Expedited Bill No.         53-10               

Concerning:  Forest Conservation – Conforming Amendments                                  

Revised:    11/30/2010       Draft No. 4  

Introduced:      October 26, 2010           

Enacted:         November 30, 2010        

Executive:       December 10, 2010        

Effective:        December 10, 2010        

Sunset Date:  None                             

Ch.   55    , Laws of Mont. Co.    2010    

 

County Council

For Montgomery County, Maryland

 

By:  Council President at the request of the Planning Board

 

AN EXPEDITED ACT to:

(1)               reduce the threshold acreage of forest cut, cleared, or graded above which certain activities cannot be exempted from the Forest Conservation Law;

(2)               clarify how money in the Forest Conservation Fund can be used;

(3)               identify certain vegetation that must be retained unless the Planning Board or Planning Director authorizes a variance;

(4)               revise certain variance requirements; and

(5)               generally amend the County forest conservation law.

 

By amending

            Montgomery County Code

            Chapter 22A, Forest Conservation

Sections 22A-5, 22A-8, 22A-9, 22A-12, 22A-21, and 22A-27

 

 

Boldface                                               Heading or defined term.

Underlining                                            Added to existing law by original bill.

[Single boldface brackets]                     Deleted from existing law by original bill.

Double underlining                                Added by amendment.

[[Double boldface brackets]]                 Deleted from existing law or the bill by amendment.

*   *   *                                                  Existing law unaffected by bill.

 
 

 

 

 

 

 

 

 


The County Council for Montgomery County, Maryland approves the following Act:


Sec. 1.  Sections 22A-5, 22A-8, 22A-9, 22A-12, 22A-21, and 22A-27 are amended as follows:

22A-5.  Exemptions.

          The requirements of Article II do not apply to:

(a)     an activity conducted on an existing single lot of any size that is required to construct a dwelling house or accessory structure (such as a pool, tennis court, or shed) intended for the use of the owner, if the activity:

                   (1)     does not require a special exception;

                   (2)     does not result in the cutting, clearing, or grading of:

                             (A)    more than a total of [40,000] 20,000 square feet of forest;

                             (B)     any forest in a stream buffer,

(C)     any forest on property located in a special protection area which must submit a water quality plan,

                             (D)    any specimen or champion tree, or

(E)     any trees or forest that are subject to a previously approved forest conservation plan or tree save plan; and

            *           *           *

(n)     any minor subdivision under Section 50-35A(a)(2)-(3) involving conversion of an existing recorded outlot created because of inadequate or unavailable sewerage or water service to a lot or joining two or more existing residential lots into one lot, if:

(1)     the only development located on the resulting lot is a single family dwelling unit or an accessory structure (such as a pool, tennis court, or shed); and

(2)     development does not result in the cutting, clearing, or grading of:

                             (A)    more than a total of [40,000] 20,000 square feet of forest,

                             (B)     any forest in a stream buffer,

(C)     any forest on property located in a special protection area which must submit a water quality plan,

                             (D)    any specimen or champion tree, or

(E)     any tree or forest that is subject to the requirements of a previously approved forest conservation plan or tree save plan;

            *           *           *

(p)     the construction of a public utility or highway in a utility right-of-way not exempt under subsection (o), or a highway right-of-way not exempt under subsection (e), if:

                   (1)     the right-of-way existed before July 1, 1992;

(2)     forest clearing will not exceed a total of [40,000] 20,000 square feet and

(3)     the construction will not result in the cutting, clearing, or grading of:

                             (A)    any forest in a stream buffer,

(B)     any forest on property located in a special protection area which must submit a water quality plan,

                             (C)     any specimen or champion tree, or

(D)    any tree or forest that is subject to a previously approved forest conservation or tree save plan;

            *           *           *

(s)      (1)     an activity occurring on a tract of land less than 1.5 acres with no existing forest, or existing specimen or champion tree, and the afforestation requirements would not exceed 10,000 square feet; or

(2)     an activity occurring on a tract less than 1 acre that will not result in the clearing of more than a total of [30,000] 20,000 square feet of existing forest, or any existing specimen or champion tree, and reforestation requirements would not exceed 10,000 square feet.  Forest in any priority area on-site must be preserved; and

            *           *           *

22A-8.  Utility lines.

            *           *           *

(b)     Calculation Rules; Exemption.

(1)             To determine the applicability of this Chapter under Section 22A-4 to proposed activities within a public right-of-way or public utility easement, the calculation of land area must be based on the limits of disturbance as shown on the sediment control permit.

(2)             A public right-of-way, public utility easement, or privately owned utility right- of-way is considered to be exempt under Section 22A-5(o) if the proposed activity and any future stages of the work on the utility line will not result in the cumulative cutting, clearing, or grading of more than [40,000] 20,000 square feet of forest or the cutting, clearing, or grading of any specimen or champion tree, or trees or forest that are subject to a previously approved forest conservation or tree save plan.  Any later stages of the work must be identified at the time of the initial sediment control permit application.

            *           *           *

22A-9.  County Highway Projects.

            *           *           *

(b)     If the forest to be cut or cleared for a County highway project equals or exceed [40,000] 20,000 square feet, the constructing agency must reforest a suitable area at the rate of one acre of reforestation for each acre of forest cleared.

            *           *           *

22A-12.  Retention, afforestation, and reforestation requirements.

          (b)     Retention

            *           *           *

(3)     The following trees, shrubs, plants, and specific areas are priority for retention and protection and must be left in an undisturbed condition unless the Planning Board or Planning Director, as appropriate, finds that the applicant qualifies for a variance under Section 22A-21:

(A)           Any tree, shrub, or plant that is rare, threatened, or endangered under:

(i)                the Federal Endangered Species Act of 1973 in 16 U.S.C. §§1531 – 1544 and in 50 CFR 17;

(ii)             the Maryland Nongame and Endangered Species Conservation Act, Title 10, Subtitle 2A of the Natural Resources Article of the Maryland Code; or

(iii)           COMAR 08.03.08;

(B)            Any tree that is:

(i)                part of a historic site,

(ii)             associated with a historic [[site]] structure, or

(iii)           designated by the State or County as a national, State, or County champion tree; or

(C)            Any tree with a diameter, measured at 4.5 feet above the ground, of:

(i)                30 inches or more; or

(ii)             75% or more of the diameter, measured at 4.5 feet above ground, of the current State champion tree of that species.

            *           *           *

(e)      Standards for reforestation and afforestation.

            *           *           *

(2)             Off-site afforestation and reforestation.  In addition to the use of other sites proposed by an applicant and approved by the County, off-site afforestation or reforestation may also include:

(A)           Forest mitigation banks designated in advance by the County.

(B)            Protection of existing off-site forest.  Acquisition of an off-site protective easement for existing forested areas not currently protected in perpetuity is an acceptable mitigation technique instead of off-site afforestation or reforestation planting, but the forest cover protected must be 2 times the afforestation and reforestation requirements.

            *           *           *

22A-21.  Variance.

(a)              Written request.  An applicant may request in writing a variance from this Chapter or any regulation adopted under it if the applicant shows that enforcement would result in unwarranted hardship.  A request for a variance suspends the time requirements in Section 22A-11 until the Planning Board or Planning Director acts on the request.

            *           *           *

          (e)      Approval procedures; Conditions.  The Planning Board [[or the Planning Director for a Forest Conservation Plan associated with a sediment control plan]] must find that the applicant has met all requirements of this Section before granting a variance.  However, the Planning Director may grant a variance if the Director is authorized to approve the forest conservation plan and the applicant meets all requirements of this Section.  The Board or Director may impose appropriate conditions to promote the objectives of this Chapter and protect the public interest.

            *           *           *

22A-27.  Forest [conservation fund] Conservation Fund.

There is a County [forest conservation fund] Forest Conservation Fund.  Money deposited into the [fund] Fund must be used in accordance with the adopted County budget and [in accordance with the following] this Section:

(a)              In lieu fees.  Money deposited in the [forest conservation fund instead of planting] Forest Conservation Fund must be spent on the reforestation and afforestation for which the money is deposited, including costs directly related to site identification, acquisition, design, [and] preparation, or maintenance of existing forests, and achieving urban canopy goals, and must not revert to the [general fund] General Fund.  The permanent preservation of priority forests, including identification and acquisition of a site, may be substituted for reforestation and afforestation at a rate of 2 acres of forest preservation for each acre of planting required.  Funds remaining after all reforestation and afforestation requirements are satisfied may be spent on any other tree conservation activity, including street tree planting.

*           *           *

          Sec. 2. Expedited Effective Date

          The Council declares that this legislation is necessary for the immediate protection of the public interest.  This Act takes effect on the date when it becomes law.

Approved: