Agenda Item #6.2
October 26, 2010
Introduction
MEMORANDUM
October 22, 20lO
TO:
FROM:
County Council
It
Michael Faden, Senior Legislative
Attom~y~
Q
~"'\Amanda
Mihill, Legislative Analyst.'ft/f\ivj\.LXJ
"
..
Introduction:
Expedited Bill 53-lO, Forest Conservation -
Amendments
SUBJECT:
Conforming
Expedited Bill 53-lO, Forest Conservation - Conforming Amendments, sponsored by the
Council President at the request of the Planning Board, is scheduled to be introduced on October
26,20lO. A public hearing is tentatively scheduled for November 23 at 1:30 p.m.
In 2009, State law was amended to tighten certain exemptions in the state forest conservation
law. 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, and clarify how money in the Forest Conservation
Fund can be used.
In addition, current County law requires the Planning Board 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 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.
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 will
be introduced on October 26.
This packet contains:
Expedited Bill 53-lO
Legislative Request Report
Planning Board transmittal memorandum and staff report
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Expedited Bill No.
53-10
Concerning: Forest Conservation ­
Conforming Amendments
Draft No. _1_
Revised:
10/21/2010
Introduced:
October 26,2010
Expires:
April 26, 2010
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: _---:-:--:------::_ _ __
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)
revise certain variance requirements; and
(4)
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, Maryland approves the following Act:
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Expedited 811153-10
1
Sec.
1.
Sections
22A-S, 22A-8, 22A-9, 22A-12, 22A-21,
and
22A-27
are
amended as follows:
22A-S.
2
3
4
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)
6
7
8
9
does not require a special exception;
10
11
12
(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,
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
(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
Q
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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
(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 m the cutting, clearing, or
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;
*
*
*
40
41
42
43
44
45
46
47
48
49
50
51
52
(s)
(l)
an activity occurring on a tract of land less than 1.5 acres with
no existing forest, or existing specimen or champion tree, and
53
@
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Expedited Bill 53-10
54
55
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
*
56
57
58
59
60
61
62
63
64
*
*
22A-S.
(b)
Utility
lines.
*
*
*
65
66
67
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.
68
69
70
71
72
73
(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.
74
75
76
77
78
79
80
o
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Expedited Bill 53-10
81
82
83
84
*
*
*
22A-9.
(b)
County Highway Projects.
*
*
*
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.
*
*
*
85
86
87
88
89
90
91
22A-12.
(e)
Retention, afforestation, and reforestation requirements.
*
*
*
Standards for reforestation and afforestation.
*
*
*
92
93
94
95
(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
96
97
98
99
100
101
102
103
104
requirements.
*
105
106
*
*
22A-21. Variance provisions.
(a)
107
108
Written request.
[A person]
An
applicant may request in writing a
variance from this Chapter or any regulation adopted under it if the
o
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Expedited Bill 53-10
lO9
person demonstrates that enforcement would result in unwarranted
hardship to the person. A request for a variance [waives] suspends the
time requirements in Section 22A-ll until the Planning Board, or
Planning Director, has acted on the request.
*
*
*
110
111
112
113
114
(c)
Referral to other agencles.
Before considering a varIance, the
Planning Board must refer a copy of each request to the County
Arborist, Planning [Department] Director, and any other appropriate
[officials or agencies] agency for a written recommendation before
acting
on
the
request.
[Recommendations
must
be]
If
~
115
116
117
118
119
120
121
122
123
124
recommendation on the variance is not submitted to the Planning
Board within 30 days [from the receipt by the official or agency of the
request or] after the referral, the recommendation [should] must be
presumed to be favorable.
*
(e)
*
*
The Planning Board [, or the
Approval procedures; Conditions.
~
125
126
District Council on a development plan,] or the Planning Director for
Forest Conservation Plan associated with
~
sediment control plan
127
128
must [make fmdings] find that the applicant has met all requirements
of this Section before granting a variance. Appropriate conditions
may be imposed to promote the objectives of this Chapter and protect
the public interest.
*
*
*
129
130
131
132
133
134
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:
135
G
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Expedited
Bill 53-10
136
137
138
139
(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, maintenance of existing forests, and
achieving urban canopy goals, and must not revert to the [general
fund] General Fund. The permanent preservation of priority forests,
including identification and acquisition of a site, may be substituted
for reforestation and afforestation at a rate of 2 acres of forest
preservation for each acre of planting required. Funds remaining after
all reforestation and afforestation requirements are satisfied may be
spent on any other tree conservation activity, including street tree
planting.
*
*
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
*
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:
155
Nancy Floreen, County Council
Date
156
Approved:
157
Isiah Leggett, County Executive
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.
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 Planning 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.
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 AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
See County Code §22A-16.
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MONTGOMERY COUNTY PLANNING BOARD
THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION
055340
March 23, 2010
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
--i
-<
Dear Ms. Floreen and Coundlmembers:
On December 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
I,
2009. The bill reduces the amount of forest a person can remove and still 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 opportunity to make changes that will remove
inconsistencies, provide clarity, and make implementing the law more efficient. Unlike a
previous Pl,anning Board amendment, these proposed changes:
• do not increase 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
Maryland 20910
Chairman's Office: 301.495.4605
Fa::.;:: 301.495.1320
100% recycled paper
www.MCParkandPlanning.org E-Mail: mcp-chairman@Dlncppc.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 requirements for those subject to the law but now not requiredto
submit a forest conservation plan .. This proposed legislation will also reduce the amount
oftime and money spent by the Planning Department on review. The submission of
these changes was delayed for approval of Bill 34-09 so as not to confuse the Planning
Boar~rs
enforcement legislation with these changes.
The Planning Board and Planning staff are available to assist the Council in their review
of the proposed legislation.
SincerelYI
Chairman
RH:MP:ss
cc:
Planning Board
Rollin Sta'nley
Mark Pfefferle
Attachments
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~IONTGOMERY
COUNTY PLANNING DEPARTMENT
11m
~L\RYL-\ND-NATrON,-U.
CAPITAL
P,-\.RK
.-\ND
PU.N'NING
CO~I1USSION
MCPB
Item
#
December 3,2009
:MEMORANDUM
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 not propose changing the forest retention
and planting requirements or the length of the maintenance 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, and 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 County 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
Bi1l666 and where the amendments need to occur in the Forest Conservation law.
Proposed Bill
Senate
Bill 666
No change required to County law.
DNR must develop a policy on "no net
oss."
Reduce applicability threshold on single Amend §22A-5. See line 256.
ots.
No change required to County law - not
!Reduce applicability threshold for child
·n22A.
ots.
!Remove waiver for area covered by paved No change required to County law - not
surface.
in 22A.
Amend §22A-12. See line 1136.
!Add "in perpetuity" to the offsite
!protective easement option.
!Add language requiring the removal of
!Amend §22A-12. See line 1028-1052.
certain trees and shrubs first obtain a
iVariance.
~hange
applicability for placing land in the INo change required to County law - not
L'orest conservation and management
in22A
program.
Change in-lieu fee.
iNo change required to County law - set
!by resolution.
Clarify how in-lieu fees can be spent
!Amend 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 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 third level requires the submission of a
Natural Resources InventorylForest Stand Delineation and a forest conservation plan.
The proposed amendment to the Forest Conservation law also clarifies ambiguous
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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
Amend §22A-3. See lines 32-43, lines
IAdd missing definitions: afforestation
threshold, applicant,' certified arborist,
~6-59,
lines 90-97, lines 119-120, lines
environmental buffer, medium density
125-131, and lines 143-145.
esidential area, natural resources
~ventory,
qualified professional, stream
Duffer, tree expert, and tree protection
IPlan.
Amend §22A-4. See lines 178-192.
Clarify the applicability section.
~dentifies
the types of submissions needed Amend §22A-4. See lines 193-282.
~or
each review level.
lReduces the amount of forest removed for k\mend §22A-9. See line 571.
lhighway projects from 40,000 square feet
-
to 20,000 square feet.
k\mend §22A-10. See lines 639-746.
dentifies specific submission
requirements.
Tdentifies planting preferences.
ilAmend §22A-12. See lines 983-996.
Amend §22A-12. See lines 1230-1232.
Clarifies that in-lieu fee money must be
paid prior to any land disturbing activities.
Amend §22A-12. See line 1252.
Requires that maintenance and
management agreements include the
control of non-native and invasive plants.
!Amend §22A-12. See lines 1267-1268.
Allows for the fmandal securities to be
collected for tree save plans.
k\mend §22A-12. See lines 1275-1283.
Clarifies what the financial security
amount should equal and what the estimate
!needs to include.
IAdds an appeal section for tree inventories IAmend §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.
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 Bil134-09
The proposed forest conservation 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 Amend §22A-20. See lines l370-l392.
~d
tree protection plans approved by the
flanning Director.
!permits Planning Director approval of
!Amend §22A-12. See lines l396-1419.
certain variances.·
RECOMMENDATION
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.