Agenda Item
#
15
November 23,2010
Public Hearing
MEMORANDUM
TO:
FROM:
*
County Council
Michael Faden, Senior Legislative Attorney.
Amanda Mihill, Legislative
Analys~1AJ19.-
Public Hearing:
Expedited Bill 53-10, Forest Conservation - Conforming
Amendments
SUBJECT:
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
&
Environment Committee worksession is tentatively
scheduled for November 22. Action is tentatively scheduled for November 30.
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;
• 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.
In addition, 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.
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).
This packet contains:
Corrected Expedited Bill 53-10
Legislative Request Report
Planning Board transmittal memorandum and staff report
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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:
...!N..!.:o~n!.::e"__
_ _ _ _ __
ChI _ _, 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]
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 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) 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
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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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29
30
31
(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,
32
33
34
(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;
*
*
*
35
36
37
(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;
*
*
*
In
38
39
40
41
42
43
44
45
46
the cutting, clearing, or
47
48
49
50
51
52
(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
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. Utility
lines.
*
*
*
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
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.
67
68
69
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71
72
73
74
75
76
77
78
79
80
o
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Expedited Bill 53-10
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*
*
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84
22A-9. County Highway Projects.
*
*
*
(b)
If the forest to be cut or cleared for a County highway project equals
or exceed [40,000] 20,000 square feet, the constructing agency must
reforest a suitable area at the rate of one acre of reforestation for each
acre of forest cleared.
*
85
86
87
88
*
*
89
90
91
92
93
94
95
96
22A-12. Retention, afforestation, and reforestation requirements.
(b)
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 qualifies for
variance under Section 22A-21:
(A}
~
97
Any tree, shrub, or plant that
endangered under:
IS
rare, threatened, or
98
99
100
101
ill
(ii)
the Federal Endangered Species Act of 1973 in
lQ
u.s.c.
§§1531
=
1544 and in 50 CFR 17;
the Maryland Nongame and Endangered Species
Conservation Act, Title 10, Subtitle 2A of the
Natural Resources Article of the Maryland Code;
or
(iii)
102
103
104
105
106
COMAR 08.03.08;
107
aD
Any tree that is:
ill
part of
~
historic site,
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Expedited Bill 53-10
108
109
110
111
112
(ii)
(iii)
associated with
~
historic site, or
designated
Qy
the State or County as
State, or County champion tree; or
~
national,
.cg
Any tree with
ground, of:
~
diameter, measured at 4.5 feet above the
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
(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.
*
*
*
133
22A-21. Variance.
@-
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135
136
137
138
139
(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.
*
*
*
140
141
142
143
144
145
146
147
148
(e)
Approval procedures; Conditions.
Planning Director for
~
The Planning Board or the
~
Forest Conservation Plan associated with
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.
*
*
*
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)
149
150
151
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
152
153
154
155
156
157
158
159
160
o
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Expedited Bill 53-10
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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.
@
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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 Fotest 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 fo:rproperty 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:
GOALSAND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
IDTHIN
MUNICIPALITIES:
PENALTIES:
See County Code §22A-16.
t\law\bills\1053 forest conservation\lrr.doc
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MONTGOMERY COUNTY PLANNING BOARD
THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION
,0553~O
March
23, 2010
The Honorable Nancy Floreen
President
Montgomery County Council
Stella, B. Werner Council Office Building
100
Maryland Avenue
Rockville, MD
20850
Re:
N
L,.,
Planning Board Recommendation for revisions to the Forest Conservation Law
and adopting State-mandated changes to local programs
Dear Ms. Floreenand Councilmembers:
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
1,2009.
The bill reduces the amount of forest a person can remove andsti"1 be
exempt from submitting a forest conservation 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'
incons.istencies, provide clarity, and make implementing the law more efficient. Unlike a
previous PI.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 Spring, Maqland 20910
Chairman's Office: 301.495.4605
Fax: 301.495.1320
100% n!C)Ided
paper
www.MCParkandPlanning.org E-Mail: mcp-ch.airman@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 will provide costs s"avings by
reducing submission requirements for those subject to the law but now not required to
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
Boar9's enforcement legislation with these changes.
The Planning Board and Planning staff are available to assist 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 PLANNING DEPARTMENT
TI-IE i\HRxLANTI-N.\TION,.Q c.\PIT• P.-lliK ;-\..i'.;1) PL\J:'.<"'"NING COT\·:L\HSSION
.Q
MCPB
Item
#
December 3, 2009
l\IIEMORANDUM
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 llot propose changing the forest retention
and planting requirements or the length of the mailftenance 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.
1
@
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The proposed amendments introduced today are to provide consistency,. clarity,
and efficiency to the Montgomery COl.lllty Forest Conservation law. Below are the major
changes and the purposes of the changes.
Consistency
The proposed changes will make the NIontgomery 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 policy on "no net
loss."
lReduce applicability threshold on single
~ots.
Proposed Bill
lNo change. required to County law.
Amend §22A-5. See line 256.
No change required to County law not
Reduce applicability threshold for child
in 22A.
ots.
Remove waiver for area covered by paved No change required to County law not
jn22A.
surface.
Add "in perpetuity" to the offsite
iAmend §22A-12. See line 1136.
protective easement option.
iAmend §22A-12. See line 1028-1052.
Add language requiring the removal of
certain trees and shrubs first obtain a
yariance.
Change applicability for pl3:cing land in the No change required to County law - not
~orest
conservation and management
in22A
IProgram.
No change required to County law set
:Change in-lieu fee.
by resolution.
Clarify how in-lieu fees can be spent
Amend 22A-27. See lines 1429-1432.
Clarity
.
DUring the numerous discussions on Bil134-07,
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 re.quire 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
@
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
\Add missing definitions: afforestation
lAmend §22A-3. See lines 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.
esidential area, natural resources
inventory, qualified professional, stream
Ibuffer, tree expert, and tree protection
tplan.
Clarify the applicability section.
Amend §22A-4. See lines 178-192.
~dentifies
the types of submissions needed \Amend §22A-4. See lines 193-282.
"or each review level.
. Reduces the amount of forest removed for Amend §22A-9 . See line 57l.
highway projects from 40,000 square feet
-
to 20,000 square feet.
Amend §22A-10. See lines 639-746.-
~dentifies
specific submission
I~
.
Irequirements.
~end
§22A-12. See lines 983-996.
~dentifies
planting preferences.
Clarifies that in-lieu fee money must be \Amend §22A-12. See lines 1230-1232.
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.
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
~eeds
to include.
\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.
fPermits Planning Director approval of
certain variances.
Efficiency
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 conservation law amendment does not addresschariges "
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
~dds
an appeal section for tree inventories
~mend
§22A-20. See lines 1370-1392.
~d
tree protection plans approved by the
(Planning Director.
(permits Planning Director approval of
Amend §22A-12. See lines 1396-1419.
~ertain
variances."
RECO:MlVIENDATION
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.