§ 200-149. Riparian zones; steep slopes; building prohibition along watercourses and floodplains., Article XXVI. Titles, Purposes, Establishment of Districts; General Conditions, Part 4. Zoning, Chapter 200. Land Use, Part II. General Legislation, Code of Ordinances, West Windsor

Definitions. As used in this section, the following terms shall have the meanings indicated:

ACID-PRODUCING SOILS: Soils that contain geologic deposits of iron sulfide minerals (pyrite and marcasite) which, when exposed to oxygen from the air or from surface waters, oxidize to produce sulfuric acid. Acid-producing soils, upon excavation, generally have a pH of 4.0 or lower. After exposure to oxygen, these soils generally have a pH of 3.0 or lower. Information regarding the location of acid-producing soils in New Jersey can be obtained from local Soil Conservation District offices.

APPLICANT: A person, corporation, government body or other legal entity applying to the Planning Board, Board of Adjustment or the Construction Office, proposing to engage in an activity that is regulated by the provisions of this section, and that would be located in whole or in part within a regulated Riparian Zone.

CATEGORY ONE WATERS or C1 WATERS: Shall have the meaning ascribed to this term by the Surface Water Quality Standards, N.J.A.C. 7:9B, for purposes of implementing the antidegradation policies set forth in those standards, for protection from measurable changes in water quality characteristics because of their clarity, color, scenic setting, and other characteristics of aesthetic value, exceptional ecological significance, exceptional recreational significance, exceptional water supply significance, or exceptional fisheries resources.

DISTURBANCE: The placement of impervious surface, the exposure or movement of soil or bedrock, or the clearing, cutting, or removing of vegetation.

HUC14: The fourteen-digit hydrologic unit code mapping delineating a watershed boundary, as defined and established in New Jersey by the United States Geological Survey.

IMPERVIOUS MATERIAL: Any structure, surface, or improvement that reduces or prevents absorption of stormwater into land, and includes porous paving, paver blocks, gravel, crushed stone, decks, patios, elevation structures and other similar structures, surfaces or improvements.

LAKE, POND, OR RESERVOIR: Any surface water body shown on the New Jersey Department of Environmental Protection Geographic Information System (GIS) hydrography coverages or, in the case of a special water resource protection area (SWRPA) pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h), C1 waters as shown on the USGS quadrangle map or in the County Soil Surveys within the associated HUC14 watershed, that is an impoundment, whether naturally occurring or created in whole or in part by the building of structures for the retention of surface water. This excludes sedimentation control and stormwater retention/detention basins and ponds designed for detention and treatment of storm wastewater.

LINEAR DEVELOPMENT: Land uses, such as roads, lanes, paths, railroads, sewerage and stormwater, gas and water pipelines, electric, telephone, digital, and other transmission or distribution lines, that have the basic function of connecting two points, the rights-of-way or widening therefor, and any accessory structures or uses directly associated therewith. Linear development shall not include residential, commercial, institutional, office or industrial buildings, irrigation lines, or newly constructed improvements within a new land development such as utility lines or pipes or internal circulation roads not serving an area wide or regional purpose.

NO FEASIBLE ALTERNATIVE: A determination made by the Township Engineer regarding a linear development or expansion of an existing linear development that an alternative route, method or means of connecting the linear development or safely accommodating the additional use of a linear development is possible without resulting in greater disturbance or alteration of a surface water body or riparian zone or resulting in a development or expansion scheme or cost such that a hazardous, unsafe or ineffective linear development will remain or be developed. Environmental impacts such as increased air, water or noise pollution may be considered by the Engineer in the evaluation of hazardous or unsafe conditions.

REDEVELOPMENT: The construction and/or reconstruction of structures or improvements on areas which previously contained structures or other improvements.

RIPARIAN ZONE: The land and vegetation within and directly adjacent to all surface water bodies, including, but not limited to, lakes, ponds, reservoirs, perennial and intermittent streams, up to and including their point of origin, such as seeps and springs, as shown on the New Jersey Department of Environmental Protection's GIS hydrography coverages or, in the case of a special water resource protection area (SWRPA), pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h), C1 waters as shown on the USGS quadrangle map or in the County Soil Surveys within the associated HUC14 watershed. There is no riparian zone along the Atlantic Ocean nor along any man-made lagoon or oceanfront barrier island, spit or peninsula.

SPECIAL WATER RESOURCE PROTECTION AREA or SWRPA: An area, 300 feet in width, provided on each side of a surface water body designated as a C1 water or tributary to a C1 water that is a perennial stream, intermittent stream, lake, pond, or reservoir, as defined herein and shown on the USGS quadrangle map or in the County Soil Surveys within the associated HUC14 drainage, pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h). Establishment of the area shall be in accordance with § 200-101G(8).

STEEP SLOPES: Any percent of slope calculated as rise in feet per horizontal run in feet, calculated for each two-foot topographic contour interval, equal or greater than 20% as measured over any minimum run of 10 feet. Steep slopes are determined based on topographic contour intervals of two feet or less. Landscape berms constructed for purposes of landscape buffering, recreation, or creating a sense of space or sequence shall not be considered steep slopes for the purposes of this section.

STREAM, INTERMITTENT: A surface water body with definite bed and banks in which there is not a permanent flow of water and shown on the New Jersey Department of Environmental Protection Geographic Information System (GIS) hydrography coverages or, in the case of a special water resource protection area (SWRPA) pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h). C1 waters as shown on the USGS quadrangle map or in the County Soil Surveys within the associated HUC14 watershed.

STREAM, PERENNIAL: A surface water body that flows continuously throughout the year in most years and shown on the New Jersey Department of Environmental Protection Geographic Information System (GIS) hydrography coverages or, in the case of a special water resource protection area (SWRPA) pursuant to the stormwater management rules at N.J.A.C. 7:8-5.5(h). C1 waters as shown on the USGS quadrangle map or in the County Soil Surveys within the associated HUC14 watershed.

SURFACE WATER BODY(IES): Any perennial stream, intermittent stream, lake, pond, or reservoir, as defined herein. In addition, any regulated water under the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-2.2, or state open waters identified in a letter of interpretation issued under the Freshwater Wetlands Protection Act rules at N.J.A.C. 7:7A-3 by the New Jersey Department of Environmental Protection Division of Land Use Regulation shall also be considered surface water bodies.

THREATENED OR ENDANGERED SPECIES: A species identified pursuant to the Endangered and Nongame Species Conservation Act, N.J.S.A. 23:2A-1 et seq., the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. or the Endangered Plant Species List, N.J.A.C. 7:5C-5.1, and any subsequent amendments thereto.

TROUT MAINTENANCE WATER: A section of water designated as trout maintenance in the New Jersey Department of Environmental Protection's surface water quality standards at N.J.A.C. 7:9B.

TROUT PRODUCTION WATER: A section of water identified as trout production in the New Jersey Department of Environmental Protection's surface water quality standards at N.J.A.C. 7:9B.

WATER, FLUVIAL: A surface water body that is not influenced by the tide, i.e., a nontidal water.

WATER, TIDAL: A surface water body that is influenced by the gravitational interaction of the earth, the moon and the sun.

Establishment and protection of riparian zones and steep slopes.

(1)

Except as provided in Subsections C and D below, riparian zones adjacent to all surface water bodies, measured from the discernible bank landward, shall be protected from disturbance and shall be delineated as follows:

(a)

The riparian zone shall be 300 feet wide along both sides of any Category One water (C1 water), and all upstream tributaries situated within the same HUC14 watershed.

(b)

The riparian zone shall be 300 feet wide along both sides of the Duck Pond Run from the confluence with the Delaware and Raritan Canal upstream to Clarksville Road to the southeast and Meadow Road to the northeast. The three-hundred-foot-wide riparian zone shall not apply to the Little Bear Brook northeast of Meadow Road. The riparian zone for Duck Pond Run upstream from these limits shall be as established by the criteria of Subsection B(1)(a), (c) and (d) herein.

(c)

The riparian zone shall be 150 feet wide along both sides of the following waters not designated as C1 waters:

[1]

Any trout production water and all upstream waters (including tributaries);

[2]

Any trout maintenance water and all upstream waters (including tributaries) within one linear mile from the trout maintenance water, as measured along the length of the regulated water;

[3]

Any segment of a water flowing through an area that contains documented habitat for a threatened or endangered species of plant or animal, which is critically dependent on the surface water body for survival, and all upstream waters (including tributaries) within one linear mile as measured along the length of the regulated water; and

[4]

Any segment of a water flowing through an area that contains acid-producing soils to the extent so regulated by New Jersey Department of Environmental Protection or Soil Conservation District standards.

(d)

For all other surface water bodies, a minimum riparian zone of 50 feet wide shall be maintained along both sides of the water except as modified to 200 feet from the center line of any stream by § 200-228 of Article XXXI or as required by any other provisions of Article XXXI.

(2)

If a discernible bank is not present along a surface water body, the portion of the riparian zone that lies outside the surface water body is measured landward as follows:

(a)

Along a linear fluvial or tidal water, such as a stream, the riparian zone is measured landward of the feature's center line;

(b)

Along a nonlinear fluvial water, such as a lake or pond, the riparian zone is measured landward of the normal water surface limit;

(c)

Along a nonlinear tidal water, such as a bay or inlet, the riparian zone is measured landward of the mean high water line; and

(d)

Along an amorphously shaped feature such as a wetland complex, through which water flows but which lacks a discernible channel, the riparian zone is measured landward of the feature's center line.

(3)

The applicant or designated representative shall be responsible for the initial determination of the presence of a riparian zone on a site, and for identifying the area of the riparian zone on any plan submitted to the Township of West Windsor in conjunction with an application for a construction permit, subdivision, land development, or other improvement that requires plan submissions or permits. This initial determination shall be subject to review and approval by the municipal engineer, or the Mayor's appointed representative, and, where required by state regulation, the New Jersey Department of Environmental Protection.

(4)

Establishment of steep slope limits. The applicant shall demonstrate, through site plans depicting proposed development and topography, that new disturbance is not located in areas of steep slopes. For steep slopes, any disturbance shall be prohibited except as provided below:

(a)

Redevelopment within the limits of existing impervious materials.

(b)

New disturbance necessary to protect public health, safety, or welfare, such as necessary linear development with no feasible alternative; to provide an environmental benefit, such as remediation of a contaminated site; to prevent extraordinary hardship to the property owner peculiar to the property; or to prevent extraordinary hardship, provided the hardship was not created by the property owner, that would not permit a minimum economically viable use of the property based upon reasonable investment. For example, redevelopment, within the footprint of existing impervious materials should be allowed to support efforts to revitalize development that has fallen into disrepair.

(c)

Temporary disturbance (no more than 12 months) to permit construction adjacent to a steep slope, provided that sufficient provisions to control and prevent erosion during the temporary disturbance period and restoration of the steep slope occurs immediately upon completion of the construction of those improvements adjacent to the steep slope even if other nearby construction is not complete.

Variances. To the extent allowed by the stormwater management rules (N.J.A.C. 7:8) and/or the Flood Hazard Area Control Act rules (N.J.A.C. 7:13), new disturbances for projects or activities in the riparian zone established by this section may be allowed through the Zoning Board of Adjustment or the Board of Jurisdiction review and approval of a variance, provided the disturbance is proposed to be located on a preexisting lot (existing as of the effective date of this section) when there is insufficient room outside the riparian zone for the proposed use otherwise permitted by the underlying zoning; there is no other reasonable or prudent alternative to placement in the riparian zone, including obtaining variances from setback or other requirements that would allow conformance with the riparian zone requirements; and upon proof by virtue of submission of appropriate maps, drawings, reports and testimony, that the disturbance is:

(1)

Necessary to protect public health, safety or welfare;

(2)

To provide an environmental benefit;

(3)

To prevent extraordinary hardship on the property owner when such hardship is peculiar to the property; or

(4)

To prevent extraordinary hardship, provided the hardship was not created by the property owner, by not allowing a minimum economically viable use of the property based upon reasonable investment.

Exceptions. To the extent allowed under the Stormwater Management rules (N.J.A.C. 7:8) and the Flood Hazard Area Control Act rules (N.J.A.C. 7:13) and subject to review and approval by the New Jersey Department of Environmental Protection to the extent required by those rules, the following disturbances for projects or activities in the riparian zone established by this section are allowed:

(1)

Redevelopment within the limits of existing impervious surfaces;

(2)

Linear development with no feasible alternative route;

(3)

Disturbance that is in accordance with a stream corridor restoration or stream bank stabilization plan or project approved by the New Jersey Department of Environmental Protection;

(4)

Disturbance necessary to provide for public pedestrian access or water-dependent recreation that meets the requirements of the Freshwater Wetlands Protection Act rules, N.J.A.C. 7:7A, the Flood Hazard Area Control Act rules, N.J.A.C. 7:13, or the Coastal Zone Management rules, N.J.A.C. 7:7E; or

(5)

Disturbance with no feasible alternative required for the remediation of hazardous substances performed with New Jersey Department of Environmental Protection or federal oversight pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11a et seq., or the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq.

Appeals, conflicts and severability.

(1)

Any party aggrieved by the location of the riparian zone boundary determination under this section may appeal to the Zoning Officer under the provisions of this section. The party contesting the location of the riparian zone boundary shall have the burden of proof in case of any such appeal.

(2)

Any party aggrieved by any determination or decision of the Zoning Officer under this section may appeal to the Zoning Board of Adjustment of the Township of West Windsor. The party contesting the determination or decision shall have the burden of proof in case of any such appeal.

(3)

Conflicts: All other ordinances, parts of ordinances, that are inconsistent or in conflict with this section are hereby superseded to the extent of any inconsistency or conflict, and the provisions of this section shall apply.

(4)

Severability:

(a)

Interpretation: This section shall be so construed as to avoid conflict with any provision of New Jersey or federal law.

(b)

Notwithstanding that any provision of this section is held to be invalid or unconstitutional by a court of competent jurisdiction, all remaining provisions of this section shall continue to be of full force and effect.

Enforcement. A prompt investigation shall be made by the Zoning Officer of any person or entity believed to be in violation hereof. If, upon inspection, a condition which is in violation of this section is discovered, a civil action in the Special Civil Part of the Superior Court, or in the Superior Court, if the primary relief sought is injunctive or if penalties may exceed the jurisdictional limit of the Special Civil Part, by the filing and serving of appropriate process. Nothing in this section shall be construed to preclude the right of the Township of West Windsor, pursuant to N.J.S.A. 26:3A2-25, to initiate legal proceedings hereunder in Municipal Court. The violation of any section or subsection of this section shall constitute a separate and distinct offense independent of the violation of any other section or subsection, or of any order issued pursuant to this section, and shall be subject to the provisions of § 200-254 of Article XXXII.