Expedited Bill No. 25-14
Concerning: Forest Conservation – Amendments
Revised: 7/23/14 Draft No. 2
Introduced: May 6, 2014
Enacted: July 29, 2014
Executive: August 5, 2014
Effective: August 5, 2014
Sunset Date: None
Ch. 25 , Laws of Mont. Co. 2014
For Montgomery County, Maryland
AN EXPEDITED ACT to:
(1) exempt certain stream restoration projects from certain requirements of the forest conservation law;
(2) exempt certain maintenance or retrofitting of stormwater management structures from certain requirements of the forest conservation law; and
(3) generally amend the forest conservation law.
Montgomery County Code
Chapter 22A, Forest Conservation – Trees
Sections 22A-3, 22A-4, 22A-5, 22A-11, 22A-12, 22A-20
Boldface Heading or defined term. Underlining Added to existing law by original bill. [Single boldface
from existing law by original bill. Double
by amendment. [[Double boldface
from existing law or the bill by amendment. *
* * Existing law unaffected by bill.
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.
Sec. 1. Sections 22A-3, 22A-4, 22A-5, 22A-11, 22A-12, and 22A-20 are amended as follows:
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Developed area means the portion of a property which has been altered from its natural state by the construction of a building, recreational facility, road or alley, rail line, athletic field, stormwater management facility, parking lot, [[or]] utility or similar improvement.
Developed property means a property that contains a developed area.
Development application means an application, as described in Section 22A-4, filed with the Planning Board, Planning Director, Board of Appeals, Hearing Examiner, or Department of Permitting Services, for plan approval or sediment control permit.
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Stream Restoration Project means an activity that:
(1) is designed to stabilize stream banks or enhance stream function or habitat located in an existing stream, waterway, or floodplain;
(2) avoids and minimizes impacts to forests and provides for replanting on-site an equivalent number of trees to the number removed by the project;
(3) may be performed under a municipal separate storm sewer system permit, a watershed implementation plan growth offset, or another plan administered by the State or local government to achieve or maintain water quality standards; and
(4) is not performed to satisfy stormwater management, wetlands mitigation, or any other regulatory requirement associated with a development application.
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Except as otherwise expressly provided in this Chapter, this Chapter applies to:
(a) a person required by law to obtain an [[initial]] approval or amendment to a development plan [approval], diagrammatic plan [approval], project plan [approval], preliminary plan of subdivision [approval], or site plan [approval];
The requirements or Article II do not apply to:
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(t) a modification to an existing non-residential developed property if:
(1) no more than  5,000 square feet of forest [will be cleared] is ever cleared [[in]] at one [[event]] time or cumulatively [[over multiple events from the first exemption]] after an exemption is issued;
(2) the modification does not [affect] result in the cutting, clearing, or grading of any forest in a stream buffer or located on property in a special protection area which must submit a water quality plan; [and]
(3) the modification does not require approval of a [new] preliminary plan of subdivision [plan.]; and
(4) the modification does not increase the developed area by more than 50%, and the existing development is retained;
(u) maintaining or retrofitting an existing stormwater management structure if:
(1) the clearing of vegetation or removal and trimming of trees is for the maintenance or retrofitting of the structure and in the original limits of disturbance for construction of the existing facility, or within any maintenance easement for access to the facility; and
(2) the tract is not included in a previously approved forest conservation plan; [[and]]
(v) a stream restoration project for which the applicant for a sediment control permit has:
(1) executed a binding maintenance agreement of at least 5 years with the affected property owner or owners;
(2) agreed to replace every tree removed and plant the new trees [[in]] before the end of the first planting season after final stabilization; and
(3) confirmed that the tract is not included in a previously approved forest conservation plan[[.]]; and
(w) cutting or clearing any tree by an existing airport operating with all applicable permits to comply with applicable provisions of any federal law or regulation governing the obstruction of navigable airspace if the Federal Aviation Administration has determined that the tree creates a hazard to aviation.
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(b) Project requiring development plan, project plan, preliminary plan of subdivision, or site plan approval.
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(2) Forest conservation plan.
(A) Application. [Upon notification] After being notified that the forest stand delineation is complete and correct, the applicant must submit a forest conservation plan to the Planning Director. If the development proposal will require more than one of the approvals subject to this subsection, the applicant must submit a preliminary forest conservation plan to the Planning Director in conjunction with the first approval and a final forest conservation plan in conjunction with the last approval. If only one approval subject to this subsection is required, an applicant[, with the approval of the Planning Board, may] must submit a preliminary forest conservation plan at the time of the development [approval] application and a final forest conservation plan before [issuance of] a sediment control permit is issued for the tract, but no later than a record plat is submitted.
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(C) [Condition of approval] Approval. The Planning Board must review and act on the forest conservation plan [will be reviewed by the Planning Board] concurrently with the development plan, project plan, preliminary plan of subdivision or site plan, as appropriate. [The] Compliance with the preliminary forest conservation plan, as [may be] amended by the Board, must be made a condition of any approval of the first applicable development application. Compliance with the final forest conservation plan, as amended by the Board, must be made a condition of any approval of the last development application. For a development plan, a Planning Board recommendation to the District Council on the preliminary forest conservation plan must be made under Section 59‑D-1.4. A final forest conservation plan must be approved by the Planning Board or Planning Director, as appropriate, before the Planning Board approves a record plat.
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(d) Project requiring a sediment control permit only.
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(3) Issuance of sediment control permit. A sediment control permit must not be issued to a person who must comply with this Article until[:
(A)] a final forest conservation plan, if required, is approved[; and
(B) any financial security instrument required under this Chapter is provided].
22A-12. Retention, afforestation, and reforestation requirements.
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(g) In lieu fee.
(1) General. If a person satisfactorily demonstrates that the requirements for reforestation or afforestation on-site or off-site cannot be reasonably accomplished, the person must contribute money to the forest conservation fund at a rate specified [by the County Council] by law or Council resolution, but not less than the rate required under Section 5-1610 of the Natural Resources Article of the Maryland Code. [The requirement to contribute money must be met within 90 days after development project completion.] Any in lieu fee payment must be made before any land disturbing activity, as defined in Chapter 19, occurs on a section of the tract subject to the forest conservation plan.
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(i) Financial Security.
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(4) Amount required.
(A) If [the] financial security is required under subparagraph (1)(A) [of this subsection], the security instrument must be in an amount equal to the estimated cost of afforestation, reforestation, and maintenance applicable to the section of the tract subject to the land disturbing activity. If the applicant sells an individual lot before providing the required financial security, the Planning Director may allow the new lot owner to provide a financial security that applies to the requirements specific to the development of that lot. The instrument must include a provision for adjusting the amount based on actual costs. The financial security instrument must be submitted to the Planning Director before any land disturbing activity occurs on the tract. The Planning Director must notify the obligee of any proposed adjustment and provide the opportunity for an informal conference.
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(b) Forest conservation plans and variances approved by the Planning Board. A person aggrieved by the decision of the Planning Board on the approval, denial, or modification of a forest conservation plan (including a request for a variance) may [[appeal the final administrative action on the development approval under the Maryland Rules of Procedure and any other law applicable to the proceeding]] seek judicial review of the decision in the Circuit Court under the applicable Maryland Rules of Procedure governing judicial review of administrative agency decisions. A party aggrieved by the decision of the Circuit Court may appeal that decision to the Court of Special Appeals.
(c) Forest stand delineations, exemptions from Article II, and forest conservation plans [approved] reviewed by the Planning Director.
(1) Appeal to Planning Board. After the Planning Director issues a written decision on a natural resource inventory/forest stand delineation, exemption from Article II, or forest conservation plan, an applicant may appeal the decision to the Planning Board within 30 days.
(2) Hearing; decision. The Planning Board must hold a de novo hearing on the appeal. The Board must adopt a written resolution explaining its decision. For purposes of judicial review, the decision of the Planning Board is the final agency action.
(3) Appeal. After receiving the Planning Board's decision, an applicant may [[appeal the decision within 30 days under the Maryland Rules of Procedure]] seek judicial review of the decision in the Circuit Court under the applicable Maryland Rules of Procedure governing judicial review of administrative agency decisions. A party aggrieved by the decision of the Circuit Court may appeal that decision to the Court of Special Appeals.
(d) Administrative enforcement process.
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(4) Appeal. After receiving the Planning Board's decision, an aggrieved person may [[appeal the Board's action within 30 days under the Maryland Rules of Procedure]] seek judicial review of the decision in the Circuit Court under the applicable Maryland Rules of Procedure governing judicial review of administrative agency decisions. A party aggrieved by the decision of the Circuit Court may appeal that decision to the Court of Special Appeals.
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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.