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Under New Jersey state law and the New Jersey State Constitution, municipal governments have broad police powers (the power to legislate in the common good) to protect local citizens. Municipalities also play a key role in our efforts to protect regional watersheds. Watersheds provide critical natural services that sustain or enrich our daily lives - drinking water supply, critical habitat for plants and animals, areas of natural beauty, water bodies for recreation and relaxation, and groundwater recharge areas, to name a few. Communities around the nation are turning to watershed protection to sustain the important ecological and community values that they stand to lose as they grow and develop without thoughtful or proactive planning. Regional cooperation is key to successful watershed protection.
This section outlines the legal authority a municipality has to enact a stream corridor ordinance. It is important to reach out to surrounding municipalities and to the county to ensure that the first steps in regional cooperation are begun.
Support for Stream Corridor Protection
Stream corridor protection has significant state, regional and municipal support in New Jersey. The State Development and Redevelopment Plan calls for the protection of large, continuous tracts and corridors of open space land which contain important biological resources and for the maintenance of stream corridor buffers adequate for the protection of water quality, wild life corridors and opportunities for recreational activities.
State support for stream corridor protection is strengthened by regulatory programs such as State Freshwater Wetlands Protection Regulations and State Flood Hazard Area Regulations For Stream Encroachment Permits, which govern all development activities within freshwater wetland areas, surface waters and flood hazard areas of the state. These regulations are complemented by water quality management initiatives such as Areawide Water Quality Management Plans, including Wastewater Management Plans, and New Jersey Pollution Discharge Elimination System Regulations, which primarily control pollutant input to streams through point sources.
At the regional level the Delaware and Raritan Canal Commission and Middlesex County have pioneered stream corridor protection efforts. The Regulations for the Review Zone of the Delaware and Raritan Canal State Park are well recognized and acknowledged as a model stream corridor protection initiative at the regional level. Middlesex County has shown its support through the release of a Water Quality Management Plan report in 1983 and a proposal for a Model Stream Corridor Protection Overlay Zone Ordinance in 1994. Both documents call for stream corridor protection ordinances and the establishment of stream corridor buffers.
Stream Corridor protection is an essential aspect of the intent and purposes stated under the New Jersey Municipal Land Use Law, which is the legal foundation for the municipal planning and zoning process. Certain municipalities have successfully incorporated ordinances related to stream corridor protection into their legislature. West Windsor Township was the first municipality in New Jersey to support stream corridor protection through a revision in a master plan. In 1977, the township incorporated a Green Belt Plan into its master plan, which calls for the preservation of environmentally critical areas along streams. The plan has never been challenged by a developer. Princeton Township in May 1996, established a Stream Corridor Buffer to regulate activities within the area extending a prescribed distance from a stream. However, in most municipalities regulatory management of stream corridors is limited to flood damage prevention ordinances, which, among other things, regulate conditional uses within flood prone areas.
Flood Hazard Area Control Act
State support for stream corridor protection is found in the Flood Hazard Area Control Act (N.J.S. 58:16A-50 et seq.), which creates state standards for identifying flood hazard areas and controlling flooding in these areas. The Act, implemented by the Flood Hazard Area Regulations (N.J.A.C. 7:13-1 et seq.), gives the New Jersey Department of Environmental Protection (NJDEP) exclusive jurisdiction to establish minimum standards for the adoption of local rules and regulations concerning the development and use of land within the flood fringe area. Stream Corridor ordinances supplement, and can help to satisfy, requirements of this Act. While exclusive jurisdiction is granted to the DEP to regulate these areas, municipalities may adopt more restrictive standards. The Act provides that within 12 months after the delineation of any flood hazard area, a municipality must adopt regulations concerning the development and use of land in the flood fringe area that at least conform with NJDEP standards (N.J.S. 58:16A-57). In addition, municipalities are allowed to adopt more restrictive requirements than the NJDEP for areas designated as floodways and flood plains (N.J.S. 58:16A-62).
The Flood Hazard Area Control Act does not apply to lands regulated by specific regulations or acts, such as most development in the review zone established by the Delaware and Raritan Canal Commission (N.J.A.C. 7:45-1 et seq.) or lands regulated pursuant to the Waterfront and Harbor Facilities Act (N.J.S. 12:5-1 et seq.), the Wetlands Act of 1970 (N.J.S. 13:9A-1 et seq.), or the Coastal Area Facility Review Act (CAFRA, N.J.S. 13:19-1 et seq.).
Freshwater Wetlands Protection Act
The Freshwater Wetlands Protection Act (N.J.S. 13:9B-1 et seq.), implemented by the Freshwater Wetlands Protection Regulations (N.J.A.C. 7:7A-1 et seq.), regulates almost all activities in freshwater wetlands and transition areas and seeks to promote the state's goal of preserving the purity and integrity of freshwater wetlands from random, unnecessary or undesirable alteration or disturbance. The Act does preempt municipal and county regulation of wetlands and transition areas; however, case law indicates that more restrictive local controls may be upheld. See Crow-New Jersey 32 Ltd. v. Township of Clinton, 718 Fed. Supp. 378 (D. N.J. 1989). It appears that the Act does not preempt or supercede laws that have a tangential or ancillary effect upon wetlands and transition areas and were predicated on different concerns, such as stream corridor ordinances. See N.J. Chapter of NAIOP v. Dept., 241 N.J. Super. 145 (App. Div.), certif. den. 122 N.J. 374 (1990) and Matter of Waterfront Development, 257 N.J. Super. 524 (App. Div. 1992). Note that lands within the jurisdiction of the Hackensack Meadowlands Development Commission and the Pinelands Commission are exempt from the Act.
Delaware and Raritan Canal Commission
At the regional level, the Delaware and Raritan Canal Commission has jurisdiction to review governmental and private projects within its "Review Zone" that have the potential to cause an adverse impact on the Delaware and Raritan Canal State Park (N.J.A.C. 7:45-1 et seq.). All major projects that fall within designated sections of the "Review Zone" are subject to review by the Commission for stream corridor preservation. The rule defines the stream corridor to include all the land on either side of the stream within the 100-year flood plain, plus a 100-foot wide buffer along the 100-year flood plain. This definition applies to streams designated in the rule plus all tributaries of the Millstone River. When the Commission determines that a municipality or county has adopted a stream corridor ordinance that is more stringent than the rule, then compliance with the stricter requirements in the local ordinance shall be required as a condition of the Commission's approval for the project. The provisions of the rule are meant as a minimum, not a maximum for stream corridor protection (N.J.A.C. 7:45-6.7).
To learn more about the Delaware and Raritan Canal Commission, visit their website: www.dandrcanal.com/drcc/index.html
New Jersey Municipal Land Use Law
The enabling statutes specifically written to govern zoning ordinances are found in the New Jersey Municipal Land Use Law (MLUL), which is the legal foundation for the municipal planning and zoning process. The stated purpose of this law is to encourage municipal action to guide the appropriate use or development of all lands in this state. Protection of water quality is an essential aspect of the intent and purposes of the MLUL. Included in the intent and purposes of the MLUL are the following:
- Secure safety from fire, flood, panic and other natural and manmade disasters. (MLUL C. 40:55D-2b.)
- Provide adequate light, air and open space. (MLUL C. 40:55D-2c.)
- Ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole. (MLUL C. 40:55D-2d.)
- Promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through the improper use of land. (MLUL C. 40: 55D-2j.)
- Designate and regulate areas subject to flooding. (MLUL C. 40:55D-65e.)
- To prevent, to the greatest extent feasible, an increase in non-point pollution, to maintain the integrity of stream channels for their biological functions, as well as drainage. (MLUL C. 40:55D-95)
- A utility service plan element analyzing the need for and showing the future general location of water supply and distribution facilities, drainage and flood control facilities, sewerage and waster treatment, solid waste disposal and provision for other related utilities, and including any storm water management plan (MLUL C.40:55D-28b(5))
There are two ways to keep an ordinance from being legally challenged. The first way is to ensure that the use in question is consistent with the master plan. The second is to build a "record" that demonstrates both the need for the ordinance and the thoughtfulness used in its design. Inclusion of a conservation plan element in the master plan that calls for the protection of the water supply, wetlands, rivers and other waters will establish a reasoned basis for the passage of a stream corridor ordinance. This principle applies to a municipality's authority to pass land use ordinances designed to protect the environment. Discussion of the two cases below helps demonstrate this principle.
In Kirby v. Township Committee of Bedminster, 341 N.J. Super. 276 (2000), a zoning ordinance was passed in part to preserve the environmental health of the municipality. The municipality rezoned a portion of the township from an R-3 Rural Residential Zone, which permitted one residence for every three acres, to an R-10 Rural Residential Zone, which permits one residence for every ten acres. The planning board determined that lower density would serve a number of resource protection objectives. The Township Committee also consulted the State Planning Commission (SPC) for its opinion on the rezoning. The SPC found that both Bedminster's Master Plan and the rezoning provisions were consistent with the State Development and Redevelopment Plan. The trial judge found the steps taken by the Township demonstrated "an orderly consideration of all the relevant material, consultation with experts, dialogue with Somerset and New Jersey planning officials, and solicitation of public input - all leading to the enactment of the R-10 zone." Kirby at 287. Like many zoning cases, Kirby demonstrates that a thorough record of the reasons for the zoning will make any ordinance more likely to withstand a challenge in court.
In Dock Watch Hollow Quarry Pit v. Township of Warren, 142 N.J. Super. 103 (1976), an ordinance regulating the operation of quarries within the Township was challenged. The quarry in question had been operating at the time the Township passed the ordinance and was declared a nonconforming use and allowed to continue operation. The owners of the quarry argued that because the quarry was already found to be a nonconforming use it was immune from any future zoning restrictions. The court rejected this argument, stating that "[n]onconforming uses are clearly subject to such police power regulations, including those designed for the preservation of the environment and the protection of ecological values." Dock Watch at 117. Thus, a municipality's discretion to exercise its police power to protect the public health and welfare of its residents is likely to be recognized by a court and that environmentally related ordinances could be found valid on these grounds.
To read the full text of New Jersey's Municipal Land Use Law, visit www.state.nj.us/osp/doc/law/mlul.pdf. (Adobe Acrobat software, which comes standard with almost all computers, is necessary to view this file. If you don't have Adobe Acrobat, it can be downloaded for free at www.adobe.com/products/acrobat)
State Development and Redevelopment Plan
Stream corridor protection has significant support in the State Development and Redevelopment Plan (SDRP). The SDRP calls for the protection and preservation of large, continuous tracts and corridors of open space land, which contain important biological resources, potentially through the establishment of greenway networks. Additionally, the SDRP calls for the maintenance of stream corridor buffers adequate for the protection of water quality, wild life corridors and opportunities for recreational activities. The SDRP also calls for the protection of stream and wetland systems through the use of coordinated planning efforts aimed at reducing sources of pollution and other adverse affects of development (Statewide Policy #11). The plan also identifies statewide policies such as protecting the natural function and quality of surface water in streams by establishing and maintaining vegetated buffers, along with identification and delineation of sensitive surface water resource systems to protect from negative impacts to flow and quality (Statewide Policy #12).
The following specific policies within the statewide policy support municipalities' adoption of stream corridor ordinances:
- Policy #8 Non-Point Source Pollution - Reduce and where feasible eliminate the volume of toxicity of pollution in surface and ground water from non-point sources.
- Policy #17 Identification and Delineation of Surface Water Systems - Identify and delineate headwaters, reservoirs and other sensitive surface water resource systems and manage activities in areas containing, or adjacent to, these systems to protect them from immediate or cumulative negative impacts to flow and quality.
- Policy #18 Buffer Areas - Establish and maintain appropriately vegetated buffers along streams, rivers, wetlands, reservoirs and scenic waterways to protect the natural functions and quality of surface water resources.
- Policy #19 Site Disturbance - Site disturbance should be minimized to prevent or reduce soil erosion, sedimentation, compaction and loss of native vegetation.
- Policy #26 Flood Plain Development and Redevelopment - Protect and enhance wetlands and avoid development and redevelopment in designated flood plains.
To read the full text of the State Development and Redevelopment Plan, visit the Office of Smart Growth's website: www.state.nj.us/osp/sdrp2.htm