AGENDA ITEM #9
November 30,2010
Action
November 24, 2010
MEMORANDUM
TO:
FROM:
County Council
~Michael
Fa?e.n, Seni?r
L~gislative Attom~y ~
Amanda Mlhlll, LeglslatIve
Analyst,.ckttylAJ~
Action:
Expedited Bi1l53-10, Forest Conservation
SUBJECT:
Conforming Amendments
Transportation, Infrastructure, Energy
&
Environment Committee recommendation (2-0):
enact Bill 53-10 with a technical amendment
Expedited Bill 53-10, Forest Conservation
Conforming Amendments, sponsored by the
Council President at the request of the Planning Board, was introduced on October 26,2010. A
Transportation, Infrastructure, Energy and Environment Committee worksession was held on
November 22 and a public hearing was held on November 23.
Bill 53-10 would:
• reduce the threshold acreage of forest cut, cleared, or graded above which certain
activities cannot be exempted from the Forest Conservation Law;
• clarify how money in the Forest Conservation Fund can be used; and
• identify certain vegetation that must be retained unless the Planning Board or Planning
Director authorizes a variance; and revise certain variance requirements.
The bill draft that the Planning Board originally transmitted to the Council would make
numerous other changes to remove inconsistencies, provide clarity, and make implementing the
law more efficient. To ensure that the Council can address the issues quickly, only the portions
of the bill that would conform existing law to state law and authorize the Planning Director to
approve a variance were introduced.
The attached bill is a corrected version of the introduced bill. The bill introduced on October 26
did not incorporate changes already made to §22A-21 in Expedited Bill 34-09, Forest
Conservation Enforcement, which the Council enacted, and the Executive signed, earlier this
year (©6-7, lines 133-146).
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Issues/Committee Discussion
1.
Should the forest conservation law conform to state law?
In 2009, the State forest
conservation law was amended to tighten certain exemptions. Bill 53-10 would conform County
law to state law by amending County law to:
• reduce the threshold acreage of forest cut, cleared, or graded above which certain
activities cannot be exempted from the Forest Conservation Law from 40,000 acres to
20,000 acres for existing single lots (©2, line 11), certain minor subdivisions (©3, lines
28), and certain small lots (©4, lines 57);
• identify certain vegetation that must be retained unless the Planning Board or Planning
Director authorizes a variance (©5-6, lines 92-117); and
• specify that money deposited in the Forest Conservation Fund can be used to maintain
existing forests and achieve urban canopy goals (©7, lines 155-156).
Committee recommendation (2-0, Councilmember Leventhal absent): conform county law to
state law.
2. Should the threshold acreage requirements in the forest conservation law be consistent?
Although state law requires only that 3 changes be made to the acreage threshold as described
above, for consistency through the forest conservation law, Bill 53-10 would reduce the acreage
of forest cut, cleared, or graded above which certain activities cannot be exempted from the
Forest Conservation Law from 40,000 acres to 20,000 acres for construction in a utility right-of­
way (©3, line 41), public right-of-way, public utility easement, or privately owned utility right­
of-way (©4, line 75), and County highway projects (©5, line 85). Committee recommendation
(2-0, Council member Leventhal absent): make these threshold acreage requirements consistent.
3. Should the Planning Director have the authority to approve certain forest conservation
variances?
Current County law requires the Planning Board to approve forest conservation
variances. However, there is a subset of forest conservation plans - those that are associated
with a sediment control plan - that the Planning Director approves. Sending those variances to
the Planning Board creates unnecessary delays for property owners and clogs the Board's
agenda. Bill 53-10 would amend County law to authorize the Planning Director to approve these
variances (©7, lines 140-145). Committee recommendation (2-0, Councilmember Leventhal
absent): allow the Planning Director to approve these variances.
At the public hearing, there was confusion about whether the Planning Director could approve
variances even if the Planning Board approves the forest conservation plan. To clarify the intent,
Council staff recommends the following amendment to replace ©7, lines 140-145:
(e)
Approval procedures; Conditions.
The Planning Board [[or the Planning Director
for g Forest Conservation Plan associated with g 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..J!ll
requirements of this Section. The Board or Director may impose appropriate
2
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conditions to promote the objectives of this Chapter and protect the public
interest.
4. Should Bill 53-10 be amended to further enhance or clarify forest and tree protection?
Several speakers urged that the current forest conservation law should be revised to provide
greater protection for forests and trees (see ©28-33). Additionally, the Montgomery Soil
Conservation District urged the Council to make certain changes to the forest conservation law
that impact agricultural practices (see ©34). Council staff understands that the Executive will
transmit a comprehensive set of revisions to the forest conservation law in the next few months.
Although we understand the concerns raised, Council staff recommends that these concerns be
addressed during the comprehensive revision, not this limited bill.
Committee recommendation
The Committee (2-0, Councilmember Leventhal absent) recommended approval of Bill 53-10
with one technical amendment. To conform with state law, Bill 53-10 would require any tree
that is part of a historic site, associated with a historic site, or designated by the State or County
as a national, State, or County champion tree to be left in an undisturbed condition unless the
Planning Board or Planning Director approve a variance (©5-6, lines 106-110). To mirror the
state law language, the Committee recommended changing line 108 to read "associated with a
historic structure".
This packet contains:
Circle
#
Committee Bill 53-10
1
Legislative Request Report
9
Planning Board transmittal memorandum and staff report
10
State Law
16
Select testimony and correspondence
27
Maryland National Capital Building Industry Association
Conservation Montgomery, Inc.
28
Glen Echo Heights Citizens Association
29
Civic Federation
32
Marcia Rucker
33
34
Soil Conservation District
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Expedited Bill No.
53-10
Concerning: Forest Conservation ­
Conforming Amendments
Revised:
11/24/2010
Draft No.
L
Introduced:
October 26, 2010
Expires:
April 26, 2010
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _-..,...,_ _ _ _ _ _ __
Sunset Date:
....:.N.:..:o=n~e-:----::
_ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President at the request of the Planning Board
AN EXPEDITED ACT
to:
(l)
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
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]}
* *
*
Heading or defined term.
Added to existing law by original bill.
Deleted from existing law by original bill.
Added by amendment.
Deleted from existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Mary/and approves the following Act:
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Expedited Bill 53-10
1
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,
2
3
4
5
6
7
8
9
10
11
12
13
14
(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
15
16
17
(E) any trees or forest that are subject to a previously
approved forest conservation plan or tree save plan; and
*
*
18
19
*
(n) any mmor subdivision under Section SO-3SA(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
20
21
22
23
24
25
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:
26
27
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Expedited Bill 53-10
28
29
30
31
32
33
34
35
36
(A)
(B)
(C)
more than a total of [40,000] 20,000 square feet of forest,
any forest in a stream buffer,
any forest on property located in a special protection area
which must submit a water quality plan,
(D)
(E)
any specimen or champion tree, or
any tree or forest that is subject to the requirements of a
previously approved forest conservation plan or tree save
plan;
*
*
*
37
38
39
40
41
(p)
the construction of a public utility or highway in a utility right-of-way
not exempt under subsection (0), or a highway right-of-way not
exempt under subsection (e), if:
(1)
(2)
the right-of-way existed before July 1, 1992;
forest clearing will not exceed a total of [40,000] 20,000 square
feet and
(3)
the construction will not result
grading of:
(A)
(B)
any forest in a stream buffer,
any forest on property located in a special protection area
which must submit a water quality plan,
(C)
(D)
any specimen or champion tree, or
any tree or forest that is subject to a previously approved
forest conservation or tree save plan;
*
III
42
43
44
45
the cutting, clearing, or
46
47
48
49
50
51
*
*
52
53
(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
~
~
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Expedited Bill 53-10
54
55
56
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
*
57
58
59
60
61
62
63
*
*
22A-S. Utility
lines.
*
*
64
65
66
67
*
(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(0) 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.
68
69
70
71
72
73
74
75
76
77
78
79
80
o
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Expedited Bill 53-10
81
*
*
*
82
83
22A-9. County Highway Projects.
*
*
*
84
(b)
If
the forest to be cut or cleared for a County highway project equals
85
86
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.
*
*
*
87
88
89
90
22A-12. Retention, afforestation, and reforestation requirements.
(b)
Retention
*
91
92
93
*
*
ill
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
variance under Section 22A-21 :
~
94
95
96
97
98
99
100
®
Any tree, shrub, or plant that
endangered under:
IS
rare, threatened, or
ill
(in
the Federal Endangered Species Act of 1973 in 16
u.s.c.
§§1531
=
1544 and in 50 CFRlZ.;.
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;
101
102
103
104
105
106
107
au
Any tree that is:
ill
part of
~
historic site,
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Expedited Bill 53-10
108
109
110
111
(ii)
(iii)
associated with
£!:
historic [[site]] structure!! or
designated
Qy
the State or County as
£!:
national,
State, or County champion tree; or
!£l
Any tree with
£!:
diameter, measured at 4.5 feet above the
ground, of:
112
113
ill
(ii)
30 inches or more; or
75% or more of the diameter, measured at 4.5 feet
above ground, of the current State champion tree
of that species.
*
*
*
114
115
116
117
118
119
(e)
Standards for reforestation and afforestation.
*
*
*
120
121
122
123
124
125
126
127
128
129
130
131
132
133
(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.
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Expedited Bill 53-10
134
135
136
137
138
139
140
(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-ll until the
Planning Board or Planning Director acts on the request.
..,
..,
..,
(e)
Approval procedures; Conditions.
The Planning Board or the
141
142
Planning Director for
f!
Forest Conservation Plan associated with
f!
sediment control plan must find that the applicant has met all
requirements of this Section before granting a variance. The Board or
Director may impose appropriate conditions to promote the objectives
of this Chapter and protect the public interest.
..,
..,
..,
143
144
145
146
147
148
149
150
151
152
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
153
154
155
156
157
158
159
160
€J
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Expedited Bill 53-10
161
162
163
164
165
166
167
168
169
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:
170
Nancy Floreen, County Council
Date
171
Approved:
172
Isiah Leggett, County Executive
Date
173
This is a correct copy ofCouncil action.
174
Linda M. Lauer, Clerk of the Council
Date
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LEGISLATIVE REQUEST REPORT
Expedited Bill 53-10
Forest Conservation - Conforming Amendments
DESCRIPTION: ­
Expedited Bill 53-10 would reduce the threshold acreage of forest
cut, cleared, or graded above which certain activities cannot be
exempted from the Forest Conservation Law, clarify how money in
the Forest Conservation Fund can be used, revise certain variance
requirements, and generally amend the County forest conservation
law.
,
,
PROBLEM:
In 2009, the State forest conservation law was amended to tighten
certain exemptions to the forest conservation law. County law needs
to be amended to conform to state law. Additionally, current County
law requires the Planning Board, rather than the Planning Director, to
approve certain forest conservation variances. The Planning Director
approves the forest conservation plans which those variances are
attached to. Sending those variances to the Plimni:ng Board creates
unnecessary delays for: property owners and clogs the Board's
agenda.
To conform County law to state law and authorize the Planning
Director to approve certain forest conservation variances.
County Council
To be requested.
l'
0
be requested.
GOALSAND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERlENCE
ELSE'WHERE:
SOURCE OF
INFORlVIATION:
APPLICATION
WlTIDN
lVlUNICIP ALITIES:
PENALTIES:
To be requested.
To be researched.
Michael Faden, Senior Legislative Attorney (240) 777-7905
Amanda Millill, Legislative Analyst (240) 777-7815
To be determined.
See County Code §22A-16.
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-
MO~TGOMERY
COUNTY PLANNING BOARD
THE MARYLAND-NATIONAL CAPITAl. PARK AND PLANNING COMMISSION
c...c
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'In<<;
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March 23, 2010
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The Honorable Nancy Floreen
President
, Montgomery County Council
Stella. B. Werner Council Office Building
100 Maryland Avenue
Rockville, MD 20850
Re:
Planning Board Recommendation for revisions to the Forest Conservation Law
and adopting State-mandated changes to local programs
Dear Ms. Floreenand Couneilmembers:
On De.cember 3,2009, the Planning Board recommended transmitting revisions to the
Forest Conservation Law (Chapter 22A), to the Council for introduction and review.The
changes will make the law consistent with Senate Bill 666, which became effective on
October 1, 2009. The bill reduces the amount offorest a person can remove andstill be
exempt from submitting a forest cOl15ervation plan. It also requires persons
rem~ving
or
cutting certain vegetation obtain a variance.
The Planning Board is also taking this opportun'ity to make changes that will remove'
incon~istencies,
provide clarity, and make implementing the law more efficient. Unlike a
previous Pl,anning Board amendment, these proposed changes:
'
• do not
~ncrease
the number of properties subject to the law
• do not increase retention or planting requirements
• do not extend the period for whrch planted trees must be maintained.,
8787 Georgia Avenue, Silver
MaryIan': 20910
Chairman's Office: 301.495.4605
Fax:
301.495,1320
100%
rl!<:jldecl
paper
www.MCParkandPlanning.org E·Mail: mcp-chalrman@mncppc.org
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The Honorable Nancy Floreen
March 23, 2010
Page 2
The Planning Board amendment does incorporate the widespread agreement on clearly
defining the submission requirements that was raised during the review of the previous
bill.
Please introduce this proposed legislation on an expedited review basis to ensure
. consistency with the Senate's' bill. The proposed legislation witl provide costs s'avings by ,
reducing submission requirem,ents for those subject to the law but now not required to
submit a forest cons.ervation plan .. This proposed legislation will also reduce the amount
oftime and money spent by the Planning Department on review. The submission of
these 'changes \/Vas delayed for approval of Bill 34-09 so as not to confuse the Planning
Boarp's enforcement legislation with these changes.
The Planning Board and Plan'ning staff are available to
a~si,st
the Council in their review
,of the proposed legislation.
Sincerely, '
RH:MP:ss
cc:
Planning Board
Rollin Sta'nley
Mark Pfefferle
,-,,",
Attachments
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MONTGONfERY COUNTY
PLAl'{NlNG
DEPART?Y.1ENT
nm
1\L\R)'1..A"01I)-NATIONAL
C.-\.PIT1\L
P.\.R...lZ
.-\.:"m
PL\0i"NING
C01::f1vITSSION
MCPB
Item
#
December 3, 2009
lYIE:M0 RM"TIUM:
TO:
FROM:
Montgomery County Planning Board
Mark Pfefferle .
Acting-Chief, Environmental Planning
Forest Conservation Program Manager
November 24,2009
Forest Conservation Law Amendment
DATE:
SUBJECT:
INTRODUCTION
The purpose of this memorandum is to introduce the amendments to the
Montgomery County Forest Conservation law and provide an overview of the proposed
changes ..
BACKGROUND ­
In .
September 2007 the Planning Board forwarded a forest conservation
amendment· to the County Council. Bill 37-07 was discussed over numerous work
sessions but died in the Transportation and Environment Committee before it could be
forwarded to the full Council. That Bill proposed changes to the forest retention and
planting requirements and increased the maintenance and management period for planted
forests. The amendment introduced today does :Q.ot propose changing the forest retention
and planting requirements or the length of the
m~tenance
and management period.
Today's amendment incorporates elenients of Bill 37-07 that received widespread
support from groups that include the regu1ated com.niunity, environmental community,
the County's Forest Advisory Committee, arid Council staff.
On October 1, 2009 Maryland Senate Bill 666 became effective statewide. This
Bill requires revisions
all
local government forest conservation programs for consistency
with the state bill. The proposed amendment is to make the Montgomery County Forest·
Conservation Law consistent with Bill 666.
@
1
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The proposed amendments introduced today are to provide consistency,. clarity,
and efficiency to the Montgomery County Forest Conservation law. Below are the major
changes and the purposes of the changes.
Consistency
The proposed changes will make the Montgomery County Forqt Conservation law
consistent with Maryland .Senate Bill 666. The table below highlights the key points of'
Bill 666 and where the amendments need to occur in the Forest Conservation law.
Senate Bill 666
Proposed Bill
DNR must develop a policy on "no net
No change,required to County law.
.
oss."
Reduce applicability threshold on single Amend §22A-5. See line 256.
ots.
,
iReduce applicability threshold for child
iNo change required to Courtty law - not
ots.
lin
22A.
iRemove waiver for area covered by paved iNo change required to County law - not .
surface.
in 22A.
Amend §22A-12. See line 1136.
Add "in perpetuity" to the offsite
protective easement option.
Amend §22A-12. See line 1028-1052.
Add language requiring the removal of
certain trees and shrubs fIrst obtain a
!variance.
Change applicability for pl3.:cing land in the
1N0
change required to County law - not
~orest
conservation and management
in22A
!program.
No change required to County law - set
Change in-lieu fee.
by resolution.
Clarify how in-lieu fees can be spent
A.rg.end 22A-27. See lines
1429-1432.
"
~.
Clarity
DUring the numerous discussions on Bill 34-07,
all
interested parties agreed that
using a 3 level approach for properties and activities subject to the forest conserVation
law was appropriate for it clarilled the applicability and submission requirements.
Today's proposal re-introduces the 3 levels. The fIrst level would require the applicant to
submit a "Declaration of Intent". The second level would require a tree inventory, tree.
protection plan, and a "Declaration of Intent". The thirdlevel requires the submission of a .
Natural Resources InventorylForest Stand Delineation and a forest conservation plan.
The proposed amendment to the Forest Conservation law also clarilles ambiguous
@
2
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language found throughout the existing law. The table below highlights the changes
between the existing forest conservation law and the proposed amendment.
Proposed Bill
Sections Impacted
I
k\dd missing definitions: afforestation
Amend
§22A~3.
See litles 32-43, lines
threshold, applicant;'certified arborist,
56-59, lines 90-97, lines 119-120, lines
environmental buffer, medium density
125-131, and lines 143-145.
residential area, natural resources
inventory, qualified professional, stream
[buffer, tree expert, and tree protection
plan.
Clarify the applicability section.
Amend §22A-4. See lines 178-192.
dentifies the types of submissions needed !Amend §22A-4. See lines 193-282.
L'or each review leveL
. iReduces the amount of forest removed for
~end
§22A-9. See line 571.
ibighway projects from 40,000 square feet
to 20,000 square feet.
-
~dentifies
specific submission
k\mend §22A-10. See lines 639-746.­
equirements.
.I.dentifies planting preferences.
Amend §22A-12. See lines 983-996.
Clarifies that in-lieu fee money must be
Amend §22A-12. See lines 1230-1232.
paid prior to any land disturbing activities.
~end
§22A-12. See line 1252.
iRequires that maintenance and
Imanagement
agre~inents inclu~e
the
icontrol of non-native and lllvaslve lants.
~ows
for the [mancial securities to be
Amend §22A-12. See lines 1267-1268.
collected for tree save lans.
Clarifies what the financial security
end §22A-12. See lines 1275-1283.
amount should equal and what the estimate
eeds to include.
, dds an appeal section for tree inventories Amend §22A-20. See lines 1370-1392.
d tree protection plans approved by the
lannin Director.
end §22A-12. See lines 1396-1419.
ermits Planning Director approval of
!certain variances.
Efficiency.
The proposed amendment provides efficiency to the regulated community and the .
Planning Department Clearly idenili)'ing the submission requirements will save time
and money for applicants to prepare and submit applications. Also, under the existing
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forest conservation law
all
variances must be approved by the Planning Board. Some·
plans· do not require Planning Board approval, but the step that requires Plan,.'1ing Board
approval of all variances creates unnecessary delays when the forest conservation plan is
approved by the Planning Director.
Therefore, this amendment would allow· the
Planning Director to approve certain variances.
Changes to Bill 34-09
The. proposed forest conservation law amendment does not acidress .chariges .
proposed by Bill 34-09 except where changes are necessary. This includes modifications
to the variance section and to the section on plan appeals. The Planning Board forwarded
the changes to all Commission enforcement actions, to the County Council, prior to the .
Maryland Department of Natural Resources providing guidance on how Senate Bill
666
should ,be implemented. Therefore, when Bill 34-09 was submitted it did not include the
clarifications needed to the variance provision. The following changes are proposed to
Bill 34-09.
Sections Impacted
Pro20sed Bill
Adds an appeal section for tree inventories Amend §22A-20. See lines 1370-1392.
and tree protection plans approved by the
Planning Director.
Amend §22A-12. See lines 1396-1419.
Permits Planning Director approval of
certain variances.'
RECOlYIMENDATION
We recommend that the Planning Board vote to adopt the amendments to the Forest
Conservation law for transmittal to the County Council for further action.
'
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Ch.298
CHAPTER 298
(Senate
Bill
666)
AN ACT concerning
Natural Resources - No Net Loss of Forest Policy - Forest Conservation Act
FOR the purpose of
!'8€lli@i:r:lg the UlF8shElI€l a8!'eage Elf laB€l iB a IH'El,El8e€l SliBElivisi€lB
,laB
ae€W8
wm€lh the FElF9St CElBse!"latiElB
i'~€lt
a"lies;
reducing the threshold
acreage of forest cut, cleared, or graded above which certain activities no longer
qualify as exemptions to the Forest Conservation Act;
Fe,ealiRg €lertaiB
eiiem,ti€ l ns fr@m the Fe€ f liiFements @f tlie FElFest G€mseF'l'latiElB !z@t fur €lmtiBg Ell'
@leaFiBg trees in a ,liBli€l mility right Elf way;
limiting a certain exemption from
the requirements of the Forest Conservation Act for intrafamily transfers;
repealing the authority of a local jurisdiction to waive the requirements of the
Forest Conservation Act for certain previously developed and paved areas;
FeElliiFiBg tlis PliBli€l
~e!'vi€l8
C€lmmisSiElB tEl 8BSlir8 eElm13liaB€l8 with € l ertain
Elf 1300lie
re!31:liremeBts wfleB reviewiBg aB a13Jl!li€latiEln fur a lertifi@ate
lElnVemeB@e aB€l Bs@essity;
authorizing the acquisition of an off-site protective
easement for temporarily protected forested areas as a mitigation technique to
meet afforestation or reforestation requirements; altering the standard that a
person is required to meet to determine whether certain vegetation and areas of
land may be disturbed; authorizing the owner of certain preserved forestland to
place the forestland into the Forest Conservation and Management Program or
under an approved forest management plan; altering the fee-in-lieu
contribution to State or local forest conservation funds that is required under
certain circumstances; altering the authorized uses of State and local forest
conservation funds;
re€ft;1:WiBg tlis De,artmeBt Elf Nat1:lral ReS€l1:lF€leS
h
levelEl,
8:B€l im,iemeBt 8: B@ Bet iess Elf ierest ,t}bi€y BY 8: €SFtaift €late, te a€lElflt eertaiB
regulati§Bs a!ul fl¥€lfl€lSEl eertsiB legislatioB to aemeve this g@al, aF!!} t9 8:€hieve
this gElal v:ith€l1:lt re€lti€liBg
tlis a€lFeage Elf a eeriaiB lan!!1 1:lse iB tlie
~tate;
Fe€ft;1:wiBg tlie DeflaFtmeBt Elf NatliFal ReS€lliFeeS tEl saBmit a reflElFt tEl tlie
C eBeFal i\aoem"Bly af£ft1:lally after a 8ertsin €late IB its flr€lgress iB !!1evel€lfling
aB€l imfllemeBtiBg a B9 Bet 1900 @f MPest ,9li€lY iB the
~tate
requiring the
Department of Natural Resources to cooperate with certain groups to develop a
certain definition and poliCY; requiring the Department to submit a certain
report on or before a certain date;
le@laftRg the iBtent Elf
the
CeBeysl AssemBly;
malting certain stylistic changes; making a technical correction; and generally
relating to· the Forest Conservation Act and the development and
implementation of a no net loss of forest policy.
BY adding to
Article - Natural Resources
Section 5-104
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Ch.298
MARTIN O'MALLEY, Governor
Annotated Code of Maryland
(2005 Replacement Volume and 2008 Supplement)
BY repealing and reenacting, with amendments,
Article - Natural Resources
Section 5-1602, 8
1@Q3(@)(3)
5-1603CC)(3),rfft;
a1:'Hil
(g),
I;
1@Q1(a),
5-1607(b)(2),
(c), and
(D,
and 5-1610
Annotated Code of Maryland
(2005 Replacement Volume and 2008 Supplement)
Anftstate€!: G€l!:e lfMarylaIi€!:
(2QQ8 RSfl1a@elfisftt V€lhilfie !iIi€!: 2QQg
~~fllelfieftt)
BY repealing and reenacting, without amendments,
Article - Natural Resources
Section 5-1603(f) and
(g),
5-1604(a), 5-1607(e)... and 5-1611
Annotated Code of Maryland
(2005 Replacement Volume and 2008 Supplement)
SECTION
1.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF
lVlARYLAND, That the Laws of Maryland read as follows:
Article - Natural Resources
5-104.
~
DE¥ELOP ANI:) Il\Q?LEl'IHill'l'F A NO l'tEt' LOSS OF FORESt' POLICY
:BY DEeEl'I:l:BER
31, 2Q12;
ADopt'
i'Y'lY
REG1JL!z'110l'TS
AND
PROPOSE
Mf\.L
LEGISLt..t'ION
l'tEeESSi\RY t'0 ACHIEVE nIlS GOst\:L;
1'Y'm
L'\{JIlIE'JE t'IIIS GOz\:L WITIIOUl:' BEBUCING 'DD> }..CBEhGE OF
PRRlIE PBOBUC'HVE
i\GRlCUVFUGAeL
L\NB IN mE STA'l'E.
ON OR BEFORE DECEUBER
1, 2011
z\Nl:l
EACII YElJtR 'l'IIE11EAFl'EB,
'FIm
DEPt\B'I'MEN'l' SHALL REPOWF t'0. 'l'IIE CEl'tEltAL AsSEltIBLY, IN
:ACCOBl:lz\l\lCE
VII'FH
§
2 124G
OF
'FIm
S'FAl'E COllE:RNl'clEl'T'l' ..\ Bt'ICLE, OP'f HD>
PROGRESS OF t'HE DEPlJtRBlEl'T'l' IN DEVELOPING
.\NI)
Il\IPLElvIENHNG
1\
POlsley OF NO l'tE'l' LOSS OF FORESt' IN 'DIE S'l'ATE.
~
~
M
®
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Ch.298
!Al
THE
DEPARTMENT SHALL COOPERATE WITH FORESTRY-RELATED
STAKEHOLDER GROUPS TO:
DETERMINE THE MEANING OF NO NET LOSS OF FORESTS
FOREST
FOR THE PURPOSES OF ANY STATE POLICY; AND
DEVELOP PROPOSALS FOR THE CREATION OF A POLICY OF NO
NET LOSS OF FOREST IN THE STATE.
ON OR BEFORE DECEMBER
1, 2011,
THE DEPARTMENT, IN
CONSULTATION WITH THE FORESTRY-RELATED STAKEHOLDER GROUPS. SHALL
REPORT TO THE SENATE EDUCATION. HEALTH, AND ENVIRONMENTAL AFFAIRS
COMMITTEE AND THE HOUSE ENVffiONMENTAL MATTERS COMMITTEE. IN
ACCORDANCE WITH §
2-1246
OF THE STATE GOVERNMENT ARTICLE. ON
PROPOSALS FOR THE DEVELOPMENT OF STATUTORY. BUDGETARY, AND
REGULATORY POLICIES TO ACHIEVE NO NET LOSS OF FORESTS
FOREST
IN THE
STATE.
ill
00
ill
5-1602.
(a)
Except as provided in subsection (b) of this section, this subtitle shall
apply to any public or private subdivision plan or application for a grading or sediment
control permit by any person, including a unit of State or local government on areas
f40,000i
2Q,QQQ
square feet or greater.
(b)
The provisions of this subtitle do not apply to:
(1)
Any construction activity that is subject to
§
5-103 of this title;
(2)
Any cutting or clearing of forest in areas governed by the
Chesapeake Bay Critical Area Protection Law (Title 8, Subtitle 18 of this article);
(3)
Commercial logging and timber harvesting operations, including
any harvesting conducted under the forest conservation and management program
under
§
8-211 of the Tax - Property Article:
(i)
That were completed' before July 1, 1991; or
That were completed on or after July 1, 1991 on property
that is not the subject of an application for a grading permit for development within
5 years after the logging or harvesting operation. However, after this 5-year period,
the property shall be subject to this subtitle;
(ii)
-3-
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Ch.298
Th1ARTIN O':MALLEY, Governor
Any agricultural activity that does not result in a change in land
(4)
use category, including agricultural support buildings and other related structures
built using accepted best management practices;
(5)
fThe cutting or clearing of public utility rights-of-way or land for
electric generating stations licensed pursuant to
§
7-204,
§
7-205,
§
7-207, or
§
7-208
of the Public Utility Companies Article, provided that:
Any required certificates of public convenience and necessity
have been issued in accordance with
§
5-1603(f) of this subtitle; and
(i)
The cutting or clearing of the forest is conducted so as to
minimize the loss of forest;
(ii)
(6)
(7)i
Any routine maintenance of public utility rights-of-way;
Any activity conducted on a single lot of any size or a linear project
provided that:
(i)
The activity does not result in the cutting, clearing, or
grading of more than [40,000]
20,000
square feet of forest; and
(ii)
The activity on the lot or linear project will not result in the
cutting, clearing, or grading of any forest that is subject to the requirements of a
previous forest conservation plan prepared under this subtitle;
f(8)t
~
Any strip or deep mining of coal regulated under Title 15,
Subtitle 5 or 6 of the Environment Article and any noncoal surface mining regulated
under Title 15, Subtitle 8 of the Environment Article;
Any activity required for the purpose of constructing a
dwelling house intended for the use of the owner, or a child [or grandchild] of the
owner, if the activity does not result in the cutting, clearing, or grading of more than
[40,000]
20,000
square feet of forest;
f(10)t
~
A county that has and maintains 200,000 acres or more of its
land area in forest cover; and
f(11)t
~
The cutting or clearing of trees to comply with the
requirements of 14 C.F.R.
§
77.25 relating to objects affecting navigable airspace,
provided that the Federal Aviation Administration has determined that the trees are a
hazard to aviation.
(c)
For an application for subdivision or sediment and erosion control or
grading for a site with more than 50% of the net tract area governed by Title 8,
t(9)t~
-4-
@
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Ch.298
Subtitle 18 of this article, the Department or local authority may allow an applicant to
extend critical area forest protection measures [in lieu]
INSTEAD
of meeting the
requirements of this subtitle.
5-1603.
(c)
(3)
(i)
A local authority shall review and amend, as appropriate, all
current local ordinances, policies and procedures that are inconsistent with the intent
and requirements of this subtitle such as parking, road width, setback, curb and
gutter, grading, and sidewalk requirements.
(ii)
Department, may[:
Allow]
ALLOW
clustering and other innovative land
use techniques that protect and establish forests where open space is preserved,
sensitive areas are protected, and development is physically concentrated[; and
1.
A local forest conservation program, when approved by the
2.
Waive the requirements of this subtitle for an area
that was previously developed and is covered by paved surface at the time of
application for subdivision plan, grading, or sediment control permit approval].
Mter
December 31, 1992, the Public Service Commission shall give due
f(f)
consideration to the need to minimize the loss of forest and the provisions for
afforestation and reforestation set forth in this subtitle together with all applicable
electrical safety codes, when revie\Ving applications for a certificate of public
convenience and necessity issued pursuant to
§
7-204,
§
7-205,
§
7-207, or
§
7-208 of
the Public Utility Companies
Article.~
A local authority or the Department in its administration of a
State forest conservation program in jurisdictions which do not have an approved local
program in effect may establish reasonable and appropriate procedures for the
recovery of all costs incurred in the development, implementation, administration, and
enforcement of the local forest conservation program or the State forest conservation
program for jurisdictions without an approved forest conservation program.
5-1604.
(a)
Except as provided in subsection (b)(2) and (3) of this section, after
December 31,1992, or after the date on which a local program has been adopted under
§
5-1603 of this subtitle, whichever occurs first, a person making application for
subdivision or grading or sediment control permits on areas fgreater than
40,000~
29,999
square feet
OR GREATER
shall submit a forest stand delineation for the entire
site prepared by a licensed forester, licensed landscape architect, or other qualified
professionals that may be approved by the State or a local authority in the manner
required by the approved program.
f(g)~ ~
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Ch.298
MARTIN O'MALLEY, Governor
5-1607.
(b)
Standards for meeting afforestation or reforestation requirements shall
be established by the State or local program using one or more of the following
methods:
(2)
The use of street trees in a municipal corporation with a tree
management plan, in an existing population center designated in a county master plan
that has been adopted to conform "With the Economic Growth, Resource Protection, and
Planning Act of 1992, or in any other designated area approved by the Department as
part of a local program, under criteria established by the local program, subject to the
approval of the Department, using:
Street trees as a permissible step in the priority sequence for
afforestation or reforestation and, based on a mature canopy coverage, may grant full
credit as a mitigation technique; and
(i)
(ii)
Acquisition as a mitigation technique of an off-site
protective easement for existing forested areas not currently protected IN
PERPETUITY,
in which case the afforestation or reforestation credit granted may not
exceed 50% of the area of forest cover protected.
(c).
ill
TImES. SIIRtJBS.
l'Y'iD
PI:a:\;N'I'S LOC/.lFEB IN SENSI'FPlE
1\REAS
INCLUBDl€
1
QQ
YEi\B FLOOQPLA:Drs. Dt'I'ERltU'J"l'EJW MID PERENJTIAL S'I'REiWS
l\P'iD
'l'IIEIR DUFFERS. COASTAL
R"..YS
MiD
'l'IIEIR DUFFERS, STEEP SLOPES.
~S\:ND
CRI'l'ICl\L IIhIU'I'A'I'S SHALL BE:
THE FOLLOWING TREES, SHRUBS.
PLANTS, AND SPECIFIC AREAS SHALL BE CONSIDERED
PRIORITY FOR
RETENTION AND PROTECTIONt
LEF'I'.
AND THEY SHALL BE LEFT
IN
AN UNDISTURBED
CONDITION UNLESS THE APPLICANT HAS DEMONSTRATED, TO THE
SATISFACTION OF THE STATE OR LOCAL AUTHORITY, THAT REASONABLE
EFFORTS HAVE BEEN MADE TO PROTECT THEM AND THE PLAN CANNOT
REASONABLY BE ALTERED:
ffi
CO~TSIDEREB
fIH
TREES, SHRUBS, AND PLANTS LOCATED IN SENSITIVE
AREAS INCLUDING lOO-YEAR FLOODPLAINS, INTERMITTENT AND PERENNIAL
STREAMS AND THEIR BUFFERS, COASTAL BAYS AND THEIR BUFFERS, STEEP
SLOPES, AND CRITICAL HABITATS; AND
ill
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Ch.298
(II) CONTIGUOUS FOREST THAT CONNECTS THE LARGEST
UNDEVELOPED OR MOST VEGETATED TRACTS OF LAND WITHIN AND ADJACENT
TO THE SITE.
The following trees, shrubs, plants, and specific areas shall be
considered priority for retention· and protection, and they shall be left in an
undisturbed condition unless the applicant has demonstrated, to the satisfaction of the
State or local authority,- that [reasonable efforts have been made to protect them and
the plan cannot reasonably be altered]
THE APPLICANT QUALIFIES FOR A
VARIANCE UNDER
§
5-1611
OF TIDS SUBTITLE:
8:13:8 fJlEmts 1€l88:t88 113: S913:sitiY9 8:Fe8:8 iE:81aElHig
lQQ
year
8013:8 fJ9re13:13:ial stream8 8013:8 i§ei¥ @l.tiie¥8, @€l8:staJ
@ays 8013:8 their @MifeFS, steep sl€lfJes, 8:E:8 8Fiti@al h8:@it8:ts;
C€l13:tiga8a8 wrest that 8813:13:98t9 the 18:rgeet tl13:8ev81€lfJ98 €lF
'HI8Sl; vsget8:ts8 tFa@te 8f 18:13:8 vlii§iE: 8:E:8 a€ij8:€lsE:1; 1;8 the site;
~
~
TFS9S, sftFa@s,
R€H~8fJlai13:s,
iE:t9J."mitte13:t
00
ill
Trees, shrubs, or plants identified on the list of rare,
threatened, and endangered species of the U.S. Fish and Wildlife Service or the
Department;
Trees that are part of a historic site or associated with
a historic structure or designated by the Department or local authority as a national,
State, or local Champion Tree; and
~
~
~
f41
HHt
(II)
f!:¥t
(III)
Trees having a diameter measured at 4.5 feet above
the ground of:
30 inches; or
75% of the diameter, measured at 4.5 feet above the
ground, of the current State Champion Tree of that species as designated by the
Department.
(e)
(1)
As
part of the development of a forest conservation program, the
State or local government shall develop provisions for:
~
2.
CD
and (3) of this section;
(ii)
Preservation of areas described in subsections (c) and (d)(1)
Retention as forest of all land forested, afforested, or
reforested under this subtitle; and
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Ch.298
MARTIN O'l\1ALLEY, Governor
(iii) Limitation of uses of forest to those that are not inconsistent
with forest conservation, such as recreational activities and forest management under
subsection
(f)
of this section.
(2)
The provisions required in paragraph (1) of this subsection may
include protective agreements for areas of forest conservation, including conservation
easements, deed restrictions, and covenants.
[Except for land that is preserved under subsection (e) of this section, an]
AN owner may place land that is forested, afforested, or reforested under this subtitle
in the forest conservation and management program under
§
8-211 et seq. ofthe Tax­
Property Article or in a forest management plan prepared by a licensed forester and
approved by the local authority or the State. Reforestation shall be required when the
final regeneration harvest is complete or
if
determined to be necessary due to the lack
of adequate natural regeneration.
(f)
5-1610.
(a)
(b)
In this section, "Fund" means the Forest Conservation Fund.
There is a Forest Conservation Fund in the Department.
(c)
Except as provided in subsection (h) of this section,
if
any person subject
to this subtitle demonstrates to the satisfaction of the appropriate State or local
authority that the requirements for reforestation or afforestation on-site or off-site
cannot be reasonably accomplished, the person shall contribute money [at a rate of
10 cents per square foot of the area of required planting] to the Fund:
UNTIL SEPTEMBER
30, 2014,
AT A RATE OF
30
CENTS PER
SQUARE FOOT OF THE AREA OF REQUIRED PLANTING; AND
AFTER SEPTEMBER
30, 2014,
AT A RATE ADJUSTED FOR
INFLATION AS DETERMINED BY THE DEPARTMENT ANNUALLY BY REGULATION.
(1)
(2)
(d)
Money collected by the State or a local authority under
§
5-1608(c) or
§
5-1612 of this subtitle for noncompliance with this subtitle or regulations adopted
under this subtitle or for noncompliance with a forest conservation plan or the
associated 2-year management agreement shall be deposited in the Fund.
(e)
(1)
The Department shall accomplish the reforestation or afforestation
for which the money is deposited within 2 years or 3 growing seasons, as appropriate,
after receipt of the money.
(2)
Money deposited in the Fund under subsection (c) of this section
shall remain in the Fund for a period of 2 years or 3 growing seasons, and at the end of
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Ch.298
that time period, any portion that has not been used to meet the afforestation or
reforestation requirements shall be returned to the person who provided the money to
be used for documented tree planting in the same county or watershed beyond that
required by this subtitle or other applicable statutes.
(1)
(i)
Money deposited in the Fund under subsection (c) of this
section may only be spent on reforestation and afforestation, including site
identification, acquisition, and preparation,
MAINTENANCE OF EXISTING FORESTS,
AND
ACHIEVING URBAN CANOPY GOALS,
and may not revert to the General Fund of
the State.
(f)
(ii)
Any investment earnings of the Fund shall be credited to the
General Fund of the State.
(2)
(i)
Except as provided in subparagraph
(ii)
or (iii) of this
paragraph, the reforestation or afforestation requirement under this subsection shall
occur in the county and watershed in which the project is located.
If
the reforestation or afforestation cannot be reasonably
(ii)
accomplished in the county and watershed in which the project is located, then the
reforestation or afforestation shall occur in the county or watershed in the State in
which the project is located.
(iii)
If
the reforestation or afforestation cannot be reasonably
accomplished in the county or watershed in which the project is located, then the
reforestation or afforestation shall be accomplished through purchase of credits in,
establishment, or maintenance of a forest mitigation bank in accordance with
regulations of the Department. The Reforestation Fund may not be used to finance
administrative activities associated with a mitigation bank and any credits created by
the Reforestation Fund may not be sold to compensate for additional forest impacts.
(g)
Money deposited in the Fund under subsection (d) of this section may be
used by the Department for the purpose of implementing this subtitle.
(1)
In lieu of a State Forest Conservation Fund, any local authority
(h)
with an approved forest conservation program may establish a forest conservation
fund, to be administered by the local authority, to allow a payment by any person who
has demonstrated to the satisfaction of the local authority that the requirements for
reforestation and afforestation on-site and off-site cannot be reasonably
accom plished.
(2)
The rate shall be [10 cents per square foot of the area required to
be replanted]
THE
SAME AS
THE RATE ESTABLISHED FOR THE STATE FOREST
CONSERVATION FUND UNDER SUBSECTION (C) OF TIDS SECTION.
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Ch.298
(i)
MARTIN O'MALLEY, Governor
Money deposited in the local forest conservation fund under subsection
(h) of this section shall remain in the fund for a period of 2 years or 3 growing seasons.
At the end of that time period, any portion that has not been used to meet the
afforestation or reforestation requirements shall be returned to the person who
provided the money to be used for documented tree planting in the same county or
watershed beyond that required by this subtitle or other applicable statutes.
(1)
Money deposited in the local forest conservation fund under
subsection (h) of this section may only be spent on reforestation and afforestation,
including the costs directly related to site identification, acquisition, prepurchase, and
preparation,
MAINTENANCE OF EXISTING FORESTS, AND ACHIEVING URBAN
CANOPY GOALS,
and may not revert to any other local general fund.
(j)
(2)
(i)
Except as provided in subparagraph (ii) or (iii) of this
paragraph, the reforestation or afforestation requirement under this subsection shall
occur in the county and watershed in which the project is located.
(ii)
If
the reforestation or afforestation cannot be reasonably
accomplished in the county and watershed in which the project is located, then the
reforestation or afforestation shall occur in the county or watershed in the State in
which the project i,s located.
(iii) If the reforestation or afforestation cannot be reasonably
accomplished in the county or watershed in which the project is located, then the
reforestation or afforestation shall be accomplished through purchase of credits in,
establishment, or maintenance of a forest mitigation bank in accordance with
regulations of the local forest conservation program. The Reforestation Fund may not
be used to finance administrative activities associated with a mitigation bank and any
credits created by the Reforestation Fund may not be sold to compensate for additional
forest impacts.
(k)
Money collected by the local authority under
§
5-1608(c) of this subtitle
for noncompliance with this subtitle or regulations or ordinances adopted under this
subtitle for noncompliance with a forest conservation plan or the associated 2-year
management agreement shall be deposited in the local fund. The rate shall be 30 cents
per square foot of the area found to be in noncompliance with the required forest
conservation.
Money deposited in a local forest conservation fund under subsection
(k)
of this section may be used by the local authority for purposes related to implementing
this subtitle.
(l)
5-1611.
In the preparation of the State or local forest conservation programs, the
(a)
State and local authorities shall provide for the granting of variances to the
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Ch.298
requirements of this subtitle, where owing to special features of a site or other
circumstances, implementation of this subtitle would result in unwarranted hardship
to an applicant.
(b)
Variance procedures adopted under this section shall:
(1)
Be designed in a manner consistent with the spirit and intent of
Assure that the granting of a variance will not adversely affect
this subtitle; and
(2)
water quality.
SECTION 2. lUrId YE IT FURTHER ENl..CTEId, That it is the iftteftt sf the
Geftel'all..
88e~ly
that the J?'bl:131i€l Sem@@ C@mmissi@ft alls1,,? a p'bl:l3li@ 'bltility @€lmp8:l'l:;Y
tEl I'e@ElveI' the a@t'bl:al @Elsts ift@l:il"Fe€l ift @smply;illg with the F€lrest CElftser'latisft A8t.
SECTION 2.
AND
BE IT FURTHER ENACTED, That this Act shall take effect
October 1, 2009.
Approved
by
the Governor,
May
7, 2009.
.
...
,
-11­
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Mihill, Amanda
From:
Sent:
To:
Raquel Montenegro [rmontenegro@mncbia.org]
Monday, November 22, 2010 1:42 PM
Floreen's Office, Councilmember; Leventhal's Office, Councilmember; Berliner's Office, Council member
Mihill, Amanda; Faden, Michael
Cc:
Subject: comments on Bill 53-10 for the Nov 22 T&E worksession
To the T&E Committee:
below please find comments that have been drafted by members of the MNCBIA (Maryland National Capital Building
Industry Association) on Exp Bill 53-10. While the comments are in draft form (and were to have been presented at
tomorrow's public hearing), we would welcome the opportunity to present them to the Committee at its worksession this
afternoon.
In 2009, the 5tate Forest Conservation law ...
• was amended to tighten certain exemptions when the General Assembly passed 5B 666. (specificallYi reduction
from 40K sf to 20K sf for single-lot exemptions and expansion of the opportunities to utilize forest conservation
fee-in-lieu funds).
• specific recommendations made by the Governor's 2009
No Net Loss ofForest Task Force;
there was unanimous
agreement that these changes were reasonable and could increase forest conservation throughout the state.
Exp Bill 53-10
• incorporates the forest clearing threshold reduction from 40K sf to 20K sf
beyond the single-lot exemptions
and
• expands the opportunities to utilize forest conservation fee-in-lieu funds.
• amends the variance process, which as is pointed out, is not a state-required mandate.
However,
it appears that the forest clearing threshold reduction amendment might have been mis-interpreted.
• 5B666 requires that only the "single-lot exemption" criteria for forest clearing be reduced from 40K sf to 20K sf. Bill
53-10 proposes to change this clearing threshold in other places throughout the law
not
required
by 5B666 (lines
28,41,57, 75, and 85). The changes incorporated under Exp Bill 53-10 expands the drop in threshold from single­
lot exemption to public utilities, ROWand County highway projects
RE: Variance ... the
No Net Loss Taskforce
never proposed or even discussed the variance amendment.
• Montgomery County already has a relatively stringent variance process, which makes the application of this
standard extremely costly and time-consuming, both for applicants and the County, with little-to-no environmental
benefit.
• it is unclear which variances associated with different types of Forest Plans will be able to be approved by the
Planning Director vs. the Planning Board, and which will come before the Planning Board vs. the Planning Director
(lines 94-95).
• line 95 creates lack of clarity. How is 'appropriate' defined? Who determines it? When is the applicant notified?
• line 136 ' ... unwarranted hardship' has generated different interpretations as to what constitutes an
unwarranted
hardsn.p,
generating different approaches conflict between DEP and P&P.
• Lines 156 ' ... maintenance of existing forests, and achieving urban canopy goals' - what are those goals?
Thank you for your attention to these comments and welcome the opportuity to discuss them.
Raquel D. Montenegro
Raquel D. Montenegro
Associate Director, Legislative Affairs
Maryland National Capital Building Industry Association
11122/2010
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Conservation Montgomery, Inc.
'Woriine
togetlier
to enfiance our
quality of
life
TESTIMONY
Regarding Montgomery County Council Bill 53-10 to Amend the Forest Conservation Law
Delivered by
Arlene Bruhn
Board of Directors, Conservation Montgomery
November 23, 2010
My name is Arlene Bruhn, and I live in Bethesda. Thank you for the opportunity to testify on behalf of
Conservation Montgomery.
My initial plan was to discuss variances. However, yesterday, I learned that the passages to which I
objected have been withdrawn and that Draft No. 1 of Bill 53-10 is no longer under consideration. The
bill you have before you should be Draft
#2
and has no passages that automatically grant variances.
Is that correct, Madam President? Going forward -- I caution you never to assume, more accurately
never to make a legal presumption, that a request for forest or tree variance is completely accurate.
Mistakes are often made regarding species, age, health, diameter - the list is long. Tree removal
typically has a negative economic impact on neighbors. To continue to allow tree take-down to
eliminate construction delays ignores the needs of the community and, worse, opens the door to the
hen house and invites the fox in to feast.
I am here today to emphasize that Bill 53-10 should in no way be assumed as all that is needed to
revise our Forest Conservation Law (FCL). The FCL is long overdue for revisions that address our
current development patterns in the county. Overall county forest and tree cover now stands at less
than 29% according to 2008 aerial photographs. In our urban areas, forest cover is 12% below what
is considered a sustainable level.
What is needed are tree protections and prevention of further destruction of forest and tree canopy.
Our county needs to make a fundamental shift in urban environmental planning to focus on mature
tree preservation. Instead of demolishing healthy mature trees and forests to replace them with
saplings, we need to find innovative ways to avoid forest fragmentation. The time to start is today,
better yet, 20 years ago.
I have heard people in this room say, "But we have lots of trees." Or, "I thought you supported 'smart
growth.' " They miss the point. Ignoring the environmental services delivered by large trees and
forests is not smart. And crowding concrete and asphalt into our urban core without the benefit of
green space to complement the development is not smart, nor does it keep our communities livable.
By neglecting to enact urban tree legislation and allowing more destruction of trees along our county
streets - I add with no budget for street tree maintenance or replanting -- we have been wasting our
environmental capital. It is time to stop exploiting local natural resources with a cavalier disregard for
water quality and the Chesapeake Bay. Our county deserves a stronger forestry law and an urban
forestry program with a countywide urban tree canopy goal. Bill 53-10 only brings us to minimum
compliance with State law. Our county deserve better than the minimum standard.
P.O. Box 7292
Silver Spring, MD 20907
240-793-4603
ConservationMontgomery@live.com
WWW.ConservationMontgomery.org
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EXPEDITED BILL 53-10, FOREST CONSERVATION - CONFORMING
AMENDMENTS
******
GLEN ECHO HEIGHTS CITIZENS ASSOCIATION
TESTIMONY TO MONTGOMERY COUNTY COUNCIL AT HEARING TUESDAY,
NOVEMBER 23, 1 :30 PM
My name is Harry Pfohl and I'm testifying as the president of Glen Echo Heights
Citizens Association.
******
GLEN ECHO HEIGHTS
Our association represents a very old community of 484 homes situated within the
Potomac River Valley in lower Montgomery County. We have a very serious problem
retaining our once substantial and now greatly diminished arboreal cover. We are in
discussion with other communities along the Palisades and have found that our problem
is common to all of us and our sentiments are broadly shared; we are all profoundly
distressed at the huge amount of loss that we are experiencing. But, we are all currently
without recourse and the law as proposed does nothing for us.
We have still have a few significant tracts of urban forest where the continuous canopy
totals perhaps as much as two or three acres. This continuous forest consists of
adjoining separately owned lots which typically range in size from 9,000
ft.2
to 15,000
ft.2
Although the size of the continuous forest exceeds 20,000 sf as proposed in the
amended law, our individual lots are not subject to any preservation constraints
whatsoever and hence the continuous forest is completely vulnerable to destruction.
THE PROBLEM
PLEASE SEE THE ATTACHED PHOTOS - 26,000 SQUARE FEET, ONE OWNER,
TWO SEPARATE LOTS, AND PART OF SEVEN CONTIGUOUS LOTS OF ONCE
CONTINUOUS FOREST. WHAT YOU SEE ON THESE PHOTOS IS THE NORM, NOT
THE EXCEPTION FOR OUR NEIGHBORHOOD.
1
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COST
&
BENEFIT CONSIDERATIONS
Considering profit and loss the forest conservation law in place at present:
• Enables the building business to operate profitably in our community without
environmental/ecological constraints pertaining to tree cover and underbrush,
and
• Enables the construction of very large homes, which provides for more revenue
for the County
But at what cost? Loss of trees and canopy results in public and private costs:
Lost economic benefit - trees and canopy:
• Decrease heating and cooling costs for homes in the neighborhood
• Reduce need for bigger, more extensive man-made stormwater management
systems
• Increase property values
Lost environmental benefit - trees and canopy provide:
• Onsite stormwater capture and filtration (cleaning)
• Recharges aquifers
• Cleans polluted (non-attainment) air
• Prevents erosion with soil and hillside retention and reduces sediment flow to
the Bay
• Helps in controlling TMDL being discharged to Potomac/Chesapeake
• Provides carbon capture and helps mitigate global, and local, climate change
• Provides extensive wildlife habitat, including for migratory birds
Lost Community benefit - trees and canopy provide:
• Rich aesthetics and wonderful, defining character
• Privacy and play space
• Creates/maintains more comfortable microclimates, especially in summer w
shade and breezes
• Supports outdoor orientation of community, health and well-being
It is ironic that the County DEP is building rain gardens at County expense on privately
owned residential lots in our hilly terrain at $6-$7000 per rain garden in order to capture
storm water runoff that would normally be captured by urban forest and undergrowth
that has been destroyed. The purpose is to bring storm water quality into compliance
with mandated EPA standards.
2
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Wouldn't it make more sense to minimize ecological and environmental destruction
resulting from new construction and limit the amount of public money spent later to
compensate for environmentally unsound construction practices?
WE NEED HELP - A PROPOSED SOLUTION
We need a law that protects continuous forest composed of contiguous lots
under separate ownership as is the case in our communities,
Le.,
please draft the
language to protect continuous canopy regardless of the number of lots under
that canopy.
And, please require the County bureaucracy to enforce vigorously existing and new
provisions that are intended to protect trees.
Thank you for this opportunity to provide input to the Council
Harold Pfohl, President
Glen Echo Heights Citizens Association
3
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November 23,2010
5104 Elm St., Bethesda MD 20814
(301)652-6359
email -theelms518@earthlink.net
Civic Federation Testimony to County Council on Expedited Bill 53-10, Forest Conservation law
I am Jim Humphrey, testifying on behalf of the Montgomery County Civic Federation as Chair of
the Planning and Land Use Committee. At their November 17, meeting the MCCF Executive
Committee voted unanimous support of the following position on Expedited Bill 53-10, Forest
Conservation law confonning amendments.
We are disappointed that this is not the set of comprehensive amendments to the county forest
conservation law before you today which the Planning Board and Department staff, the Council
T&E Committee, and the Forest Conservation Advisory Committee have been working on for
quite some time. That having been said, we do support the goal ofthis bill to bring county law
into alignment with the standards in state law. But we do have concerns with the section related to
variance approval.
We are concerned with the proposal in the bill to allow the Planning Director to approve variances
to forest conservation plans. We oppose the granting of this authority, as we believe that since the
Planning Board approves the plans they should also be the body to approve variances. If, however,
the Council should decide to grant the Director this authority, as you granted authority for Director
approval oflimited site plan amendments 3 years ago (ZTA 07-05), the MCCF believes the
Council should direct that the same process be applied to forest conservation variances as that for
limited site plan amendments.
We urge that following the approval of a forest conservation plan variance by the Director, the
approval be listed on the agenda for the next Planning Board session, under IIOther Consent Items
on the Consent Agenda. This listing should include the property location, in a fonn readily
understood by the public, and a description of the variance that was granted. The benefits are
twofold. The public will be infonned of all approved variances. And the Board will retain a
degree of authority with their yes-or-no vote on the Consent Agenda, as well as being alerted to the
number and location of approved variances in order to consider the possible cumulative impact.
ll
Finally, we ask the staff to investigate why the text of existing law for
"22A-21 (e). Approval
procedures; conditions.
"
printed in the bill (lines 124 through 130) does not match the language in
the online County Code posted on the American Legal Publishing website. Thank you.
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Montgomery County Council Hearing on Expedited Bill 53-10
November 23, 2010
My name is Marcia Rucker, and I am here today as an individual. I thank you for this
opportunity to tell you about my neighborhood's struggle to keep our trees and to ask the
Council's help.
In the nearly 50 years since my family moved in, our neighborhood has lost probably half its
trees-street trees and trees on individual lots. A lot of my neighbors chose to live here
because of the trees, and they are passionate about the trees .
...And the neighbors prove that by what they do. They sign up to clear the right-of-way of
invasive vines that threaten street trees. On streets where a house is about to be torn down
and rebuilt, they organize to plead with the builder not to clear-cut. They ask D.O.T. to do a
mass replacement of trees removed from the right-of-way, and when they're told the County
needs signed authorizations from individual homeowners to do that, they knock on every door in
the community, and they get the authorizations. They draft a set of "Best Practices" they want
builders to use, and they approve systematically reaching out to the builder community with
incentives to adopt those practices.
But tree loss can't be stemmed by just one neighborhood-or two or ten, since others are doing
many of the same things we are. The decline in County tree cover can't be reversed unless the
Council acts. Fortunately, the State has just given us a perfect opportunity to protect the forest
we still have and build back forest lost, both up-County and down-County. That opportunity is
the need to amend the Forest Conservation Law now to conform to State law.
I want to urge that the Council incorporate the following into the FCL during the amendment
process:
• ramped-up, realistic reforestation and afforestation requirements, including lengthening
the maintenance and management period for new planting to get to full replacement of
trees cut during construction
• a County "no-net-Ioss" policy (endorsed by the Council in 2003 but never implemented)
• a County urban tree canopy goal, which 36 Maryland jurisdictions already have, as does
Fairfax
• extension of tree protection to residential lots of whatever size, something that trees in
the Town of Chevy Chase, Chevy Chase Village, Garrett Park, and Somerset, among
others, have enjoyed for years
For my neighborhood, this last provision is the most clearly crucial. In truth, I believe that the
County as a whole will lose irretrievably the economic and environmental edge our forest
resources give if the Council fails to roll tree protection law for small properties into the FCL.
Innovative solutions have been proposed: In the real world, forests and stream barriers exist
independently of property lines; law can and should be written to recognize this reality and
protect viable forest, regardless of how individual pieces of it may be owned. This extension
has been debated for too long. I urge the Council to act on it now.
I wish the Councilmembers well in the job of preserving and rebuilding our forest, and I am
grateful for their serious work toward that end.
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Montgomery Soil
Conservation
District
18410 MuncasterRoad -
Defflood.
MD20855 • Phone
(301) 590·2855
VvWW.montgomeryscd,org
.
Novembe.r
2:3~
2010
The
Honorable
Nallcy
Floreen,
Pi'esidtml
Montgomery
COWlty
Council
Ste'lla R Werner CouncilOITicc
Building
l.OOMaryalnd
Avenue
Rockville, NID 20850
Re: Written Testimony
for
lhe Public
HcadngJ'egan:l:h~g
Expeditf.!d Bill 53-10 Forest Conservation··
Conforming
Amenclmc:nls
Dear
Council
Presidl;;nLFlon::cn
and pmncihnembers:
The MontgomerySoi(
Con.servation
District (MSCD) J3oardof
Sllliervi~o
..
s has
plllticipatedinthepllblicprocess
for proposed runendmentsto the
COllnly'!>
FOfcstCrmr;ervntiOll [m".'
(FeLY
for:; years.
Throughoutthis
perit;a.
we
have
urged the
CouncHto
provi<le
mcanlog)hl cbanges to
theCounty'sFCLthat
\Vol.lldlnsute
thal our
agricultUral
communityertioys
Ihl;same
exemptions·granted
to
farmers
throughout.
lhe.
slate
by
thcSUtlC
FC.L
Now the Council
is
once
ag~jn
cOllsidering
amendl11.ents intended
to
conI:onn
thcCOtmry
FeL
will) state Is\\\ and
,.,,;e again
re'Spcclfully
request
that
agricultural
exemptions be included in Ih1.11
"flort
One
ofthestated
purposes
of Expedited BillS3-10 is
lo"c(1nJ{)nl1cxistjn~(Co.unty)lawto
Statelaw'\
'Wbi)e
MSCD does
not
wish to
tak~
a position on anyspecifie pnwisionsofExpooite4 J3ill53-10, we do
fi3el
jhatthis
legislation
offers
~m
opportunity
to
coliform
other
a.spects.
ofthc.
CQMtylaw with.
State
Jaw.
One
ofthebiggt:st
deviations
from £lal.c
hrw
is
fv1otltgomel},
County's requirement
that forest
h~rve!>t
operation.1I
hcsubJcetcd
to
an
additiomtllcvcl
ofrevic\v
by
the
County
Forest Conservation
Coordinator.
ntis
anomalyofCollnty
la:\1i.:
hall
.impat::{cd memhf;fs
aftne
agricultural community,
al)~
forqed
others
ltl
rcconsklcrtheirforestmanllge111ent
ohjectives,
Another issue
ofconc.emfot
MSCD is
whether
a.gl'lcllJturnlpractices
enjoytlie
sarne.exemptionsunder
the
County
peL
as
.th~y
do
undcrSlatc law.
Atone point.
the
County proposed requiring
agriculttll'aI·
operators
(0
submit..
tl.
Dedaratioll
of
Intent
fwagJ'icuftu.ral
practi.ce;s.
incl?dillg conservation.
work..... Th.is
ilSnul(,mly
inconsistcn
t
w
ilh
.he
Intent
of
the
agricultuml
exemption
provisionsof
the Statt.': law; but
it
is (:xccs;qively hurden!lome.
tl1
l1llr
tanners,
Putting unnecessat}'
regulation
<md
rl.!:;.lricliom'
(!n(lUrfal'mers
I'.educestheir
competitiveness and
a.bility
to
effectively manage
resources.
The
Foresl
Cl1nSCrVl:Ilion
l.a:w is intended
toaddl'ess
foresttemoval
dming
the de\teiopment
proce,S$.
Jl()t.f..'tcmCatu
obstacle
"0
agrh.:ullund
up..
:!
uLiuns
and forest
managemont
goals. The:: MSc:D
00<'1'"
(,.~rsUpCI'Vi8Ct[':\WOU
Idlilccta
wC'JI'k\vithCollnciJ
staff
and tvrNCPPC to insure that
ollr
agricullural
coulmunity
is aff(wded
the same
opportunities granted
to otber cOllniies lhnwgh
the
State FCL.
We look
torv.'ard
to
your
response.
4~'~4~
Sin.ct.'.relYI '.
p..
~
. .
Ge~Chlider,Chairrtlan
District
.Montgomery
Soil Conservation
Ail Dislril:l seNices are offcrcd·OI1
a
norrdiscrim{natbr:j
ba$;$,
without regard
to
race,
(Y)/or.
nfltioo%fl'QJI1.
religjon,
sex.
"gEI,
marlia/staiw{or handicap.
CONSERVATION· DEVELOPMENT
-SE1..F-GOVERNME:NT
®