N.J. Admin. Code § 7:38-3.8

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

Section 7:38-3.8 - Steep slopes

(a) A major Highlands development on a steep slope shall meet the requirements of this section.

(b) The percent of slope (rise in feet per horizontal distance) shall be established by measurement of distance perpendicular to the contour of the slope. The percent of slope shall be calculated for each two-foot contour interval. For example, any location on the site where there is a one-foot rise over a 10-foot horizontal run constitutes a 10 percent slope; a 1.5 foot rise over a 10-foot horizontal run constitutes a 15 percent slope; a two-foot rise over a 10-foot horizontal run constitutes a 20 percent slope.

(c) Linear development as defined at 7:38-1.4 shall be permitted on a slope with a grade of 20 percent or greater provided that there is no feasible alternative for the linear development outside the steep slope. In order to demonstrate "no feasible alternative for linear development," the applicant shall demonstrate that there is no other location, design and/or configuration for the proposed linear development that would reduce or eliminate the disturbance to a slope with a grade of 20 percent or greater. The additional limitations at (c)1 and 2 below apply for proposed linear development that would provide access to an otherwise developable lot.

1. The proposed linear development is the only point of access for roadways or utilities to an otherwise developable site;

2. Shared driveways are used to the maximum extent possible to access multiple lots, especially in areas containing steep slopes, Highlands open water or Highlands open water buffers; and

3. For a driveway, the applicant shall, in addition, demonstrate that:

i. The applicant has made a good faith effort to transfer development rights for the lot pursuant to 13:20-13, and has not obtained a commitment from the Highlands Council or a receiving zone municipality to purchase said development rights;

ii. The lot has been offered for sale at an amount no greater than the specific fair market value to all property owners within 200 feet of the lot, and to the land conservancies, environmental organizations, the Highlands Council and all other government agencies on a list provided by the Department, at an amount determined in compliance with N.J.S.A. 13:8C-26j or 13:8C-38j, as applicable by letter sent by certified mail, return receipt requested, with a copy to the Highlands Council, using the form provided by the Department, disclosing the location on the lot of all Highlands resource areas as defined in 7:38-1.4 and stating that an application to develop the lot has been filed and enclosing a copy of a fair market value appraisal, performed by a State-licensed appraiser based on the minimum beneficial economically viable use of the property allowable under local law; and

iii. No reasonable offer for the lot has been received; and

iv. Documentation for (c)4i through iii above shall include:

(1) A copy of each letter that the applicant sent under this paragraph;

(2) A copy of all responses received. Each response shall be submitted to the Department within 15 days after the applicant's receipt of the response;

(3) A list of the names and addresses of all owners of real property within 200 feet of the lot, as certified by the municipality, including owners of easements as shown on the tax duplicate;

(4) Receipts indicating the letters were sent by certified mail;

(5) For submittal to all property owners within 200 feet, a copy of the fair market value appraisal required under (c)4ii above; and

(6) A copy of a written response or a resolution from the Highlands Council demonstrating that it has considered and rejected the offer;

4. An alternative shall not be excluded from consideration under this provision merely because it includes or requires an area not owned by the applicant which could reasonably be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed linear development; and

5. After consideration of the information required in (c)1 through 4 above, the Department shall not issue an HPAA under this section if an applicant has refused a fair market value offer to purchase the property for which the driveway linear development is sought, or if the Department finds that there is an alternative to the proposed linear development.

(d) For a steep slope with a grade greater than 10 percent but less than 20 percent:

1. If the steep slope is a forest as defined at 7:38-1.4, linear development as defined at 7:38-1.4 shall be permitted if there is no feasible alternative for the linear development outside the steep slope;

2. If the steep slope is not a forest and the appropriate Soil Survey for the onsite soil series and percent slope states that the soil capability class of the soil is III or higher or the soil capability class and subclass are IIe or IIs, linear development shall be permitted provided that there is no feasible alternative for the linear development outside the steep slope; or

3. If the steep slope is not a forest and the appropriate Soil Survey for the onsite soil series and percent slope states that the soil capability class is I or the soil capability class and subclass is IIw, major Highlands development shall be permitted provided:

i. The proposed development meets all other standards in this chapter; and

ii. The applicant demonstrates that there is no other location, design and/or configuration for the proposed development that would reduce or eliminate the disturbance to steep slopes and still fulfill the basic purpose of the proposed development.

N.J. Admin. Code § 7:38-3.8

Amended by R.2006 d.420, effective 12/4/2006.
See: 37 N.J.R. 4767(a), 38 N.J.R. 5011(a).
Rewrote (c); in (d)2, inserted "the soil capability class and subclass are"; in (d)3, inserted "the soil capability class and subclass is" and "major Highlands"; in (d)3i, substituted "development" for "activity".