N.J. Admin. Code § 7:38-3.6

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:38-3.6 - Highlands open waters

(a) There shall be a 300-foot buffer adjacent to Highlands open waters in which no disturbance is permitted, except as provided in this chapter.

(b) All new major Highlands development is prohibited within a Highlands open water and its adjacent 300-foot buffer except for linear development, which shall be permitted provided that there is no feasible alternative for the linear development outside the Highlands open water or Highlands open water buffer.

1. In order to demonstrate "no feasible alternative for linear development" the applicant shall demonstrate that there is no other location, design and/or configuration for the proposed linear development that would reduce or eliminate the disturbance to a Highlands open water or the adjacent buffer. The additional limitations at (b)1i and ii below apply for proposed linear development that would provide access to an otherwise developable lot.

i. The proposed linear development is the only point of access for roadways or utilities to an otherwise developable lot; and

ii. Shared driveways are used to the maximum extent possible to access multiple lots, especially in areas containing steep slopes, Highlands open water or Highlands open water buffers.

2. For a driveway, the applicant shall, in addition to (b)1 above, demonstrate that:

i. The applicant has made a good faith effort to transfer development rights for the lot pursuant to 13:20-13, and has not obtained a commitment from the Highlands Council or a receiving zone municipality to purchase said development rights;

ii. The lot has been offered for sale at an amount no greater than the specific fair market value to all property owners within 200 feet of the lot, and to the land conservancies, environmental organizations, the Highlands Council and all other government agencies on a list provided by the Department, at an amount determined in compliance with N.J.S.A. 13:8C-26j or 13:8C-38j, as applicable by letter sent by certified mail, return receipt requested, with a copy to the Highlands Council, using the form provided by the Department, disclosing the location on the lot of all Highlands resource areas as defined in 7:38-1.4 and stating that an application to develop the lot has been filed and enclosing a copy of a fair market value appraisal, in accordance with (b)2iv(5) below, performed by a State-licensed appraiser based on the minimum beneficial economically viable use of the property allowable under local law; and

iii. No reasonable offer for the lot has been received; and

iv. Documentation for (b)2i through iii above shall include:

(1) A copy of each letter that the applicant sent under this paragraph;

(2) A copy of all responses received. Each response shall be submitted to the Department within 15 days after the applicant's receipt of the response;

(3) A list of the names and addresses of all owners of real property within 200 feet of the lot, as certified by the municipality, including owners of easements as shown on the tax duplicate;

(4) Receipts indicating the letters were sent by certified mail;

(5) For submittal to all property owners within 200 feet, a copy of the fair market value appraisal required under (b)2ii above; and

(6) A copy of a written response or a resolution from the Highlands Council demonstrating that it has considered and rejected the offer;

3. An alternative shall not be excluded from consideration under this subsection merely because it includes or requires an area not owned by the applicant which could reasonably be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed linear development.

4. After consideration of the information required in (b)1 through 3 above, the Department shall not issue an HPAA under this section if an applicant has refused a fair market value offer to purchase the property for which the driveway linear development is sought or if the Department finds that there is an alternative to the proposed linear development.

(c) An applicant shall provide mitigation in accordance with N.J.A.C. 7:7A for each Department-approved linear development proposed within a Highlands open water that is also a freshwater wetland or State open water, as defined in the Freshwater Wetlands Protection Act rules at 7:7A-1.4.

(d) Structures or land uses in a Highlands open water buffer existing on August 10, 2004 may remain, provided that the area of disturbance is not increased.

(e) Nothing in this section shall be construed to limit the authority of the Department to establish buffers of any size or any other protections for Category One waters designated by the Department pursuant to the Water Pollution Control Act, 58:10A-1 et seq., or any other law, or rule or regulation adopted pursuant thereto for major Highlands development or for other development that does not qualify as major Highlands development.

N.J. Admin. Code § 7:38-3.6

Amended by R.2006 d.420, effective 12/4/2006.
See: 37 N.J.R. 4767(a), 38 N.J.R. 5011(a).
Rewrote (b).