Montclair law would bar diverting stormwater to neighbors

The Montclair Township Council will be amending its stormwater control law to address situations when property owners improperly divert water from their properties onto their neighbors’ lots.

“Right now, your recourse is to go to Essex County Superior Court and [deal with it through] what us lawyers call ‘trespass and nuisance [laws],’” Deputy Mayor Bill Hurlock, who penned the update, said at its May 17 introduction.  

Hurlock said he has been working on such an ordinance for years, but that the change is needed now more than ever due to the frequency of storms that result in flooding in Montclair.

The new ordinance would create a code violation when any person or entity “artificially redirects or augments the flow of stormwater runoff onto adjacent property.”

“Artificially redirect” means to alter the course of a stormwater flow by “any means including but not limited to grading, structures, pipes, culverts or conduits.” It would apply to all properties in the township, according to the ordinance.

“This will help mitigate the issue and will give homeowners a recourse that they can use when this happens,” Hurlock said. 

Current code states violations could result in up to $2,000 in fines, imprisonment of up to 90 days, or community service not exceeding 90 days. Those are the maximum penalties allowed by state law for such violations, and similar penalties are specified in several other ordinances. Judges typically issue much less severe sentences for simple infractions. 

Residents have reported severe flooding in recent years in the areas of Burnside Street, Yantacaw Brook and South Park Street. 

Councilwoman Lori Price Abrams said that the code violation would help when areas of Montclair now have flooding even in the “simplest of storms.”

The ordinance had a first reading on May 17. It’s scheduled for a second reading, public hearing and final vote on June 13.

“We must be good neighbors to each other and take responsibility for water management on our properties. Hurricane Ida, like storms before, showed us how important it is to take stormwater management seriously,” Councilman Peter Yacobellis, who co-sponsored the amendment with Hurlock, said.

The council also voted to bond for $27,000 for design, study and engineering expenses in connection with the South Park Street culvert. South Park Street and Bloomfield Avenue area businesses were hit particularly hard with flooding during tropical storm Ida, some closing for months. Yacobellis said it wasn’t just Ida that caused major flooding to the area — these businesses have struggled for years with flooding due to the culvert being “problematic and a pinch point.”

Yacobellis said other mechanisms to address flooding throughout Montclair “due to precipitation pattern changes and significant development over the last decades” are also being explored.

Since impervious surfaces such as blacktop and
concrete redirect water rather than absorb it, he suggests creating maximum impervious surface standards throughout the township. He is particularly concerned with the township’s R-1 zones, which comprise most of Montclair. Currently, swimming pools, patios, sports courts, parking areas and sheds are not calculated in impervious surface space. 

Because the current zoning ordinance requires parking areas and spaces to have hard-surface paving, he is suggesting that a more permeable or porous pavement be used in all zones. The use of gravel should be excluded, as it could wash away and clog up storm drains and actually lead to more flooding, he said.  

Another mechanism Yacobellis suggests, to address the funding for stormwater upgrades and maintenance, would be to create a stormwater utility similar to the current sewer and water utilities. 

“The 2019 Clean Stormwater and Flood Reduction Act enabled Montclair and other municipalities to create stormwater utilities which could be used to assess a proportional tax relative to the total impervious area of a specific property, including parking lots, driveways and building roofs that are impermeable to stormwater runoff. The revenues from such a tax could then be used to improve stormwater infrastructure including increasing the size and capacity of our many insufficient culverts,” Yacobellis said.

He has suggested that a working group comprising township engineers, planning department officials, Planning Board members and the environmental commission collaborate on a recommendation for the council.

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