If our homes are our castles, we should be able to do pretty much anything we want there, right? Well, not exactly. There are these pesky things called ordinances and regulations that can influence our rights by restricting them. This may be so even if we are just moving dirt around on our lots. What if we want to do some landscaping? How about our own personal dumping site?
A battle between neighbors has been brewing for years in northern New Jersey over one property owner’s insistence on his right to create what looks from online photos and videos to be a construction material landfill at the rear of his four-plus acre residentially-zoned lot. The wooded property fronts on a residential road that culminates in a cul-de-sac.
This isn’t just any pile of dirt and debris. It is reputedly about 75 feet high, brought in by innumerable dump trucks (neighbors report counting 15 to 30 trucks daily) and testing positive for volatile organic compounds, PCBs, and pesticides for well over allowable residential amounts. You can watch it grow on Google Earth by using the “historical imagery” slider after searching for 3 Silver Spruce Drive, Vernon, NJ.
I’ve checked the ordinances for my own township, which are fairly typical. Aside from regulations addressing wetlands, stormwater and floodplain management, on-site sewage disposal (septic) systems, steep slopes, and support of adjacent properties when excavating, I don’t see anything about limits of bringing soil into any site. The closest is residential zoning specifying lot size, setbacks, limit of impervious surface, and similar constraints—generally consistent with what I encounter elsewhere.
Vernon, the affected township in Sussex County, has more rural area than my township. Besides the usual ordinances, its code goes into more detail regarding soil removal in terms of doing no harm to public spaces or adjoining properties. It was not until 2018 that ordinances addressing the opposite were enacted, to require permits for minor and major deposits, with 500 cubic yards being the transition from one to the other.
The current concern is about extreme imports of materials that can harm neighbors in terms of leachate and the quality of water in the aquifer that all local wells tap into. The situation is characterized in the lawsuit against the owner—and at long last by the New Jersey Department of Environmental Protection—as being an unlicensed solid waste facility, while the owner has reportedly thumbed his nose at Township and County officials and refused to pay any fines since 2011. In early June of this year, a State Superior Court judge ordered him to halt work and remediate the site. However, this owner apparently has a history of similar activity in New York state, so there is no assurance of how soon he will take any action towards compliance.
Dirty dirt isn’t the only kind of restricted deposit we can make onto our properties, though. We are also constrained when working on a site that is mapped on FEMA’s Flood Insurance Rate Maps as being in a Special Flood Hazard Area (the 1% annual chance floodplains designated by A-type and V-type zones). In coastal areas, prohibiting fill is an admission of the power of storm surge: V-type zones should be kept free of obstructions to the flow of water to minimize damage to structures by coastal hydrodynamic forces.
Some fill is allowed in riverine floodplains (A-type zones), but we must get permission from the regulating community or county via an acknowledgement document included in the MT-1 Forms for altering floodplains. The reasoning is that changing the pattern of water might improve your situation while causing worse flooding on your neighbors.
Early in my career, I worked for a company that served as the Township Engineer for the community in which it was located. We started getting complaints from residents along the Assunpink Creek that they were suddenly experiencing flooding, ever since a neighbor had decided to dump a lot of dirt in his back yard to divert the creek away from his property. This was by another of those “just do it” kind of individuals, who paid no attention to the fact that by keeping his land drier he was harming other people’s property. In that instance the resolution was less antagonistic, although certainly not without grousing and expense on the part of the illicit dumper. He had to pay a fine, remove the dirt he had added, and put the creek back where it had been.
We have other constraints against dirt piles, including the obstruction of viewsheds. Dune construction along coastal areas is prime for these kinds of conflicts, earning quite a few court dates. As with the other examples above, the balance between the rights of an individual and the rights and protection of the larger community can be difficult.