[Added 10-19-2006 by Ord. No. 2006-35; amended 12-18-2008 by Ord. No. 2008-41]

A. Applicability. Projects subject to review as in § 220-147C shall comply with the requirements of Subsections B and C.

B. General maintenance.

(1) The design engineer shall prepare a maintenance plan for the stormwater management measures incorporated into the design of a major development.

(2) The maintenance plan shall contain specific preventative maintenance tasks and schedules; cost estimates, including estimated cost of sediment, debris, or trash removal; and the name, address, and telephone number of the person or persons responsible for preventative and corrective maintenance (including replacement). Maintenance guidelines for stormwater management measures are available in the New Jersey Stormwater Best Management Practices Manual. If the maintenance plan identifies a person other than the developer (for example, a public agency or homeowners' association) as having the responsibility for maintenance, the plan shall include documentation of such person's agreement to assume this responsibility, or of the developer's obligation to dedicate a stormwater management facility to such person under an applicable ordinance or regulation.

(3) Responsibility for maintenance shall not be assigned or transferred to the Township in a residential development or project. Responsibility for facilities located in commercial or industrial development sites shall be the owner of the site. A named individual shall be responsible for the safety and maintenance of said facility. The posting of a two-year maintenance guarantee in accordance with N.J.S.A. 40:55D-53 shall be required for all facilities not dedicated to the Township or other public agency.

(4) If the person responsible for maintenance identified under Subsection B(2) above is not a public agency, the maintenance plan and any future revisions based on Subsection B(7) below shall be recorded upon the deed of record for each property on which the maintenance described in the maintenance plan must be undertaken.

(5) Preventative and corrective maintenance shall be performed to maintain the function of the stormwater management measure, including repairs or replacement to the structure; removal of sediment, debris, or trash; restoration of eroded areas; snow and ice removal; fence repair or replacement; restoration of vegetation; and repair or replacement of nonvegetated linings.

(6) The person responsible for maintenance identified under Subsection B(2) above shall maintain a detailed log of all preventative and corrective maintenance for the structural stormwater management measures incorporated into the design of the development, including a record of all inspections and copies of all maintenance-related work orders. This log shall be made available for inspection at the request of the Township, county, or the Department.

(7) The person responsible for maintenance identified under Subsection B(2) above shall evaluate the effectiveness of the maintenance plan at least once per year and adjust the plan and the deed as needed.

(8) The person responsible for maintenance identified under Subsection B(2) above shall retain and make available, upon request by any public entity with administrative, health, environmental, or safety authority over the site, the maintenance plan and the documentation required by Subsection B(6) an (7) above.

(9) The requirements of Subsection B(3) an (4) do not apply to stormwater management facilities that are dedicated to and accepted by the municipality or another governmental agency.

(10) In the event that the stormwater management facility becomes a danger to public safety or public health, or if it is in need of maintenance or repair, the municipality shall so notify the responsible person in writing. Upon receipt of that notice, the responsible person shall have 14 days to effect maintenance and repair of the facility in a manner that is approved by the municipal engineer or his designee. The municipality, in its discretion, may extend the time allowed for effecting maintenance and repair for good cause. If the responsible person fails or refuses to perform such maintenance and repair, the municipality or county may immediately proceed to do so and shall bill the cost thereof to the responsible person.

C. Nothing in this section shall preclude the municipality in which the major development is located from requiring the posting of a performance or maintenance guarantee in accordance with N.J.S.A. 40:55D-53.

[Added 10-19-2006 by Ord. No. 2006-35; amended 12-18-2008 by Ord. No. 2008-41]

Any person who erects, constructs, alters, repairs, converts, maintains, or uses any building, structure or land in violation of §§ 220-147 through 220-158 shall be subject to the following penalties. Failure to comply with any provisions of these sections shall be considered a violation of the Coded Ordinances of the Township of Marlboro and shall be punishable by a fine of $1,000 or 90 days in jail, or both. Each day of such violation's continuance shall be considered as a separate offense and shall be separately punishable. These penalties shall not be the exclusive remedy available, and nothing in §§ 220-147 through 220-158 shall prevent an applicant from obtaining injunctive relief.

[Added 10-19-2006 by Ord. No. 2006-35; amended 12-18-2008 by Ord. No. 2008-41]

A. Standards.

(1) For the purposes of this section, "mitigation" shall incorporate the definition set forth in § 220-148 and shall include situations where the applicant has demonstrated the inability or impracticality of strict compliance with the stormwater management requirements set forth in N.J.A.C 7:8 in addition to the requirements set forth in §§ 220-147 through 220-158.

(2) The board having jurisdiction over an application requiring a stormwater management plan shall have the jurisdiction to grant a waiver from strict compliance with the performance requirements of §§ 220-147 through 220-158 or the stormwater management plan. The waiver may be granted where an applicant has demonstrated the inability or impracticality of strict compliance with §§ 220-147 through 220-158 and/or the stormwater management plan upon the following conditions. The applicant must demonstrate one of the following:

(a) An inability to apply any of the best management practices and methodologies as defined and approved herein and in the stormwater management plan, due to an extraordinary and exceptional situation uniquely affecting the subject property or structures thereon, resulting in a peculiar and exceptional practical difficulty or undue hardship; or

(b) That the purposes of §§ 220-147 through 220-158 and stormwater management plan can be advanced by a deviation from the best management practices and methodologies as defined and approved herein and in the stormwater management plan, where the benefits of such deviation substantially outweigh any detriment.

(3) In requesting a waiver as to any application, the applicant may submit as reasons for the waiver the site conditions of the proposed project, including soils types; thin soil cover; low permeability soils, and/or shallow depths to groundwater (high groundwater levels), unique conditions which would create an unsafe design, or conditions which would provide a detrimental impact to public health, welfare, or safety.

(4) The waiver cannot be granted due to conditions created by the applicant. If the applicant can comply with the requirements of §§ 220-147 through 220-158 and stormwater management plan through reducing the size of a project, the hardship is self-imposed, and therefore the Board lacks jurisdiction to grant any waiver under this section.

(5) The applicant must propose a suitable mitigation method through the submission of a mitigation plan which will conform as closely as possible to the design and performance standards of §§ 220-147 through 220-158, through structural or nonstructural stormwater management measures, governing stormwater quality, quantity, and groundwater recharge. Approval of a waiver or exemption from any one of the three stormwater design standard criteria which include groundwater recharge, water quality, and water quantity provides no guarantee that, if requested, an exemption or waiver will be granted for either or both of the remaining criteria.

(6) Supporting evidence for an exemption or waiver shall be prepared in the form of a stormwater management report which will be signed and sealed by a New Jersey licensed professional engineer. The report shall include at a minimum:

(a) Detailed hydrologic and hydraulic calculations identifying the sizing criteria for each BMP and the stormwater collection system based upon the anticipated peak flow and/or volume.

(b) A map of the planned project showing existing conditions with drainage boundaries and land features, including delineated wetlands, proposed improvements, including all BMPs, grading, utilities, impervious features, and landscaping.

(c) Construction details for each BMP with appropriate contact information.

B. Mitigation criteria. The mitigation requirements listed below offer a hierarchy of options that are intended to offset the effect on groundwater recharge, stormwater quantity control, and/or stormwater quality control to an equal or greater extent than was created by the granting of a waiver or exemption from the stormwater management requirements. The mitigation criteria are listed below in order of preference:

(1) Identify, design, and implement a compensating measure to mitigate impacts. The preferred option is to identify and develop a compensating mitigation project in the same drainage area as the proposed development. In these cases, the applicant will address the same issue within the design and performance standards for which the variance or exemption is being sought, and demonstrate that the proposed mitigating measures provide equal or greater compensation to offset the noncomplying aspect of the stormwater management system on site. The developer must also ensure the long-term maintenance of the project as outlined in Chapters 8 and 9 of the NJDEP Stormwater BMP Manual. If the Township agrees to control a new stormwater management facility, arrangement in the form of an escrow account will be made to stipulate the payment amount, schedule, and long-term responsibilities of the facility to ensure that it functions to capacity.

(2) Complete a project identified by the municipality as equivalent to the environmental impact created by the exemption or variance. If a suitable site cannot be located in the same drainage area as the proposed development, as discussed in Option 1, the mitigation project may provide measures that are not directly equivalent to the impacts for which the variance or exemption is being sought, but that addresses the same issue to an equal or greater extent. For example, if a variance is given because the eighty-percent TSS requirement has not been met, the selected project may address water quality impacts that increase the siltation of a water body within the applicable HUC14 subwatershed.

(a) If these criteria cannot be met on site, the Township has identified the retrofitting of existing basins as the primary mode for mitigation measures to follow. Through clearing sediment, expanding capacity, or bringing the basin into compliance with water quality standards, mitigation opportunities have the potential to significantly improve stormwater management issues that face Marlboro Township.

(b) As many of the developments in Marlboro were constructed with curb and gutter drainage, stormwater is often funneled and released directly into an adjoining water body. As these methods are contrary to the stormwater management BMPs outlined in the NJDEP's BMP Manual and endorsed through the adoption of the state's new stormwater regulations, the retrofitting of these basins can dramatically improve the Township's existing stormwater management infrastructure. Mitigation projects can utilize a number of BMPs to offset the stormwater management of a project that is unable to comply with the new design standards. However, these BMPs, which may include sand filters, vegetative filters, or the incorporation of a manufactured treatment device, among other possibilities, will be engineered and applied on a site-by-site basis. In general, the engineering necessary to determine the mitigative measure that is most suited for a particular basin is the responsibility of the applicant, and must be determined and submitted by the applicant along with the particular project's site plan. Marlboro has identified locations within the Deep Run watershed where BMPs can be utilized to improve stormwater management and reduce flooding. These locations, which have been identified by catchment area, offer developers specific options such as improving culverts, or upgrading infrastructure to use as mitigative alternatives. Applicants that are seeking waivers for development proposals located within the Deep Run watershed are strongly encouraged to reference the 10 Subwatershed Impact Assessment and Implementation Project Summary Tables that are included within the Identification and Evaluation of Impairments Within the Deep Run Watershed Report. Copies of the aforementioned report are available at the Township Clerk's office.

(3) Provide funding for municipal projects that would address existing stormwater impacts. The third and least preferable stormwater mitigation option is for the applicant to provide funding or partial funding for an environmental enhancement project that has been identified in the municipal stormwater management plan, or towards the development of a regional stormwater management plan. The contributed funds must be equal or greater than the cost to implement the required on-site stormwater measure for which relief is requested including the cost of land, easements, engineering design, and long-term maintenance. However, with this option, Marlboro Township, not the applicant, is ultimately responsible for the design, property acquisition, construction, construction management, maintenance (short-term and long-term) and follow-up study, unless that project and its prospective costs have been outlined within this mitigation plan. An applicant may also propose a mitigation project on a site that has not been identified in this mitigation plan. However, in each circumstance the selection of a mitigation project must incorporate the following requirements:

(a) The project must be within the same area that would contribute to the receptor impacted by that project. If there is no specific sensitive receptor impacted, then the location of the mitigation project may be located anywhere within the municipality, preferably at a location that would provide the greatest benefit.

(b) Legal authorization must be obtained to construct the project at the location selected. This includes the maintenance and any access needs for the project throughout its operation.

(c) The mitigation project should be located close to the original development project. If possible, the mitigation project should be located at a similar distance from the identified sensitive receptor. This distance should not be based on actual location, but on a similar hydraulic distance to the sensitive receptor. For example, if a project for which a waiver is obtained discharges to a tributary, but the closest location discharges to the main branch of a waterway, it may be more beneficial to identify a location discharging to the same tributary.

(d) It is preferable to have one location that addresses any and all of the performance standards waived, rather than one location for each performance standard.

(e) The project location must demonstrate no adverse impacts to other properties.

(f) For projects addressing the groundwater recharge performance standard, a mitigation project site upstream of the location of the actual project site is preferable to a downstream location.

(g) Mitigation projects that address stormwater runoff quantity can choose to provide storage for proposed increases in runoff volume, as opposed to a direct peak flow reduction.

(h) Mitigation projects that address stormwater runoff quality can choose to address another pollutant other than TSS, which has been demonstrated to be of particular concern, such as streams that have been listed as an impaired water body for other pollutants. However, care must be taken to ensure that waivers that are granted for the TSS requirements do not result in the impairment of an existing unimpaired area.

C. Requirements for mitigation projects.

(1) Whether the applicant is proposing the mitigation project, or Marlboro has identified the project within this mitigation plan, the following requirements for mitigation must be included in the project submission:

(a) Impact from noncompliance. The applicant must provide a table to show the required values, and the values provided in the project, and include an alternatives analysis that demonstrates that on-site compliance was maximized to the greatest extent practicable.

(b) Narrative and supporting information regarding the need for the waiver. The waiver cannot be granted for a condition that was created by the applicant. If the applicant can provide compliance with the stormwater rules through a reduction in the scope of the project, the applicant has created the condition and a waiver cannot be issued. The applicant must provide a discussion and supporting information of the site conditions that would not allow the construction of a stormwater management facility to provide compliance with these requirements, and/or if the denial of the application would impose an extraordinary hardship on the applicant brought about by circumstances peculiar to the subject property. The site conditions to be considered are soil type, the presence of karst geology, acid soils, a high groundwater table, unique conditions that would create an unsafe design, as well as conditions that may provide a detrimental impact to public health, welfare, and safety.

(c) Sensitive receptor: identify the sensitive receptor related to the performance standard for which a waiver is sought. Demonstrate that the mitigation site contributes to the same sensitive receptor.

(d) Design of the mitigation project: provide the design details of the mitigation project. This includes, but is not limited to, drawings, calculations, and other information needed to evaluate the mitigation project.

(e) Responsible party. The mitigation project submission must list the party or parties responsible for the construction or maintenance of the mitigation project. Documentation must be provided to demonstrate that the responsible party is aware of, has authority to perform, and accepts the responsibility for the construction and the maintenance of the mitigation project. Under no circumstances shall the responsible party be an individual single-family homeowner.

(f) Maintenance. The applicant must include a maintenance plan that addresses the maintenance criteria at N.J.A.C. 7:8-5 as part of a mitigation plan. In addition, if the maintenance responsibility is being transferred to Marlboro Township, or another entity, the entity responsible for the cost of the maintenance must be identified. Marlboro provides applicants with the option of conveying the mitigation project to the Township, provided that the applicant funds the cost of maintenance of the facility in perpetuity.

(g) Permits. The applicant is solely responsible to obtain any and all necessary local, state, or other applicable permits for the identified mitigation project or measure. The applicable permits must be obtained prior to the municipal approval of the project for which the mitigation is being sought.

(h) Construction. The applicant must demonstrate that the construction of the mitigation project coincides with the construction of the proposed project. A certificate of occupancy or final approval by the municipality for the application permit cannot be issued until the mitigation project or measure receives final approval. Any mitigation projects proposed by the municipality to offset the stormwater impacts of the Township's own projects must be completed within six months of the completion of the municipal project, in order to remain in compliance with Marlboro's NJPDES General Permit.

(2) In all instances the board having jurisdiction over the application shall have the power to impose additional conditions as may be appropriate under the circumstances of the application. The Board shall make specific findings of fact and conclusions consistent with § 220-147 showing the inability or impracticality of strict compliance with §§ 220-147 through 220-158 and the stormwater management plan and justifying the approval of the applicant's mitigation plan, in order to satisfy the reporting requirements of the municipality's NJPDES permit and other applicable state law requiring the submission of reports to any state or county review agency. The Board shall also have the power to require mitigation as to applications which have received waivers from the New Jersey Department of Environmental Protection.

A. An environmental impact report shall accompany all applications for major subdivision and site development plans and shall provide the information needed to evaluate the effects of the proposed development upon the environment and shall include data, be distributed, reviewed and passed upon by the approving board as follows.

B. The environmental impact report shall include:

(1) A description of the project complete with maps and drawings, including maps of the project site as it relates to the town and the region, how it is to be constructed and a construction schedule, and its location (site).

(2) An inventory of existing environmental conditions at the project site and surrounding region, including air and water quality, water supply, soils, geology, topography, vegetation, animal life, land use, aesthetics and history and consideration of additional factors, dependent on the sizes and type of project.

(3) A list of all licenses, permits and other approvals required by municipal, county or state law and the status of each. The approvals and permits should be required before final consideration of the site plan.

(4) An assessment of the environmental impact of the project described in Subsection B(1) upon the factors described in Subsection B(2), including an evaluation of the public costs of the project. The public costs include additional schools, roads, police, etc., and indirect costs, such as the loss of open space.

(5) A listing of all adverse environmental impacts, especially irreversible and irretrievable damage, that cannot be avoided.

(6) A list of alternatives to the project, including "no project," and the reasons for their acceptability or nonacceptability. Alternatives should consider both short- and long-term environmental effects of the project.

(7) A listing of steps proposed to minimize environmental damage to the site and region during construction and operation. The consideration of soil erosion, preservation of trees, protection of watercourses, protection of air resources and noise control are some factors to be considered here.

C. Waiver. Notwithstanding the foregoing, the approving board may, at the request of an applicant, waive the requirements for an environment impact report if sufficient evidence is submitted to support a conclusion that the proposed development will have a slight or negligible environmental impact. Portions of such requirements may likewise be waived upon a finding that the complete report need not be prepared in order to evaluate adequately the environmental impact of a particular project.

[Added 10-16-2008 by Ord. No. 2008-29]

A. Filing of report.

(1) Prior to any development application (including major or minor subdivision and site plan approvals) being deemed complete by the Township's administrative officer, a preliminary site investigation report and soil sampling report, as set forth in this section, shall be filed by the applicant.

(2) Exemptions. No applicant shall be required to submit a preliminary site investigation report and soil testing report for the following types of applications:

(a) Applications for signage;

(b) Applications for bulk variances in connection with decks, pools, and/or sheds for existing uses;

(c) Applications for minor subdivisions which create no new lots;

(d) Applications for site plan waivers;

(e) Applications making minor revisions to existing site plans;

(f) Applications involving open space and continued farming; and

(g) Applications for sites for which final approval has previously been granted.

(3) Notwithstanding the foregoing exemptions, a preliminary site investigation report and soil sampling report may be required at the direction of the respective land use board with jurisdiction over the application if the Planning or Zoning Board finds that, based upon historical data, there is reason to believe that the site is potentially contaminated.

B. Review of reports. The Township's Environmental Commission shall review the preliminary site investigation report and soil testing report and provide its recommendation to the board with jurisdiction over the application. In addition, the preliminary site investigation report and soil testing report shall be reviewed by the appropriate board professional who shall provide his or her recommendation to the board with jurisdiction over the application.

C. Requirements for reports. The reports shall be conducted and submitted in two parts.

(1) Preliminary site investigation report.

(a) First, the applicant shall submit a preliminary site investigation report that shall have been prepared within six months of the applicant's submission that provides historical information on the previous uses of the proposed site so that potential contaminants or areas of concern can be identified prior to any soil sampling. The preliminary site investigation report shall be based upon diligent inquiry by the applicant and at a minimum shall contain the following:

[1] Names of all present owners and operators, and all prior owners or operators of the site who have held an interest in the site in the last sixty (60) years.

[2] Dates of ownership for each owner.

[3] Dates of operation of each owner.

[4] Description of past agricultural or industrial use of the site.

[5] List of pesticides, herbicides, insecticides or other contaminants used or stored at the site.

[6] Approximate period of time of use or storage of pesticides, herbicides, insecticides or other contaminant(s), as the term "contaminant" is defined in N.J.A.C. 7:26E-1.8, at the site.

[7] Records relating to any past remedial activities.

[8] Copies of all present and prior sampling data.

[9] A scaled site plan or survey detailing lot/block numbers, property boundaries, buildings, storage or use areas for any pesticides, herbicides, insecticides or other contaminants, wetlands, streams, ponds, septic and cesspool systems, underground storage tanks, and inactive and active wells.

[10] Identification and delineation of all areas where nonindigenous fill materials were used on site.

[11] A delineation of any areas believed to be contaminated including identification of the contaminant(s) present.

(b) The Environmental Commission and board professionals shall review the preliminary site investigation report within 45 calendar days of receipt. Incomplete preliminary site investigation reports shall be returned to the applicant with comments for resubmittal. Following the acceptance of the preliminary site investigation report, the applicant shall submit a soil sampling report unless the administrative officer shall have waived the soil sampling report requirement based upon the recommendations of the Environmental Commission and board professionals that indicate that the applicant has satisfactorily demonstrated that the site has not historically been used for either agricultural or industrial uses resulting in contamination of the site.

(2) Soil sampling report.

(a) If the submittal of a Soil Sampling Report has not been waived pursuant to Subsection C(1), then a soil sampling report must be submitted that demonstrates that the sampling locations and sampling depths were biased towards areas of greatest potential contamination. If there is no basis for biasing sampling locations, one sample shall be taken every two acres. A minimum of one sample shall be taken at the proposed site. Sampling locations shall be identified on the site plan and affixed with GPS coordinates.

(b) Unless otherwise directed by the administrative officer, all samples shall be analyzed for lead and/or arsenic using USEPA Method SW-846-6010B, and a pesticide scan performed using USEPA Method SW-841-8081A. In the event additional contaminants are suspected to exist and/or identified in the preliminary site investigation report, the administrative officer may direct that appropriate analysis be performed using the applicable USEPA or NJDEP analytical protocol. The date(s) of the soil sampling event(s) must be provided, both by telephone and in writing, to the Township's Departments of Engineering, Planning and Zoning a minimum of 10 calendar days prior to the collection of the samples.

(c) The soil sampling report shall contain a table listing lead, arsenic, pesticides and other contaminants analyzed with the result of each parameter analyzed for each sample. An evaluation of each contaminant, including its potential impact upon groundwater or nearby surface waters shall be included in the report. All sampling and analytical work, remediation, quality assurance and laboratory methods must be conducted in accordance with the most recent NJDEP Field Sampling Procedures Manual protocol in accordance with N.J.A.C. 7:26E-l et seq., Technical Requirements for Site Remediation.

(d) In the event that a soil sampling report has not been submitted at the time that the application has been deemed complete, the board with jurisdiction over the application retains the authority to require that a soil sampling report be submitted by the applicant. The board with jurisdiction over the application may require a soil sampling report if it determines, based upon the records presented at the public hearing, and the testimony given, that there is reason to believe that the site is potentially contaminated. The board with jurisdiction over the application may require that the soil sampling report be submitted prior to making a final determination on the merits of the application, or it may require that the soil sampling report be submitted as a condition of approval of the application.

D. Proof of remedial action.

(1) In the event that remedial action is required, or has occurred, as a result of the presence of contaminants at the site in excess of the NJDEP soil or groundwater cleanup criteria, the applicant shall provide the following documentations with its application:

(a) Remedial action work plans or remedial action reports submitted to the NJDEP in accordance with the applicable technical regulations for site remediation.

(b) Copies of any correspondence from NJDEP indicating a deficiency with any plans or reports submitted.

(c) Copies of the no further action letter issued by NJDEP, including any conditions imposed by NJDEP thereto.

(d) Copies of any filed deed notices applicable to the site.

(2) The Board with jurisdiction over the application may condition the approval of any development upon the requirement that a full site no further action letter be obtained from the NJDEP pursuant to N.J.S.A. 40:48-2.57.