N.J. Admin. Code § 7:38-9.6

Current through Register Vol. 56, No. 17, September 3, 2024

Section 7:38-9.6 - Additional application requirements for a Highlands Preservation Area Approval with waiver

(a) Before submitting an application for an HPAA with waiver, all applicants shall request and attend a pre-application meeting conducted in accordance with N.J.A.C. 7:38-8.

(b) An administratively complete application for an HPAA with waiver shall contain:

1. All of the information required in 7:38-9.5;

2. An analysis describing all alternatives to the proposed project which would reduce each impact of the project as listed in 7:38-6.2(a) and the reasons the applicant did not adopt that alternative;

3. A description of the source of water or waste water disposal that would be used by development if the waiver is granted;

4. A request for a specific waiver in accordance with 7:38-6.4(a);

5. A detailed explanation why the proposed activity meets the criteria for a waiver in 7:38-6.4(a);

6. A detailed description of the specific HPAA requirement for which a waiver is sought, and a comparison of the HPAA standard with the level of compliance the proposed development provides (for example, "7:38-3.5 limits a development to a maximum of three percent impervious coverage whereas the proposed project requires a total of four percent");

7. An explanation how the proposed activity satisfies each of the remaining HPAA standards at N.J.A.C. 7:38-3;

8. A detailed explanation why the proposed activity satisfies the standards at 7:38-6.2(a); and

9. Documents showing the conclusion of an applicant's legal challenges, if any, to the Department's decision on the application for an HPAA under the rules as strictly applied, including:

i. The Department decision on the HPAA application made in accordance with the rules as strictly applied;

ii. The Commissioner's Final Decision granting or denying the HPAA application following the applicant's administrative challenge to the Department's findings of fact and/or application of the rules; and

iii. All court orders, consent orders, and decisions concerning the Commissioner's Final Decision including, but not limited to, orders summarily dismissing the appeal.

(c) In addition to the requirements listed in (b) above, applicants with proposed projects determined inconsistent with a Water Quality Management Plan (WQMP) as a result of the Highlands Applicability Determination or through a review of the information submitted under 7:38-9.5(a)4 for an HPAA, shall submit:

1. A request for an areawide WQMP amendment;

2. A copy of the Highlands Applicability Determination application or of the information required under 7:38-9.2(b)3 and 4 and 9.2(c);

3. The name of the areawide WQMP to be amended and a list of the provisions of the WQMP that require amendment;

4. New or revised text, tables and maps to replace or augment text, tables and maps that are in the currently adopted areawide WQMP that will be affected as a result of the amendment; and

5. Adequate copies of the updated materials to revise areawide WQMPs in the possession of the Department, designated planning agencies, and wastewater management planning agencies.

(d) In addition to the requirements listed in (b) above, an application for new or modified water supply diversion privileges that would result in a diversion of greater than 50,000 gallons of water per day under 7:38-2.4 shall provide the information required at 7:38-9.5(b) through (f).

(e) In addition to the requirements listed in (b) above, an applicant for a waiver of a requirement for an HPAA to project public health and safety in accordance with 7:38-6.5 shall submit:

1. Information describing the exact nature of the proposed project;

2. A statement describing how or why the proposed project will satisfy the requirements for a health and safety waiver; and

3. A mitigation proposal that complies with N.J.A.C. 7:7A-15, to offset the impacts of the project on freshwater wetlands and/or State open waters if they comprise any of the Highlands open water on the site that will be affected by the proposal.

(f) In order to obtain Department-designation of a brownfield in accordance with N.J.A.C. 7:38-6.6, all applicants shall provide an HRAD obtained in accordance with the requirements at 7:38-9.4. In addition, the following information is required:

1. For a designation in accordance with N.J.A.C. 7:38-6.6(b)1:

i. A site plan certified by a licensed New Jersey Professional Land Surveyor showing the limit of the waste and buffers, as required by the Solid Waste Management Act, 13:1E-1, and areas legally disturbed as of August 10, 2004;

ii. Documentation that the site meets the definition of sanitary landfill facilities as defined at 13:1E-1 in accordance with the following:

(1) For landfills that ceased operation on May 6, 1970 or later, a copy of a registration or permit issued by the Department; or

(2) For landfills that ceased operation prior to May 6, 1970 that were not issued a permit by the Department:

(A) Copies of approvals from the local government evidencing the operation of the landfill; or

(B) Copies of landfill inspection reports from the health department; or

(3) For landfills lacking the above documentation, an investigation report prepared by a licensed professional engineer documenting the presence of the landfill through the performance of test pits;

2. For a designation in accordance with 7:38-6.6(b)2:

i. A copy of the final remediation document for the entire site;

ii. A summary of the remedial action report completed prior to the issuance of the final remediation document that confirms the presence of contamination onsite and documents the current or previous use as a commercial or industrial site;

iii. Certification that no discharge of a hazardous substance has occurred onsite since the date of the final remediation document issued pursuant to the Administrative Requirements for the Remediation of Contaminated Sites rules, at 7:26C-1.6;

iv. A site plan certified by a licensed New Jersey Professional Land Surveyor showing areas legally disturbed as of August 10, 2004, and areas disturbed due to remediation activities;

3. For a designation in accordance with 7:38-6.6(b)3:

i. A Preliminary Assessment and Site Investigation (PA/SI) confirming the presence of contamination on the site and documenting the current or previous use as a commercial or industrial site, or certification from the applicant of their intent to conduct a PA/SI, and a proposed schedule and SI workplan;

ii. A site plan certified by a licensed New Jersey Professional Land Surveyor showing:

(1) Areas legally disturbed as of August 10, 2004;

(2) The extent of confirmed soil contamination known at the time of application; and

(3) Areas disturbed due to remediation activities;

4. For a change in designation in accordance with 7:38-6.6(i), the applicant shall provide:

i. Documentation that the Highlands Council has provided notice and the opportunity for public comment on the proposed change in designation; and

ii. A document and/or copy of the public record where the Highlands Council considered the impacts of the proposed change on each Highlands resource area and made the determination that the proposed modification would not result in a significant impact to any Highlands resource area;

5. For expansion of a Highlands brownfield designation in accordance with 7:38-6.6(j):

i. Documentation from the Department confirming designation of the site as a Highlands brownfield and the boundaries of the designated site; and

ii. Documentation obtained during the remediation process confirming contamination in areas of the site not known during the designation process and verified by the Department in accordance with the Technical Requirements for Site Remediation, N.J.A.C. 7:26E.

(g) In order to obtain a waiver for redevelopment based upon a Department-designated brownfield, in accordance with N.J.A.C. 7:38-6.6, all applicants shall provide:

1. The requirements listed in (b) above;

2. Documentation from the Department confirming designation of the site as a Highlands brownfield;

3. Documentation from the Highlands Council that the site has been designated for redevelopment;

4. A stormwater management plan in accordance with N.J.A.C. 7:8 that satisfies the requirements at 7:38-6.6(k)6;

5. A mitigation proposal that complies with N.J.A.C. 7:7A-15, to offset the impacts of the project on freshwater wetlands and/or State open waters if they comprise any or all of the Highlands open water on the site to be affected by the proposal; and

6. Compliance with the requirements at 7:38-6.6 (k)7, if applicable, and a binding conservation restriction that satisfies the requirements at 7:38-6.3.

(h) In addition to the requirements at (g) above, the following information is required to obtain a waiver for redevelopment based upon a Department-designated brownfield:

1. For a waiver based upon a designation in accordance with 7:38-6.6(b)1 for a landfill that ceased operation prior to January 1, 1982:

i. A Closure Plan approved by the Department, pursuant to the Solid Waste Rules, 7:26-2A.9; and

ii. A Remedial Action Workplan approved by the Department or a licensed site remediation professional, pursuant to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E-6;

2. For a waiver based upon a designation in accordance with 7:38-6.6(b)1 for a landfill that ceased operation on January 1, 1982 or later, a Closure and Post-Closure Plan approved by the Department, pursuant to the Solid Waste Rules, N.J.A.C. 7:26-2A.9;

3. For a waiver based upon designation in accordance with 7:38-6.6(b)2, certification that no discharge of a hazardous substance has occurred on the site since the date of the final remediation document, pursuant to the Administrative Requirements for the Remediation of Contaminated Sites rules, at 7:26C-1.6;

4. For a waiver based upon a designation in accordance with 7:38-6.6(b)3, evidence documenting that remediation is being conducted pursuant to the Administrative Requirements for the Remediation of Contaminated Sites rules, N.J.A.C. 7:26C, or the Industrial Sites Recovery Act rules, N.J.A.C. 7:26B, as applicable, final remediation document pursuant to N.J.A.C. 7:26C-6.

(i) In addition to the requirements listed in (b) above, an applicant for a waiver of a requirement for an HPAA to permit redevelopment of a site comprised of 70 percent or more impervious surfaces, in accordance with 7:38-6.7, shall provide the following information:

1. A site plan certified by a licensed New Jersey Professional Land Surveyor depicting the scope of the impervious cover in relation to the proposed project;

2. Documentation from the Highlands Council confirming that the site contained 70 percent impervious coverage on August 10, 2004;

3. Documentation from the Highlands Council that the site has been designated for redevelopment;

4. A stormwater management plan in accordance with N.J.A.C. 7:8 that satisfies the requirements at 7:38-6.6 (k)6;

5. A mitigation proposal that complies with N.J.A.C. 7:7A-15, to offset the impacts of the project on freshwater wetlands and/or State open waters if they comprise any or all of the Highlands open water on the site to be affected by the proposal; and

6. Compliance with the requirements at 7:38-6.6(k)7, if applicable, and a binding conservation restriction that satisfies the requirements at 7:38-6.3.

(j) In addition to the requirements listed in (b) above, an applicant for a waiver of a requirement for an HPAA to avoid taking of property without just compensation, in accordance with 7:38-6.8, shall provide the following information:

1. Document(s) showing when the property as a whole, as defined at 7:38-1.4, was acquired, the purchase price of the property as a whole and the instrument which documents the applicant's real property interest;

2. Document(s) showing the amount, nature, and date of any investments made to maintain and/or develop the property as a whole, other than the purchase price;

3. A zoning study prepared and certified by a New Jersey licensed professional including a statement that the development plan was permissible under municipal land use codes in effect at the time of purchase and those currently in effect;

4. A development plan depicting the project which the applicant claims provides a minimum beneficial economically viable use;

5. Information and/or certifications regarding the presence or absence of endangered or threatened species habitat, historic or archaeological resources, steep slopes, Highlands open waters or other features on the site relevant to determining compliance with the requirements of this chapter;

6. A proposed conservation restriction that meets the requirements of N.J.A.C. 7:38-6.3;

7. A mitigation proposal that complies with N.J.A.C. 7:7A-15, to offset the impacts of the project on freshwater wetlands and/or State open waters if they comprise any or all of the Highlands open water on the site that will be affected by the proposal;

8. Documentation that the proposed project will cause the minimum possible environmental impact to Highlands resources, while providing a minimum beneficial economically viable use of the property; and

9. Documents showing the conclusion of any appeals of the Department's HPAA decision under the rules as strictly applied including:

i. The Department decision on the HPAA application made in accordance with the rules as strictly applied;

ii. The Commissioner's Final Decision granting or denying the HPAA application following an administrative challenge to the Department finding of facts or application of the rules; and

iii. All court orders and decisions concerning the Commissioner's Final Decision including, but not limited to, orders summarily dismissing the appeal.

(k) In addition to the requirements listed in (b) above, an applicant for a waiver of a requirement for an HPAA to construct a 100 percent affordable housing development, in accordance with 7:38-6.9, shall provide a letter from the township attorney certifying that the proposed development is comprised of 100 percent affordable housing and is included in the municipality's Fair Share Plan.

N.J. Admin. Code § 7:38-9.6

Amended by R.2006 d.420, effective 12/4/2006.
See: 37 N.J.R. 4767(a), 38 N.J.R. 5011(a).
Rewrote the section.
Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
See: 41 N.J.R. 4467(a).
In (f)2i, substituted "the final remediation document" for "a No Further Action (NFA) letter" and deleted "issued by the Department" following "site"; in (f)2ii and (h)3, substituted "final remediation document" for "NFA letter"; in (f)2iii and (h)3, substituted "Administrative Requirements for" for "Department Oversight of" and "rules" for "rule", and updated the N.J.A.C. reference; in (f)2iii, substituted "final remediation document issued" for "NFA letter"; in (h)1ii, inserted "or a licensed site remediation professional"; and rewrote (h)4.
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 without change.