T&EITEM#2
November 22, 2010
Worksession
MEMORANDUM
TO:
FROM:
Transportation, Infrastructure, Energy & Environment Committee
~MiChael
Faden, Senior Legislative Attorney . (
.
Amanda Mihill, Legislative
Analyst~f
SUBJECT:
Worksession:
Expedited Bill 53-10, Forest Conservation -
Amendments
Conforming
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, 20
IO.
A
public hearing is scheduled for November 23. Action is tentatively scheduled for November 30.
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 that the Planning Board 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 was
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 Section 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).
Issues for 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:
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• 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;
• 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 (©8, lines 155-156).
Council staff recommendation:
conform county law to state law.
2. Should the Planning Director have the authority to approve certain forest conservation
variances?
Current County law requires the Planning Board to approve certain forest
conservation variances. The Planning Director approves the forest conservation plans to which
those variances are attached. 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 (©8, lines 134-145).
Council staff
recommendation:
allow the Planning Director to approve these variances.
Council staff recommendation
The Council has not received any correspondence on Bill 53-10 and Council staff has not
identified any additional issues. As noted above, the public hearing is not scheduled until after
the Committee worksession. Barring any issues presented at the public hearing,
Council staff
recommends approval of Bill 53-10.
If significant issues arise during the public hearing, a
follow-up Committee worksession can be scheduled.
This packet contains:
Corrected Expedited Bill 53-10
Legislative Request Report
Planning Board transmittal memorandum and staff report
F:\LAw\BI LLS\ I053 Forest Conservation\T&E Memo.Doc
Circle #
1
9
10
2
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CORRECTED COpy
Expedited Bill No.
53-10
Concerning: Forest Conservation ­
Conforming Amendments
Revised:
10/25/2010
Draft No.
L
Introduced:
October 26, 2010
Expires:
April 26, 2010
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: ...... .:.: o=nc.: : .e_ _ _ _ __
N
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:
(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
Underlining
[Single boldface brackets]
QQu.b1f;LUflderlining
[[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, Maryland approves the following Act:
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Expedited Bill 53-10
1
Sec. 1. Sections 22A-S, 22A-8, 22A-9, 22A-12, 22A-21, and 22A-27 are
amended as follows:
22A-S. 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
3
4
5
6
7
8
9
10
11
12
13
14
(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
15
16
17
18
19
approved forest conservation plan or tree save plan; and
*
*
*
(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
_2 _
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Expedited Bill 53-10
28
29
30
(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,
31
32
33
(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;
*
34
35
36
37
38
39
40
*
*
(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)
the right-of-way existed before July 1, 1992;
forest clearing will not exceed a total of [40,000] 20,000 square
feet and
41
42
(2)
43
44
45
(3)
the construction will not result
grading of:
(A)
(B)
III
the cutting, clearing, or
any forest in a stream buffer,
any forest on property located in a special protection area
which must submit a water quality plan,
46
47
48
(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;
*
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
_3 _
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Expedited Bill 53-10
54
55
56
57
58
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
*
59
60
61
62
63
*
*
22A-S. Utility lines.
*
*
64
65
66
*
(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
67
68
69
70
71
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.
_4 _
F:ILAWIBILLSII053 Forest ConservationlBiIl2 Corrected. Doc
72
73
74
75
76
77
78
79
80
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Expedited Bill 53-10
81
82
*
*
*
22A-9. County Highway Projects.
*
*
*
83
84
85
(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.
*
*
86
87
88
89
*
22A-12. Retention, afforestation, and reforestation requirements.
(b)
90
91
92
Retention
*
*
*
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 gualifies for g
variance under Section 22A-21:
93
94
95
96
97
!A2
Any
tree, shrub, or plant that
IS
rare, threatened, or
98
99
endangered under:
ill
Cii)
the Federal Endangered Species Act of 1973 in 16
U.S.C. §§ 1531
100
101
102
=
1544 and in 50 CFR
11.;.
the Maryland Nongame and Endangered Species
Conservation Act, Title 10, Subtitle 2A of the
Natural Resources Article of the Maryland Code;
or
103
104
105
106
107
(iii)
COMAR 08.03.08;
an
Any
tree that is:
ill
part of g historic site,
_5 _
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Expedited Bill 53-10
108
109
Oi)
(iii)
associated with
~
historic site, or
designated
Qy
the State or County as
State, or County champion tree; or
~
national,
110
111
112
113
114
(Q)
Any tree with
~
diameter, measured at 4.5 feet above the
ground, of:
ill
Cii)
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.
*
*
*
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
(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.
_6 _
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Expedited Bill 53-10
134
135
(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.
*
*
*
136
137
138
139
140
141
142
(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. 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
22A-27. Forest
[conserva~on
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)
151
152
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
_7 _
F:\LAW\BILLS\! 053 Forest Conservation\Bill 2 Corrected.Doc
153
154
155
156
157
158
159
160
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Expedited Bill 53-10
161
162
163
164
165
166
167
168
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.
_8 _
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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.
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 PHmning Board creates
unnecessary delays fOl:Hproperty 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.
'To be requested.
To be requested.
To be researched.
Michael Faden, Senior Legislative Attorney (240) 777-7905
Amanda Mihill, Legislative Analyst (240) 777-7815
To be determined.
PROBLEM:
GOALS
MIfD
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
L."'\1PACT:
EVALUATION:
EXPERIENCE
ELSE\VIIERE:
SOURCE OF
I~'"FORMATION:
APPLICATION
WITIDN
MUNICIPALITIES:
PENALTIES:
See County Code §22A-16.
f:\law\bills \ 1053 forest conselVation\Jrr. doc
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-
MONTGOMERY COUNTY PLANNING BOARD
THE MARYlAND-NATlO:-TAL CAPITAL PARK AND PLANNING COMMISSION
055340'
March 23, 2010
:;:
o
-p
c):"J
n~:.,I:"-;l
0':'''';:(-;
~~;~~
The Honorable Nancy Floreen
President
Montgomery County Council
Stella, B. Werner Council Office Building
100 Maryland Avenue
Rockville, MD 20850
Re:
r-
N
......
,
-<
Planning Board Recommendation for revisions to the Forest Conservation' Law
and adopting State-mandated changes to local programs
Dear Ms. Floreenand Councilmembers:
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 of forest a person can remove and:;till be
exempt from submitting a forest conservation plan. It also requires persons removing or
.
cutting certain vegetation obtain a variance.
,
,
,
The Planning Board is also taking this opportun'ity to make changes that will remove'
inconsIstencies, provide clarity, and make implementing the law more efficient. Unlike a
previous PI.anning Board amendment, these proposed changes:
'
• do not i,ncrease the number of properties subject to the law
• do not increase retention or planting requirements
• do not extend the period for which planted trees must be maintained.,
8787 Georgia Avenue, Silver Spring,
Maryland
20910
Chairmar:s
Office:
301.495.4605
Fax::
301.495.1320
100
%
l1!!<:j'ded paper
www.MCParkandPIarullng.org E-Mail: mcp-chairman,@m.ncppc.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 will provide costs savings by
reducing submission requirem.ents for those subject to the law but now not required to
submit a forest conservation plan .. This proposed legislation will also reduce the
am~unt
oftime and money spent by the Planning Department on review. The submission of
these 'changes VIlas delayed for approval of Bill 34-09 so as not to confuse the Planning
Boar~'
s enforcement legislation with these changes.
The Planning Board and Planning staff are available to assj.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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MONTGOMERY COUNTY PLAl'.JNING
DEP~A..RT~1ENT
1BE t\.L\RYL.'"'.NTI-NATION.-\L C.-\.PIT,-\L PJ.... .-\l".iTI PU.N"NIN'G COl\11ITSSION
1\.K
MCPB
Item
#
December 3, 2009
l\1EMORANDUl'rI
TO:
FROM:
Montgomery County Planning Board
Mark Pfefferle
Acting-Chief, Environmental Planning
Forest Conservation Program Manager
November 24,2009
Forest Conservation Law Amendment
DATE:
S'UBJECT:
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 not propose changing the forest retention
and planting requirements or the length of the maiQ,tenance and management period.
Today's amendment incorporates elements of Bill 37-07 that received widespread
support from groups that include the regulated community, 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.
I
@
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The' proposed amendments introduced today are to provide consistency" clarity,
and efficiency to the Montgomery C01.mty Forest Conservation law. Below are the major
changes and the purposes of the changes.
Consistency
The proposed changes will make the Montgomery County Forest 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
pNR
must develop a P?licy on "no net
~oss."
Proposed Bill
!:No change required to County law.
Reduce applicability threshold on single Amend §22A-5. See line 256.
ots.
,
iN'o change required to County law - not
Reduce applicability threshold for child
~22A.
ots.
iRemove waiver for area covered by paved IN"o change required to County law not
surface.
~22A.
Amend §22A-12. See line 1136.
!Add "in perpetuity" to the offsite
[protective easement oQtion.
Amend §22A-12. See line 1028-1052.
!Add language requiring the removal of
certain trees and shrubs first obtain a
variance.
Change applicability for plaping land in the No change required to County law - not
~orest
conservation and management
~22A
tpro~am.
IChange
in~
lieu fee.
iClarify how in-lieu fees can be spent
IN"o changerequired to County law - set
[by resolution.
lAmend 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 clarified the applicability and submission requirements.
Today's proposal re-introduces the 3 levels. The flrst 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 third.1evel requires the submission of a
N
aturalResources InventorylForest Stand Delineation and a forest conservation plan.
The proposed amendment to the Forest Conservation law also clarifies 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
~dd
missing definitions: afforestation
~end §22A~3.
See l.ines 32-43, lines
~eshold,
applicant, ··certified arborist,
56-59, lines 90-97, lines 119-120, lines
environmental buffer, medium density
125-131, and lines 143-145.
esidential area, natural resources
inventory, qualified professional, stream
Ibuffer, tree expert? and tree protection
[plan.
IClarify the applicability section.
Amend §22A-4. See lines 178-192.
·dentifies the types of submissions needed iAmend §22A-4. See lines 193-282 .
.cor each review leveL
, Reduces the amount of forest removed for A.mend §22A-9. See line 571.
pighway projects from 40,000 square feet
-
to 20,000 square feet.
Amend §22A-10. See lines 639-746 ...
~dentifies
specific submission
Irequirements.
~dentifies
planting preferences.
iAmend §22A-12. See lines 983-996.
Clarifies that in-lieu fee money must be iAmend §22A-12. See lines 1230-1232.
paid prior to any land disturbing activities.
Requires that maintenance and
iAmend §22A-12. See line 1252.
management agreements include the
control of non-natlve and invasive plants.
Allows for the financial securities to be Amend §22A-12. See lines 1267-1268.
,
collected for tree save plans.
Amend §22A-12. See lines 1275-1283.
!Clarifies what the financial security
amount should equal and what the estimate
Ineeds to include.
k;.dds an appeal section for tree inventories k;.mend §22A-20. See lines 1370--1392.
land tree protection plans approved by the
tplanning Director.
iAmend §22A-12. See lines 1396-1419 .
tpermits Planning Director approval of
.certain variances.
I
Efficiencv
The proposed amendment provides efficiency to the regulated community and the - .'
Planning Department. Clearly identifying 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 Planning 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 cQnservation law amendment does not address .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.
Proposed Bill
Sections Impacted
Adds an appeal section for tree inventories
~end
§22A-20. See lines 1370-1392.
ind tree protection plans approved by the
Planning Director.
iPermits Planning Director approval of
[Amend §22A-12.
See
lines 1396-1419.
certain variances. '
RECOl\11VIENDATION
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.
'