N.J. Admin. Code § 7:38-9.2

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

Section 7:38-9.2 - Application requirements for a Highlands Applicability Determination

(a) All applicants seeking a Highlands Applicability Determination shall provide the information listed at (b) and (c) below on a Highlands Applicability Determination form. In addition, if an applicant is claiming an exemption from the Highlands Act in accordance with 7:38-2.3, the applicant shall submit the information required at (d) below. If an applicant is claiming that a project or activity is not regulated by the Department because it is an agricultural or horticultural development or use, applicants shall submit the information required at (e) below. A person applying for a Highlands Applicability Determination shall provide:

1. Information relating to the applicant, project site and proposed project or activity as described at (b) below, a fee in accordance with N.J.A.C. 7:38-10, and a certification of accuracy;

2. Detailed information about the proposed method of wastewater treatment and water supply for the proposed project or activity, as described at (c) below;

3. Additional information about the project or activity necessary to assess exemption status, as described at (d) below; and

4. If an activity is supposed to be agricultural or horticultural, information as described at (e) below.

(b) In order for the Department to determine whether a proposed activity is a major Highlands development subject to regulation under the Highlands Act, an applicant shall provide the following:

1. Two completed copies of the Highlands Applicability Determination application form, and all associated attachments as required and described in (b)3 through 9 and (c) through (f) below, completed in accordance with the directions on the form;

2. The required application review fee, set forth at N.J.A.C. 7:38-10, together with documentation regarding the cost of the proposed development, paid by personal check, certified check, attorney check, government purchase order, or money order; made payable to "Treasurer, State of New Jersey" and marked with the name of the applicant and an indication that the fee is for a "Highlands Applicability Determination";

3. The name and location of the proposed project or activity including:

i. The address of the project or activity location;

ii. The lot and block numbers where the proposed project or activity will occur;

iii. The municipality and county where the proposed project or activity will occur;

iv. The total land area in acreage of both the proposed project and the site on which the activity is located;

v. A copy of the municipal tax map(s) delineating the project or activity site by lot(s) and block(s); and

vi. The approximate boundaries of the project or activity site clearly delineated on a U.S.G.S. quadrangle map, including title-name of Quad, or GIS coverage and the State Plane coordinates in NAD 1983 for a point at the approximate center of the site. The accuracy of these coordinates should be within 50 feet of the actual point. For linear projects or activities, the applicant shall provide State plane coordinates for the endpoints of those projects, which are 1,999 feet or less, and for those projects which are 2,000 feet or longer, additional coordinates at each 1,000-foot interval. For assistance determining State Plane Coordinates for a site see the iMAP webpage at nj.gov/dep/gis/depsplash.htm;

4. A folded site plan, certified by a licensed New Jersey Professional Engineer clearly showing:

i. All proposed site improvements;

ii. The total area of proposed disturbance including the supporting calculation;

iii. The total area of existing impervious surface at the site and total area of additional impervious surface to be added to the site as a result of the project or activity including all supporting calculations;

iv. A delineation of all forest on the site. If the proposed activity will disturb any forest area, the area calculations for the proposed disturbed portions of forest; and

v. A copy of the official proof of filing for the site plan(s) or subdivision plat(s) that includes a county signature and stamp;

5. Proof that the public notice requirements at (b)5i through iii below have been met. To prove that a document has been sent to a person, the applicant shall submit either the white postal receipt bearing the recipient's name, address, the date material was sent by certified mail and the cost to the sender, or the green certified mail return receipt card. If a project is located in more than one municipality or county, the notice requirements below must be met for each municipality and county in which the site is located. The applicant shall submit the following to the Department:

i. Proof that the municipal clerk was sent a copy of the entire application and supporting documentation submitted to the Department;

ii. Proof that the Highlands Council was sent a copy of the entire application and supporting documentation that was submitted to the Department; and

iii. Proof that a completed copy of the notice letter (Attachment A on the application form) was sent to:

(1) The municipal environmental commission (if one exists);

(2) The municipal planning board;

(3) The municipal construction official;

(4) The county planning board; and

(5) The county environmental commission (if one exists).

6. A statement whether or not the applicant considers the project or activity a Capital Improvement as defined in 7:38-1.4;

7. A statement whether or not the applicant considers the proposed project or activity solely an agricultural or horticultural development or use pursuant to N.J.A.C. 7:38-1.4;

8. A statement by the applicant indicating what, if any, Department permits or approvals are sought; and

9. A statement whether the proposed development or activity is required as part of an administrative order, court order, administrative consent order (ACO) with the Department, or a judicial consent order (JCO), along with a legible copy of the complete order.

(c) In addition to the information required in (b) above, an applicant shall provide the following information regarding the proposed method of wastewater treatment and water supply:

1. A description of the type of proposed development or activity:

i. If residential development:

(1) The type of dwelling units;

(2) The number of dwelling units; and

(3) The number of bedrooms per unit; or

ii. If commercial, institutional or industrial development:

(1) The type of establishment and a statement whether the development is commercial, institutional or industrial;

(2) The total square footage of the structures;

(3) The maximum building occupancy; and

(4) The anticipated population of the development (for example, total number of employees or employees per shift, students, or residents); or

iii. If the development does not fall into the categories listed under (c)1i or ii above:

(1) The type of establishment;

(2) The total square footage of the structures; and

(3) The anticipated population of the development (for example, total number of employees or employees per shift, students, or residents);

2. A determination of the projected amount of wastewater planning flow to be generated in gallons per day, for the development or activity, calculated as follows:

i. Except for individual subsurface sewage disposal systems, current wastewater flows shall be determined based on metered data, where available. Where metered data is unavailable, flows shall be calculated from the most recent 12-month period available, unless the Department approves another time period; and

ii. The average flow from future development, exclusive of industrial flows, shall be calculated using the projected flow criteria at 7:14A-23.3 or 7:9A-7.4, as applicable for the type of wastewater facilities proposed. A rationale shall be provided for the calculation of future industrial flows. Since the flow criteria at 7:14A-23.3 includes allowances for inflow and infiltration, additional future infiltration and inflow shall not be projected;

3. After calculating the projected wastewater planning flow in (c)2 above, the applicant shall:

i. State the proposed method of wastewater treatment (that is, individual subsurface sewage disposal system(s), or an existing or proposed domestic or industrial treatment works, requiring a New Jersey Pollutant Discharge Elimination System permit under N.J.A.C. 7:14A);

ii. Indicate which projected flow criteria was used as the basis to calculate the wastewater planning flow;

iii. State the projected amount of wastewater planning flow from the development or activity;

iv. If a new domestic or industrial treatment works is proposed, state the name(s) of the owner and operator of the treatment works, its proposed location, and the proposed discharge location;

v. If wastewater is proposed to be conveyed to an existing wastewater treatment facility:

(1) State the name and location of the existing wastewater treatment facility;

(2) State the New Jersey Pollutant Discharge Elimination System permit number;

(3) State the type of wastewater disposal and whether the wastewater treatment facility discharges to surface or groundwater;

(4) State the actual flow, committed flow, design flow and permitted capacity of the wastewater treatment facility;

(5) Provide a letter from the owner of the wastewater treatment facility verifying that wastewater collection infrastructure (sewer lines) were existing on August 10, 2004 and their location; that the wastewater treatment facility has existing, available capacity to serve the proposed project; and that the owner of the facility is willing to provide a connection to serve the development; and

(6) Provide a copy of a site plan certified by a licensed New Jersey Professional Engineer or other appropriately scaled map showing the point of connection to the wastewater collection system as it existed on August 10, 2004;

4. A statement indicating whether the project or activity will be served by an individual well, public community well, non-public community well or identify the existing or anticipated water supply franchise area including name of purveyor; and

i. If an existing purveyor currently possessing a water allocation permit or registration is proposed as the water supply source, identify the amount of source water authorized by the allocation permit or registration and the amount of the allocation or registration already connected to this source;

ii. If a new water supply franchise area is proposed, identify the proposed water purveyor and the proposed location and type of water supply;

iii. If the water supply is to be provided by residential, commercial or industrial wells, state the number of residential, commercial or industrial wells that the proposal will require;

iv. If water is to be provided by irrigation wells, state the number of wells the proposal will require; and

5. Calculate the projected water supply demand for the proposed development or activity in gallons per day in accordance with the following:

i. Present water supply demands shall be determined based on metered data, where available. Where metered data is available, demand shall be determined based upon the most recent 12-month period available unless the Department approves or requires another time period; and

ii. The average water supply demand from future development shall be calculated using the average daily water demand criteria at 7:10-12.6, Table 1, unless an alternative method is approved or required by the Department.

(d) In addition to providing all the information required at (b) and (c) above, the following information shall be provided if an applicant is seeking a letter of exemption from the requirements of the Highlands Act:

1. For the construction of a single family dwelling pursuant to 7:38-2.3(a)1:

i. A copy of a deed, closing or settlement statement, title policy, tax record, mortgage statement or any other official document showing that the lot was legally owned by the applicant on or before August 10, 2004 and indicating the lot, block, municipality and county in which the lot is located, along with any street address;

ii. If the applicant does not own the lot, a copy of the binding contract of sale executed by the seller and the applicant on or before May 17, 2004 for the lot on which the house is to be constructed;

iii. A certification by the applicant stating that the single family dwelling proposed for construction on the lot, block, municipality, county and street address described by the applicant in the certification is intended for the applicant's own use or the use of an immediate family member identified in the certification by name and relationship to the applicant; and

iv. A site plan certified by a licensed New Jersey Professional Land Surveyor showing what structures currently exist on the lot;

2. For the construction of a single family dwelling for use by a person other than the property owner or immediate family member pursuant to 7:38-2.3(a)2:

i. A copy of the recorded deed or plat showing that the lot was created on or before August 10, 2004;

ii. A site plan certified by a licensed New Jersey Professional Engineer showing all existing and proposed development, including all structures, grading, clearing, impervious surface and disturbance;

iii. The calculations supporting the claim that impervious surfaces and areas of disturbance are within the limits necessary for this exemption; and

iv. A metes and bounds description of the area of the lot to be disturbed, limited to less than one acre and a draft conservation restriction to cover the balance of the lot.

3. For the construction of a major Highlands development with certain municipal and State approvals pursuant to 7:38-2.3(a)3:

i. A copy of a resolution by the local authority, granting one of the following approvals on or before March 29, 2004:

(1) Preliminary or final site plan approval;

(2) Preliminary or final subdivision approval, as applicable, where no subsequent site plan approval or proof of filing is required;

(3) Minor subdivision approval where no subsequent site plan approval is required; or

(4) A copy of a final municipal building or construction permit;

ii. Proof that the project has obtained at least one of the following DEP permits, on or before March 29, 2004, if applicable to the proposed development:

(1) A permit or certification pursuant to the Water Supply Management Act, 58:1A-1 et seq.;

(2) A water extension permit or other approval or authorization pursuant to the Safe Drinking Water Act, 58:12A-1 et seq.;

(3) A certification or other approval or authorization pursuant to the Realty Improvement Sewerage and Facilities Act (1954), 58:11-23 et seq.; or

(4) A treatment works approval pursuant to the Water Pollution Control Act, 58:10A-1 et seq.; or

(5) If none of the approvals at (d)3ii(1) through (4) above are required for the project or activity, proof that at least one of these following DEP permits has been obtained on or before March 29, 2004, if applicable to the proposed major Highlands development:

(A) A permit or other approval or authorization issued pursuant to the Freshwater Wetlands Protection Act, 13:9B-1 et seq.; or

(B) A permit or other approval or authorization issued pursuant to the Flood Hazard Area Control Act, 58:16A-50 et seq.;

iii. A folded copy of the preliminary site plan or subdivision plat, including proof of filing in the case of a subdivision plat or deed or if the subdivision plat was not filed and the subdivision has expired, a copy of the resolution or a court order extending the subdivision approval prior to the date of its expiration;

iv. A copy of a letter from the local governing body, verifying that the use and zoning of the site have not changed since the approval specified in (d)3i above and stating the municipal approval is still valid, or stating the use and zoning have changed, but that the change does not require:

(1) Submission of a new or amended application for the proposed project; or

(2) Approval of a new or amended application by local authorities; and

v. Any other information that the applicant may provide that he/she believes is necessary to demonstrate that an activity qualifies for an exemption;

4. For reconstruction of any building or structure for any reason within 125 percent of the footprint of the lawfully existing impervious surfaces on the site provided that the reconstruction does not increase the lawfully existing impervious surface by one-quarter acre or more, pursuant to 7:38-2.3(a)4:

i. A site plan certified by a licensed New Jersey Professional Engineer depicting:

(1) All existing impervious surfaces, including all structures, grading, clearing, impervious surface and limits of disturbance, existing on the site on August 10, 2004; and

(2) All proposed development including all structures, impervious surfaces, clearing limits, and limits of disturbance, including grading;

ii. Photographs keyed to the site plan; and

iii. A copy of any official documentation indicating the original date of construction of the building or otherwise establishing the lawfulness of existing impervious surfaces;

5. For improvements to a legally existing single-family dwelling in existence on August 10, 2004 pursuant to 7:38-2.3(a)5:

i. A copy of any official documentation proving the single-family dwelling was in existence on August 10, 2004;

ii. A certification from the town clerk that the municipality considers the dwelling lawfully constructed and occupied;

iii. A description of the proposed improvement; and

iv. A certification from the applicant that the property and all improvements will continue to be used for a single-family dwelling purposes;

6. For any improvement, for non-residential purposes, to a place of worship owned by a non-profit entity, society or association, or association organized primarily for religious purposes, or a public or private school, or a hospital, in existence on August 10, 2004 pursuant to 7:38-2.3(a)6:

i. A copy of any official documentation indicating that the place of worship, public or private school or hospital was in existence on August 10, 2004;

ii. For improvements to a place of worship, documentation showing that the entity, society or association, or association organized primarily for religious purposes has non-profit status;

iii. A site plan certified by a licensed New Jersey Professional Engineer depicting:

(1) All existing impervious surfaces, including all structures, grading, clearing, impervious surface and limits of disturbance, existing on the site on August 10, 2004; and

(2) All proposed development including all structures, impervious surfaces, clearing limits, and limits of disturbance, including grading; and

iv. A certification of occupancy for any existing buildings or structures on the property;

7. For any activity conducted by a landowner in accordance with an approved woodland management plan, or the normal harvesting of forest products in accordance with a forest management plan approved by the State Forester pursuant to 7:38-2.3(a)7:

i. For a private landowner with an approved woodlot management plan:

(1) A copy of the applicant's tax bill showing that the site has farmland assessment tax status under the New Jersey Farmland Assessment Act, 54:4-23.1 et seq., if applicable;

(2) A brief description of the total area of woodlands that is the subject of the approved woodland management plan;

(3) A brief description of the length of time that the area to be managed has been in use for woodland management; and

(4) A copy of the approved woodland management plan; or

ii. For a forest management plan approved by the State Forester:

(1) A brief description of the total area where the normal harvesting of forest products occurs;

(2) A brief description of the length of time that the area to be managed has been in use for normal harvesting of forest products; and

(3) A copy of a forest management plan approved by the State Forester;

8. For the construction or extension of trails with non-impervious surfaces on publicly owned lands or on privately owned lands with conservation or recreational use easements pursuant to 7:38-2.3(a)8:

i. A site plan certified by a licensed New Jersey Professional Engineer showing the proposed trail construction with details including the location, and width of existing and proposed trails and those off-site trails to which they connect, if any;

ii. A written description of the non-impervious materials to be used; and

iii. For privately owned property, a copy of a deed for the property, including the language establishing the conservation or recreational use easement on the property;

9. For the routine maintenance and operations, rehabilitation, preservation, reconstruction, or repair of transportation or infrastructure systems by a State entity or local government unit, provided that the activity is consistent with the goals and purposes of the Highlands Act, and does not result in the construction of any new through-capacity travel lanes pursuant to 7:38-2.3(a)9:

i. A site plan certified by a licensed New Jersey Professional Engineer showing the existing and proposed transportation or infrastructure system;

ii. A written description of the work to be conducted, the purpose of the activity and how that purpose is consistent with the goals and purposes of the Highlands Act; and

iii. A brief description of the State entity or local government unit sponsoring and overseeing the proposed activities;

10. For the construction of transportation safety projects and bicycle and pedestrian facilities by a State entity or local government unit, provided that the activity does not result in the construction of any new through-capacity travel lanes of pursuant to 7:38-2.3(a)10:

i. A site plan certified by a licensed New Jersey Professional Engineer showing the proposed transportation safety project, bicycle or pedestrian facility;

ii. A written description of the proposed work and the purpose of the project; and

iii. A brief description of the State entity or local government unit sponsoring and overseeing the proposed activities;

11. For routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights-of-way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of the Highlands Act pursuant to 7:38-2.3(a)11:

i. A site plan certified by a licensed New Jersey Professional Engineer showing the existing and proposed public utility lines, rights of way, or systems;

ii. A written description of the work to be conducted, the purpose of the activity and how that purpose is consistent with the goals and purposes of the Highlands Act; and

iii. The identity of the public utility that is sponsoring the proposed activities; or, for the placement of cellular equipment on a legally existing overhead utility tower and the construction of the attendant 10-foot by 20-foot pad, when located within the four footings of such tower, a letter from the public utility that owns or controls the right-of-way giving permission to place the cellular equipment on the utility tower and to place the attendant pad within the footings.

12. For the reactivation of rail lines and rail beds existing on August 10, 2004 pursuant to 7:38-2.3(a)12:

i. A site plan certified by a licensed New Jersey Professional Engineer showing the location of the existing rail lines and rail beds; and

ii. A brief description of the project for reactivation, including the identity of the sponsoring entity, a description of the proposed project, and an estimated schedule for completion;

13. For the construction of a public infrastructure project approved by public referendum prior to January 1, 2005 or a capital project approved by public referendum prior to January 1, 2005 pursuant to 7:38-2.3(a)13:

i. A copy of the public referendum as it appeared on the official ballot;

ii. Documentation showing that the referendum was approved; and

iii. A resolution from the municipal or county governing body or certification by an official in the relevant State department, as the case may be, that describes the proposed project and it location and affirms that the proposed project is the same as that approved in the referendum;

14. For mining, quarrying, or production of ready mix concrete, bituminous concrete, or Class B recycling materials occurring or which are permitted to occur on any mine, mine site, or construction materials facility existing on June 7, 2004 pursuant to 7:38-2.3(a)14:

i. A site plan certified by a licensed New Jersey Professional Engineer showing the location of existing and proposed activity and development;

ii. Official documentation including, but not limited to, tax records, local or State permits, and bills of sale or lading demonstrating that the mine or facility was in existence and operating on June 7, 2004, and included the land on which the proposed activity or development will occur; and

iii. A copy of a Certificate of Registration issued by the Commissioner of Labor pursuant to 34:6-98.4;

15. For the remediation of any contaminated site pursuant to 58:10B-1 et seq. pursuant to 7:38-2.3(a)15:

i. A copy of a site plan certified by a licensed New Jersey Professional Engineer indicating the lot and block, municipality and county of the remediation site and the area above or below ground where contamination shall be removed or remediated;

ii. A brief description of the remediation activity to be conducted in the area described in (d)15i above; and any structures, impervious surfaces, clearing of vegetation or water diversion being proposed;

iii. A copy of a letter, application, order, memorandum of agreement or remedial action workplan approved by the Department, or any other documentation demonstrating that the remediation activities are required in accordance with 58:10B-1 et seq.; and

iv. The name of the DEP case manager or licensed site remediation professional assigned to the case, if any;

16. For any activities on lands of a Federal military installation existing on August 10, 2004 that lie within the Highlands Region pursuant to 7:38-2.3(a)16:

i. A site plan certified by a licensed New Jersey Professional Engineer showing the general location of the proposed activities as being within the borders of the Federal military installation and the activity's location with respect to Highlands Region boundaries; and

ii. A letter briefly describing the proposed activities signed by an official of the installation; and

17. For a major Highlands development, located within an area designated as of March 29, 2004 as Planning Area 1 (Metropolitan), or Planning Area 2 (Suburban) pursuant to the State Planning Act, 52:18A-196 et seq., that on or before March 29, 2004 was the subject of a settlement agreement and stipulation of dismissal filed in the Superior Court, or a builder's remedy issued by the Superior Court, to satisfy the constitutional requirement to provide for the fulfillment of the fair share obligation of the municipality in which the development is located pursuant to 7:38-2.3(a)17:

i. A copy of the settlement agreement and stipulation of dismissal filed in the Superior Court, or builder's remedy issued by the Superior Court;

ii. A copy of any site plans certified by a licensed New Jersey Professional Engineer, maps or other documentation clearly indicating the location of the fair share housing to be provided in accordance with the settlement agreement and stipulation of dismissal filed in the Superior Court, or a builder's remedy issued by the Superior Court and the location of all proposed structures, service or access roads, and infrastructure with respect to the boundaries of Planning Area I or II, as the case may be;

iii. A copy of all municipal approvals obtained for the project, or the schedule for applying and obtaining such approvals; and

iv. A proposed schedule for completion of the entire project including township approvals, site preparation, installation of utilities and roads, and construction of all buildings.

(e) In addition to the information required at (b) above, the following information shall be provided by applicants requesting a Highlands Applicability Determination for a project or activity believed to be agricultural or horticultural and unregulated by the Department pursuant to 7:38-2.2(b):

1. A copy of the applicant's tax bill showing that the site has farmland assessment tax status under the New Jersey Farmland Assessment Act, 54:4-23.1 et seq.; and

2. A brief description of the activities for which the exemption is claimed, including:

i. The types of farming or horticulture that will be pursued;

ii. Best management practices currently employed and/or to be employed;

iii. The length of time that the area proposed for disturbance has been in use for farming or horticulture; and

iv. The square footage or acreage of the entire site, of the impervious surfaces already existing on the site, and the total amount of impervious surface on the site if the proposed activity is permitted. If the proposed activity will result in more than three percent of the site being covered by impervious surface, applicants should contact the local soil conservation district for additional assistance.

(f) In addition to the information required at (b) through (e) above, the Department may require any information necessary to clarify information previously submitted, to ensure compliance with State and/or Federal law, or to determine whether an application meets State and/or Federal standards.

N.J. Admin. Code § 7:38-9.2

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)1; in (d)1i and (d)1ii, substituted "lot" for "property" throughout; in (d)2ii, deleted "and" from the end; in (d)2iii, inserted "and" at the end; added (d)2iv; in (d)7, deleted "for public lands," preceding "the normal harvesting"; in (d)7i(1), inserted ", if applicable" at the end; in (d)7ii, deleted "public lands with" preceding "a forest management"; in (d)9, deleted "of 2,640 feet or more not including tapers" preceding "pursuant to N.J.A.C."; in (d)10, deleted "2,400 feet or more, not including tapers" preceding "pursuant to N.J.A.C."; rewrote (d)11iii; in (d)15iii, inserted "memorandum of agreement or remedial action workplan approved by the Department,"; and in (e), deleted "and (c)" following "required at (b)".
Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
See: 41 N.J.R. 4467(a).
In the introductory paragraph of (d)15, updated the N.J.S.A. reference; and in (d)15iv, inserted "DEP" and substituted "or licensed site remediation professional assigned to the case" for "handling or supervising remediation at DEP".
Administrative correction.
See: 42 N.J.R. 1862(a).
Readoption of special amendment, R.2011 d.251, effective 9/8/2011.
See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
Provisions of R.2009 d.361, readopted with changes incorporated at 42 N.J.R. 1862(a).