N.J. Admin. Code § 7:38-3.10

Current through Register Vol. 56, No. 19, October 7, 2024

Section 7:38-3.10 - Historic and archaeological areas

(a) Historic and archaeological areas are those historic or archaeological properties that are listed or are eligible for listing on the New Jersey or National Register of Historic Places pursuant to 7:4-2.3.

(b) An HPAA application for a proposed regulated activity as described at (b)1 through 4 below shall include an intensive-level architectural survey completed by an architectural historian whose qualifications meet the Secretary of the Interior's Professional Qualifications Standards and related guidance as part of the larger Secretary of the Interior's Standards and Guidelines for Archaeology and Historic Preservation as referenced at 36 CFR 61, incorporated herein by reference. Guidance regarding intensive-level architectural surveys is available at the State Historic Preservation Office's website at www.state.nj.us/dep/hpo/1identify/gaspart1.pdf.

1. A proposed regulated activity within or adjacent to a site or sites containing known historic or archaeological properties, based upon information contained within the application, or as identified on copies of historic property maps on file at the Department's Historic Preservation Office;

2. A proposed regulated activity on a site for which available maps, photographs, or other information, or observations made during a site visit indicate the presence of buildings, structures, or ruins over 50 years old within the project area;

3. A proposed regulated activity including new, replacement, reconstructed, or rehabilitated bridges or culverts; and/or

4. A proposed regulated activity on a site where citizens, local units of government, historic preservation organizations, or others have indicated the possible presence of historic or archaeological properties.

(c) An HPAA application for a proposed regulated activity as described at (c)1 through 5 below shall contain a Phase I (identification of resources) archaeological survey completed by an archaeologist whose qualifications meet the Secretary of the Interior's Professional Qualifications Standards and related guidance as part of the larger Secretary of the Interior's Standards and Guidelines for Archaeology and Historic Preservation as referenced in 36 CFR 61, incorporated herein by reference:

1. A proposed regulated activity within or adjacent to a site containing known historic or archaeological properties, based upon information contained within the HPAA application or as identified on copies of historic property maps on file at the Department's Historic Preservation Office or the New Jersey State Museum;

2. A proposed regulated activity on a site situated wholly or partially within the floodplain as defined at N.J.A.C. 7:13 or wholly or partially within 1,000 feet of the following waterways, whichever is greater:

i. Pompton River;

ii. Pequannock River;

iii. Wanaque River;

iv. Ramapo River;

v. Whippany River;

vi. Rockaway River;

vii. Musconetcong River;

viii. Delaware River;

ix. Wallkill River;

x. North Branch of the Raritan River;

xi. South Branch of the Raritan River;

xii. Lamington River;

xiii. Lopatcong Creek;

xiv. Pohatcong Creek; or

xv. Raritan River;

3. A proposed regulated activity on a site that includes a permanent Highlands open water (for example, a wetland, pond, lake, river or perennial stream) or that is located wholly or partially within 500 feet of a permanent Highlands open water, except when the waterway is listed at (c)2 above, in which case (c)2 above governs;

4. A proposed regulated activity on a site for which available maps, photographs, or other information, or observations made during a site visit indicate the presence of buildings, structures, or ruins over 100 years old that could potentially be affected by the proposed regulated activity; or

5. A proposed regulated activity or site about which citizens, local units of government, historic preservation organizations, or others entities have indicated the possible presence of archaeological properties or sites within or adjacent to the regulated activity or its site.

(d) If an archaeological property or site is identified in the Phase I archaeological survey under (c) above, a Phase II (evaluation of resource eligibility) archaeological survey shall be submitted as part of the application for an HPAA.

(e) Phase I and II surveys and accompanying reports submitted for the purposes of this section shall conform with the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, 48 C.F.R. 44716, incorporated herein by reference.

(f) A proposed regulated activity shall be deemed to not have an impact to an historic property if the Department determines the regulated activity conforms with the Secretary of the Interior's Standards for the Treatment of Historic Properties, 36 CFR 68 et seq., incorporated herein by reference. The Standards are available at www.state.nj.us/dep/hpo or www.nps.gov.

(g) A proposed regulated activity shall be deemed to not have an impact to an archaeological area identified in a Phase II survey under (d) above if the Department determines:

1. The proposed regulated activity does not involve ground excavation; or

2. The proposed regulated activity involves ground excavation or disturbance but will not physically disturb or intrude upon archaeological deposits on or eligible for inclusion in the New Jersey or National Register of Historic Places.

(h) If the Department determines that a proposed regulated activity will have an impact on historic or archaeological properties, the Department shall not issue an HPAA unless the applicant demonstrates that the proposed regulated activity would result in minimal practicable degradation of the historic or archaeological property. In order to demonstrate minimal practicable degradation, the applicant shall explore the following alternatives:

1. For an historic property:

i. Rehabilitation, according to the Secretary of the Interior's Standards for the Treatment of Historic Properties;

ii. Modified rehabilitation (preserving the character-defining elements of the property while introducing significant changes beyond those allowed by the Secretary of the Interior's Standards for the Treatment of Historic Properties);

iii. Transfer of development rights, if such program has been instituted by the municipality in which the historic property is located; and

iv. Any other mechanism that would preserve the historic property while accommodating the proposed regulated activity;

2. For an archaeological property or site:

i. Avoidance of the portion of the site that contains archaeological deposits and placement of a conservation restriction preserving the archaeological property and/or deposit if located on the site;

ii. Minimization of adverse impacts to the areas containing the most significant features or concentrations of artifacts and protecting such areas from development by a recorded conservation restriction and instituting archaeological data recovery on the portion of the property used for the proposed regulated activity;

iii. Transfer of development rights, if such program has been instituted by the municipality in which the archaeological area is located; and

iv. Any other mechanism that would preserve the archaeological property while accommodating the proposed regulated activity.

(i) To support the demonstration required under (h) above, the following information shall be prepared by a historic preservation professional whose qualifications meet the applicable Secretary of the Interior's Professional Qualification Standards, 48 C.F.R. 44716, and submitted to the Department as part of the application for an HPAA:

1. A description of the regulated activity including the goals of the regulated activity;

2. Identification of the historic property and its character-defining features and/or identification of the archaeological property and its significance;

3. A comprehensive description of the historic property's condition, including:

i. A narrative description of existing conditions; and

ii. Photographs with captions keyed to an elevation plan of the entire site, including all buildings, structures, and site features;

4. A clear statement of each alternative and the reasons for rejecting it, including each of the factors in (i)5 through 7 below as applicable;

5. If engineering concerns such as structural stability or load bearing capacity are a factor in an applicant's request to affect historic or archaeological properties, the applicant shall include engineering reports, prepared by a New Jersey licensed engineer with demonstrated experience working with similar historic resources;

6. For proposed regulated activities involving roads, culverts, and historic bridges that may affect historic and archaeological properties, the applicant shall submit the following data, as applicable:

i. Existing road limitations (for example, capacity, lane widths, geometry);

ii. Traffic counts/studies;

iii. Road classification;

iv. Design speeds;

v. Design hourly volume;

vi. Predicted levels of service; and

vii. Specific references to the applicable American Association of State Highway and Transportation Officials design tables;

7. If the poor physical condition of a historic building makes rehabilitation too expensive or technically impracticable, the applicant shall submit an evaluation of conditions and costs documented by an architect or engineer whose qualifications meet the Secretary of the Interior's Professional Qualification Standards and related guidance as part of the larger Secretary of the Interior's Standards and Guidelines for Archaeology and Historic Preservation as referenced in 36 CFR 61, incorporated herein by reference. The applicant shall include the following information, as applicable:

i. The specific section of the New Jersey Uniform Construction Code that affects the treatment of historic features or spaces, and a statement from the applicant regarding whether flexible application of the code for historic buildings has been sought or granted from the Construction Code official;

ii. If economic factors related to the protection of historic properties affect an aspect of the regulated activity or its whole design, a detailed and documented breakdown of the costs involved;

iii. A detailed explanation of any other regulatory requirement affecting aspects of the regulated activity's design, such as zoning; and

iv. Written comments received from interested parties including municipal historic preservation commissions, historical societies, and organizations that have a Statewide interest in the protection and preservation of cultural areas or a specialized interest in the specific historic or archaeological area being affected by the proposed regulated activity;

8. The public benefit and need for the proposed regulated activity;

9. A recommended finding of either "no adverse effect," or, "adverse effect;"

i. If the recommended finding is "adverse effect," the applicant shall describe all proposed mitigation measures including, but not limited to:

(1) A proposal for data recovery;

(2) Public outreach or interpretative information; and

(3) Documentation of buildings and/or structures prior to removal;

10. Communications from local officials and citizens expressing concerns and/or opinions regarding the project;

11. The resumes of all persons who prepared the materials and information required under this section; and

12. Any government agency correspondence related to the proposed regulated activity.

(j) The Department shall review any HPAA application containing Phase I and Phase II surveys in accordance with 7:4-8.1 through 8.3.

(k) If the Department finds that the regulated activity will have an impact on a historic or archaeological property but the proposed regulated activity is designed and implemented to achieve the minimum practicable degradation, the Department shall condition the HPAA upon the applicant providing mitigation in accordance with the provisions at (i)9 above adequate to compensate for the project's impact.

(l) If the Department finds that a proposed regulated activity will result in more than the minimum practicable degradation or impact to a historic or archaeological property, the HPAA application shall be denied. Demolition of a historic building or archaeological property solely to increase the available percentage of developable area on a lot constitutes more than minimum practicable degradation.

N.J. Admin. Code § 7:38-3.10

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