sections, prepared by a licensed New Jersey Engineer and/or Land Surveyor

[d] Such other maps as the Township may adopt

(2) FLOOD PLAINS: Flood plains are delineated in (1)[a] above, and include the floodway and the New Jersey Flood Hazard Area, and the encroachment lines of non-delineated streams. If both a 100-Year Flood Limit and a Stream Encroachment Line have been established, the flood plain shall be delineated by the area encompassed within both lines.

(3)  CRITICAL SLOPES: Land whose slope exhibits a change in elevation greater than 12% for a horizontal distance of 10 feet or greater, and where the toe of the slope lies within 50 feet of the stream channel bank or floodplain shall be deemed critical slopes. The protection area for critical slopes shall be the lesser of:

[a] A slope distance of 100 feet from the toe of slopes having a consistently average slope of 12% or greater

[b] A slope distance of 50 feet beyond the first point at which the slope is less than 12%

(4)  PRESERVATION AREAS: The Stream Corridor Preservation Area is required to be delineated as the most restrictive limit of any of the three (3) distances established in accordance with the following schedule

STANDARDS

The standards set out who has to comply with the ordinance, how and when. A simple example of how new construction will not infringe on stream corridors in accordance with a local ordinance might be the following:

Mount Olive Township, Morris County:
An ordinance maintaining a stream corridor during development

All residential and non-residential subdivisions, including minor subdivisions, and all site plans, both residential and non-residential, shall provide for a stream corridor buffer as part of the development scheme. Stream corridor buffers shall have a width of 100 feet on each side of all stream corridors, and no building or structure, including driveways or parking areas, whether pervious or impervious, shall be erected within any stream corridor or stream corridor buffer. No septic system shall be located within any stream corridor, or stream corridor buffer, and in no case closer than 100 feet of the top of bank of any stream.

SUBMITTALS

A submittal section describes the data and studies required from the applicant in order for the governing body to review the request and determine whether the project is in compliance with the ordinance.

Far Hills, Somerset County: An ordinance regulating development within a stream corridor requires a developer to submit

a) Delineation of stream corridors

b) Detailed hydrologic engineering studies indicating the effects on drainage, stream, and adjacent properties as well as the property in question, including necessary data to determine whether the boundaries of the stream corridor would be affected if the application were granted.

c) A plan indicating the disposition of any fill material proposed to be deposited by the grading or re-grading of land. No fill is to be placed on wetlands.

d) The designation of how suitable techniques, including erosion and soil stabilization measures, sediment traps and nutrient control by vegetation filters or other mechanisms, will be incorporated to protect the stream.

e) A demonstration that the use or activity cannot be located outside the stream corridor.

ANJEC Ordinance Database Description

ANJEC has developed a database of over 500 current environmental ordinances from municipalities throughout New Jersey. These ordinances are examples of approaches that have worked in other municipalities. They should be modified to reflect local environmental conditions, current regulations, and state-of-the-art knowledge in the environmental field.

If your community has recently passed an innovative ordinance, please email or call the Resource Center at (973) 539-7547. We can also provide valuable assistance with getting an ordinance written and passed.

Please note that ordinances are available to ANJEC members who are

  • Environmental Commissioners, Municipal Officials or staff of non-profit environmental organizations;
  • The ordinance is to be used for a municipal initiative or watershed-related project.

We have indexed the ordinances in our database to help locate what you need.

To request an ordinance send us an email request with the keywords that best describe what you’re looking for.

ANJEC Ordinance Database Keywords

The ANJEC Resource Center maintains an electronic database of ordinances to protect natural resources.  When available, court and litigation history and commentary from town officials is noted.  The following is a listing of sample ordinances maintained in the database.

Disclaimer. ANJEC’s Ordinance Database contains examples of approaches that have worked in other municipalities.  They should be modified to reflect local environmental conditions, current regulations, and state-of-the-art knowledge in the environmental field.

Buffers
Checklists
Cluster
Commissions/Committees
Conservation Tools
Critical Areas
Flood Hazard
Impact Statements
Land Use
Secondary Impacts
Stream Corridors
Water Quality
Zoning

Buffers

  • Development
  • Stream Corridor 

Checklists

  • Environmental Impact
  • Flood Hazard

Cluster

  • Conservation
  • Forest
  • Historic Preservation
  • Industrial
  • Planned Development
  • Recreational
  • Redevelopment/Brownfields
  • Rezoning 

Commissions/Committees

  • Agricultural
  • Environmental
  • Growth Management
  • Historic Preservation
  • Open Space
  • Parks
  • Regional Planning
  • Shade Tree 

Conservation Tools

  • Conservation Easement
  • Deed Restrictions
  • Energy
  • Lot Size Averaging
  • Open Space
  • Recycling
  • Transfer of Development Rights

  Critical Areas

  • Carbonate/Limestone
  • Dunes
  • Endangered/Threatened Species
  • Slopes/Ridgeline
  • Trees/Forest
  • Wetlands

Flood Hazard

  • Slopes/Ridgeline
  • Soil Erosion/Sediment Control 

Impact Statements

  • Community
  • Environmental
  • Traffic

  Land Use

  • Bike Paths
  • Cellular Towers
  • Development
  • Impervious Surface
  • Lot Size Averaging
  • Pools
  • Roads/Scenic Corridors
  • Signs
  • Site Plan
  • Subdivision

    See also Cluster, Conservation Tools, Zoning 

Secondary Impacts

  • Light Pollution
  • Noise 

Stream Corridors

  • Surface Water
  • Trees/Forest
  • Wetlands
Water Quality

Zoning

For Further Information

[1] Boards of health can enact ordinances dealing with air and water pollution, hazardous substances, solid waste, and noise.

[2] The New Jersey Municipal Land Use Law sets the standards for the contents of the zoning (N.J.S.A. 40:55D-62, 63,64,65,66,67,68), subdivision and site plan ordinances (N.J.S.A. 40:55D-38, 39,40,41,42,43). It’s a good idea to review these sections of the law as a first step.