AGENDA ITEM 5B
July 23,2013
Action
MEMORANDUM
TO:
FROM:
County Council
~Michael
Faden, Senior Legislative
Att~~e~;.4
Amanda Mihill, Legislative AttomeycKf
l~
Action:
Bill 35-12, Trees - Tree Canopy Conservation
SUBJECT:
Transportation,
Infrastructure,
Energy
&
recommendation: enact with comprehensive amendments.
Environment
Committee
Bill 35-12, Trees Tree Canopy Conservation, sponsored by the Council President at the
request of the County Executive, was introduced on November 27,2012. A public hearing was
held on January 17, 2013, along with Bill 41-12. Transportation, Infrastructure, Energy and
Environment Committee worksessions were held on January 28, February 25, April 1, June 24
and July 8.
Bill 35-12 would broadly:
• establish a fee-based program to mlmmlze and compensate for the loss and
disturbance of tree canopy as a result of development;
• provide for County mitigation when tree canopy is lost or disturbed; and
• establish a fund that the County can spend for tree canopy conservation projects,
including plantings of individual trees, groups of trees, or forests, on private and
public property.
Background
How do other jurisdictions handle tree canopy protections?
At the February 25
worksession, Committee members asked Executive staff to research other jurisdictions that have
tree canopy laws and compare them to Bill 35-12. The response from DEP staffis on ©103-115.
As DEP staff noted when it transmitted this material:
This was not any easy task due to the wide variability and complexity of laws in other
jurisdictions (imagine someone trying to interpret our Forest Conservation Law, which
still sometimes confuses County staff). However, we hope this gives an indication that
(1) other jurisdictions have enacted tree protection programs and (2) the approach to
doing this varies greatly.
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DEP staff also transmitted a USDA Forest Service Study on urban tree canopy retention (see
©93-102). DEP staff noted that:
This study analyzed the recent change in the urban tree canopy in 20 jurisdictions across
the country. Clearly, some of the results of this study would not be applicable to more
rural areas of the County, but I think it is applicable in the more urbanized areas (which
are increasing). The conclusion notes "Despite various and likely limited tree planting
and protection campaigns, tree cover tends to be on the decline in U.S. cities while
impervious cover is on the increase. While these individual campaigns are helping to
increase or reduce the loss of urban tree cover, more widespread, comprehensive and
integrated programs that focus on sustaining overall tree canopy may be needed to help
reverse the trend of declining tree cover in cities."
DEP also transmitted information on several comparable jurisdictions (see ©119-131),
showing that fees charged elsewhere would substantially exceed those proposed in this Bill.
How would Bill
35-12
as introduced manage the County's tree canopy?
Many
organizations and speakers questioned different aspects of the regulatory approach behind Bill
35-12. Committee members discussed various aspects ofthe introduced bill, including:
• Why does Bill 35-12 apply only to properties that must obtain a sediment control
permit? Why not apply the Bill to all properties? Or trigger the restrictions after a
particular amount of tree canopy is disturbed?
• How would this Bill overlap the forest conservation law? Will most properties that
are subject to the forest conservation law also be subject to the tree canopy law?
Should properties subject to the forest conservation law be exempt from the tree
canopy law? Under Bill 35-12, any tree canopy that is identified as part of a forest in
a natural resources inventory/forest stand delineation and subject to a forest
conservation plan would not have to pay mitigation fees.
• Bill 35-12 would not require replacing tree canopy where
it
is removed (i.e., the bill
does not require on-site replacement when possible). Should it?
• Bill 35-12 would set a fee based on all canopy within the limits of disturbance,
regardless of how much canopy is actually removed. Should the fee structure be set
according to how much canopy is removed?
• What is the appropriate fee level? As introduced, the fee would not be applied to the
first
5%
of the area of tree canopy disturbed. When Committee members pressed for
proposed fee levels, DEP staff offered a fee scale based on the forest conservation
law's fee-in-lieu payment ($1.05 at 40,000 square feet).
• What mitigation credits should be available?
Renewing Montgomery proposal
As an alternative to the fee and credit structure that DEP advocated, a group of small
builders, Renewing Montgomery, proposed an option for smaller lots (less than 20,00 square
feet) that in their view would be less expensive, fairer, less subject to administrative discretion,
and result in more trees being replanted onsite. For the RM option, see ©147-153. Maryland­
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National Capital Building Industry Association (BIA) endorsed their approach (see BIA letter,
©154.)
Essentially Renewing Montgomery would allow, at the ownerlbuilder's option, the
applicant to commit to plant a certain number of trees onsite, regardless of whether any trees
were previously there or were removed. The applicant would have the option to pay a set in-lieu
fee, somewhat lower than DEP proposed, that would be based on the cost to plant a replacement
tree. Proceeds from that fee (as with the fee originally proposed) would be used to plant trees
somewhere in the County. Renewing Montgomery's formula for trees on-site and in-lieu fees is
shown on ©149, and site-specific examples are shown on ©150-153.
Renewing Montgomery representatives and DEP staff met and maintained a dialogue
about the RM proposal. This dialogue is shown in the messages and letters on © 155-160. In its
notes of a June 27 meeting (see ©160), DEP staff conceded that RM's option could be a
"potentially workable alternative" if the required number of trees to be planted on a specific­
sized lot were increased to account for the mortality rates of newly-planted trees. At the July 8
worksession, DEP presented 2 options that in their view were adequate alternatives to RM's
option (see ©161-163). The Committee recommended DEP option 2, which would require 3
times the number of shade trees planted than under the RM option.
Committee redraft
At its fifth worksession on this Bill on July 8, the Transportation, Infrastructure, Energy, and
Environment (T&E) Committee recommended enactment of a comprehensive redraft. The
Committee redraft is shown on ©1-29.
(The text from
©2,
line
2
to ©18, line
449,
that is double­
bracketed and italicized, was deleted in the Committee redraft.)
This redraft, which incorporates DEP option 2 (discussed above), would:
• apply to any person required to obtain a sediment control permit, with no minimum or .
maximum lot size;
• exempt activity that is subject to Article II of the Forest Conservation law. Article II is
the part of the FCL that requires mitigation in a long-term forest conservation plan; it
does not apply to many residential single-family lots larger or smaller than 40,000
square feet;
give each applicant for a sediment control permit the option to plant the required number
of shade trees on site or pay an in-lieu fee into a tree canopy fund;
the amount of the in-lieu fee would be based on DPS' current bonding requirement for
trees in the right-of-way;
require 400 square feet of open space per shade tree planted onsite, or a smaller amount
set by Council-approved regulation;
direct DEP to maintain a comprehensive County-wide shade tree planting plan;
direct DEP to collect data on shade trees planted;
direct DEP, after consulting with various government, civic, and other organization, to
develop recommendations regarding tree canopy goals and a strategy to increase the
number oftrees planted;
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• establish a Tree Canopy Conservation Account and require funds deposited into that
account to be used only to plant and maintain shade trees and not be used to hire
additional staff or supplant funds otherwise appropriated to plant and maintain shade
trees and enhance tree canopy; and
• exempt ("grandfather") any project if DPS accepted a sediment control permit
application before March 1,2014.
Issues/Committee Recommendations
1) How much mitigation should be required?
As noted above, as an alternative to Bill
35-12, Renewing Montgomery would allow, at the ownerlbuilder's option, the applicant to
commit to plant a certain number of trees onsite, regardless of whether any trees were previously
there or were removed. The applicant would have the option to pay a set in-lieu fee, somewhat
lower than DEP proposed, that would be based on the cost to plant a replacement tree. In
response, DEP offered 2 options for the Committee's consideration. DEP option 1 would double
the number of shade and ornamental trees from the RM proposal; DEP option 2 would triple the
number of shade trees required, and eliminate the ornamental tree requirement. In DEP's view,
triple the number of shade trees is appropriate because it takes into account tree mortality factors.
Builder representatives dispute DEP's tree mortality estimates. The chart on ©163 compares the
plantings required under each option. Committee recommendation: DEP option 2. The tree
planting (or in-lieu payment) that would be required under this option for different areas of limit
of disturbance is:
Area (sq. ft.) of the Limits
of Disturbance
From
To
1
6,001
8,001
12,001
14,001
6,000
8,000
12,000
14,000
40,000
Number of
Shade Trees
Required
3
6
9
12
15
2) How much space should be required for each tree planted?
As DEP advised, the
Committee redraft would require that 400 square feet be available per tree for planting purposes,
or a smaller amount set by Method 1 (Council-approved) regulation (see ©23, lines 572-576).
BIA and other builders argued that a smaller square footage per tree would be adequate.
Committee recommendation: require 400 square feet per tree, unless the Council approves
a smaller amount by regulation.
The
County Planning Board and many environmental organizations expressed concern that Bill 35-12
would cover the Parks Department in its requirements. As Board Chair Carrier noted in a letter
to the Council, many park capital projects involve work under tree canopy and the Department
strives to avoid, minimize, and mitigate the negative effects of park projects on native tree
canopy. At the February 25 worksession, Executive staff noted that although they were willing
4
3) Should the Parks Department be subject to a tree planting requirement?
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to amend Bill 35-12 to assure that the fee the Parks Department pays would be directed back to
the Parks system, they concluded that the Parks Department should not be exempt entirely from
the bill. The Committee disagreed. Committee recommendation: exempt the County Parks
Department from this tree planting requirement.
4) What other exemptions
(if
any) should be allowed?
Several organizations or
individuals requested exemptions from the Bill's original fee requirement:
• As drafted, Bill 35-12 would exempt any tree nursery activity performed with an
approved Soil Conservation and Water Quality Plan. The Soil Conservation District and
the Agricultural Advisory Committee would broaden this exemption to include any
agricultural or conservation activity performed with an approved Soil Conservation and
Water Quality Plan. Because agricultural activities are normally not required to apply for
a sediment control permit, Council staff concurs with Executive branch staff that this
exemption would be unnecessary.
• Bill 35-12 would exempt any non-coal surface mining conducted in accordance with
applicable state law. Tri-State Stone and Building Supply would amend the law to
specifically exclude quarry operations. Council staff sees no reason to do so; the same
requirements should apply to a development in a quarry as elsewhere.
Committee recommendation: do not adopt either amendment.
• Pepco asked for an amendment, similar to language in the redraft of Bill 41-12, to clarify
that utility vegetation management activities are not subject to this Bill. While Council
staff concurs with Executive branch staff that those activities likely would not be covered
by this Bill because, among other reasons, those activities don't require a sediment
Committee
control permit, the Committee decided to make this point clear.
recommendation: insert language similar to language in Bill 41-12 (see ©22, lines
535-539).
• BIA requested that Bill 35-12 exempt lots covered by the Forest Conservation Law
(FCL) in order to "avoid double indemnity" and promote tree conservation. BIA argued
that a property owner may have a disincentive to planting trees on potential lots because
they would not be given any credit for those trees and the later lot owner would still be
required to plant trees on their lot in spite of the compliance with the FCL. Committee
recommendation: exempt any activity that is subject to Article II of the Forest
Conservation Law. Article
II
is the part of the FCL that requires mitigation in a long-term
forest conservation plan; it does not apply to many residential single-family lots.
5) Should Bill
35-12
set canopy goals?
Many organizations, including Conservation
Montgomery and West Montgomery County Citizens Association, urged that Bill 35-12 be
amended to include specific tree canopy goals. Some individuals suggested establishing a no-net
loss tree canopy goal; other organizations suggested setting a countywide goal of 55%, with a
minimum goal of 40% in all areas evaluated in a county tree canopy assessment. The Bill does
neither. Committee recommendation: direct DEP, after consulting with various government,
civic, and other organization, to develop recommendations regarding tree canopy goals and a
strategy to increase the number of trees planted.
6) Should the uses of the Tree Conservation Fund be restricted?
Environmental and
builder representatives raised concerns about the Tree Conservation Fund. Conservation
Montgomery and Ashton Manor Environmental urged that the Bill be amended to assure that the
5
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fund is not used for salaries and other administrative expenses. Committee recommendation
(3-0): add language to specify that money deposited into the Fund can't be used to fund
additional County staff or supplant existing programs.
7) Which
if
any projects should be grandfathered?
Both attorney Timothy Dugan and
Larry Cafritz requested that Bill 35-12 grandfather existing projects. The Bill did not
specifically provide when it would take effect or how it would apply to projects that filed
applications for sediment control permits or forest conservation law approvals before the Bill
takes effect. Committee recommendation: exempt ("grandfather") projects in which a
sediment control permit application was accepted by Permitting Services before March 1,
2014.
Councilmember Floreen amendment
Councilmember Floreen expects to offer an amendment to the Committee redraft to
replace DEP Option 2, the Committee recommendation, with DEP Option 1. (See Floreen
amendment, ©166, highlighted in gray.) The difference between those options is that Option 1
would require each applicant to plant 2 rather than 3 shade trees on the basic «6000sf) lot, with
that ratio maintained on larger lots, and also to plant 2 ornamental trees on the basic lot (also
with the ratio maintained on larger lots), Under Option 2, no ornamental trees were required.
This packet contains:
Circle
#
1
Bill 35-12 with Committee amendments
Legislative Request Report
30
Memo from County Executive
31
Fiscal and Economic Impact Statement
33
Executive staff presentation
40
74
County Attorney opinion
Revised Executive staff presentation with proposed fee levels
79
USDA Forest Service Study on urban tree canopy
93
Summaries of selected tree laws in other jurisdictions
103
DEP outline of potential credit program
116
DEP comparisons with other jurisdictions
119
DEP Powerpoint presentation on fee calculation process
132
Renewing Montgomery proposal
147
BIA email endorsing Renewing Montgomery proposal
154
DEP and Renewing Montgomery dialogue
155
DEP response to RM alternative
161
Trees Matter Coalition letter
164
Councilmember Floreen amendment (DEP option 1)
166
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Bill No.
35-12
Concerning: Trees - Tree Canopy
Conservation
Draft No. 3
Revised:
7/18/13
Introduced:
November 27,2012
Expires:
May 27,2014
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _--:-_ _ _ _ _ _ __
Sunset Date: --=..::.No=n-=.::e'----::--_ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President at the Request of the County Executive
AN
ACT to:
save, maintain, and establish tree canopy for the benefit of County residents and
future generations;
(2)
[[maximize tree canopy retention and establishment;
(3)
establish procedures, standards, and requirements to minimize the loss and
disturbance of tree canopy as a result of development;
(4)]] provide for mitigation [[when tree canopy is lost or disturbed]] to
offse~
environmental impacts
ofdevel~:>pment
and address the loss of environmental
resources. including trees and potential growing space for shade trees;
[[(5)]]
establish [[a fund]] an account for shade tree [[canopy conservation]] planting
projects, including plantings of individual trees[l,]] or groups of trees[[, or forests,]]
on private and public property; and
[[(6)]]
ill
generally revise County law regarding tree canopy conservation.
(1)
ru
By adding
Montgomery County Code
Chapter 55, Tree Canopy
Sections 55-1, 55-2, 55-3, 55-4, 55-5, 55-6, 55-7, 55-8, 55-9, 55-10, and 55-11.
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
... ... *
Heading or defined term.
Added to existing law by original bin.
Deleted/rom existing law by original bilL
Added by amendment.
Deleted/rom 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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BILL
No. 35-12
1
2
3
Sec.
1.
Chapter 55 is added as fonows:
[[Article
1.
Purpose and General Provisions.
55-1.
Short title.
4
5
This Chapter may be cited as the Montgomery County Tree Canopy
Conservation Law.
55-2.
Findings and purpose.
6
7
{gl
Findings. The Countv Council finds that trees and tree canopy
constitute important natural resources. Trees filter groundwater,
reduce surface runoft help alleviate flooding, and supply necessary
habitat for wildlife. They cleanse the air, offset the heat island effects
gf urban development, and reduce energy needs.
8
9
10
11
12
13
14
'l1l!D!..
improve the
quality gf life in communities
fu!..
providing for recreation,
compatibility between different land uses, and aesthetic appeal. The
Councilfinds that tree and tree canopy loss as
f!.
result gfdevelopment
and other land disturbing activities is
f!.
serious problem in the
County.
15
16
17
ill
Purpose. The purposes gfthis Chapter are to:
18
19
20
ill
save. maintain, and establish tree canopy for the benefit gf
County residents andfitture generations;
m
ill
maximize tree canopy retention and establishment;
establish procedures, standards, and requirements to minimize
the loss and disturbance gf tree canopy as
f!.
result gf
development;
21
22
23
24
ill
provide for mitigation when tree canopy is lost or disturbed;
and
25
o
t::\
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Tree Canopy Conservation Program\BiII 3.Docx
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BILL
No.
35-12
26
27
28
ill
establish
fI
fund for tree canopy conservation projects,
including plantings Q[ individual trees, groups Q[ trees, or
forests, on private and public property.
29
30
55-3.
Definitions.
In this Chapter, thefollowing terms have the meanings indicated:
31
32
33
Critical Root Zone
means the minimum area beneath
fl
tree. The critical
root zone is typically represented
f2J!.
fl
concentric circle centering on the tree
trunk with
fl
radius equal in feet to
1.5
times the number Q[ inches Q[ the
trunk diameter.
34
35
36
Development plan
means flplan or an amendment to
fl
plan approved under
Division 59-D-1 Q[Chapter 59.
37
38
39
Director
!.!l
Environmental Protection
means the Director Q[ the
Department Q[Environmental Protection or the Director's designee.
Director
!.!l
Permitting Services
means the Director Q[ the Department Q[
40
41
42
Permitting Services or the Director's designee.
Forest conservation plan
means g plan approved under Chapter 22A.
Forest stand delineation
means the collection and presentation Q[ data on
the existing vegetation on
fl
site proposedfor development or land disturbing
activities.
43
44
45
46
47
48
Land disturbing activity
means any earth movement or land change which
may result in soil erosion .from water or wind or the movement Q[ sediment
into County waters or onto County lands. including tilling, clearing, grading,
excavating. stripping. stockpiling, filling, and related activities, and covering
land with an impermeable material.
49
50
51
Limits
!.!l
disturbance
means
fl
clearly designated area in which land
disturbance is planned to occur.
(J)
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BILL
No. 35-12
52
53
54
Limits
Q[
tree canopy disturbance
means all areas within the limits gf
disturbance where tree canopy or (orest exists.
Lot
means
f!
tract gfland, the boundaries gfwhich have been established
f2J!.
subdivision gf
f!
larger parcel, and which will not be the subject gffurther
subdivision, as defined
f2J!.
Section 50-1, without an approved forest stand
delineation andforest conservation plan.
Mandatory referral
means the required review
f2J!.
the Planning Board gf
projects or activities to be undertaken
f2J!.
government agencies or private
and public utilities under Section 20-302 gf the Land Use Article gf the
Maryland Code.
Natural resources inventory
means
f!
collection and presentation gfdata on
the existing natural and environmental information on
f!
site and the
surrounding area proposed.for development and land disturbing activities.
Person
means:
{gl
55
56
57
58
59
60
61
62
63
64
65
66
67
To the extent allowed
f2J!.
law, any agency or instrument gf the federal
government, the state, any county, municipality, or other political
subdivision gfthe state, or any gftheir units;
68
69
!l!l
tfl
An individual, receiver, trustee, guardian, executor, administrator,
fiduciary, or representative gfany kind;
Any partnership, firm, common ownership community or other
homeowners' association, public or private corporation, or any gf
their affiliates or subsidiaries; or
Any other entity.
70
71
72
73
74
75
@
Planning Board
means the Montgomery County Planning Board gf the
Maryland-National Capital Park and Planning Commission, or the
Planning Board's designee.
76
77
e
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BILL No. 35-12
78
79
Planning Director
means the Director gfthe Montgomery County Planning
Department or the Director's designee.
80
Preliminarv plan
Q[
subdivision
means g plan for g proposed subdivision or
resubdivision prepared and submitted for approval
81
82
f2J?
the Planning Board
under Chapter 50 before preparation gfg subdivision plat.
83
84
Project plan
means g plan or an amendment to g plan approved under
Division 59-D-2 gfChapter 59.
85
86
87
88
Public utility
means any water company, sewage disposal company, electric
company, gas company, telephone company, or cable service provider.
Oualified professional
means g licensed forester. licensed landscape
architect, or other qualified professional who meets all gf the requirements
under Section 08.19.06.01 A gf the Code gf Maryland Regulations or any
successor regulation.
89 .
90
91
Retention
means the deliberate holding and protecting gf existing trees and
forests on the site.
92
93
Sediment control permit
means g permit required to be obtained {or certain
land disturbing activities under Chapter 19.
94
95
Site
means any tract, lot, or parcel gf land, or combination gftracts, lots, or
parcels gf land, under g single ownership, or contiguous and under diverse
ownership, where development is performed as part gfg unit, subdivision, or
project.
96
97
98
99
Site plan
means g plan or an amendment to g plan approved under Division
59-D-3 gfChapter 59.
100
101
Special exception
means g use approved under Article 59-G gfChapter 59.
102
103
Sub
watershed means the total drainage area contributing runoff to g single
point, and generally refers to the 8-digit hydrologic unit codes.
@
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BILL
No.
35-12
104
105
106
107
108
109
110
111
112
113
114
115
116
117
Technical Manual
means
g
detailed guidance document adopted under
Section
55-13
and used to administer this Chapter.
Tree
means
g
large. woody plant having one or several self-supporting
stems or trunks and numerous branches that can grow to
g
height
gf
at least
20 feet at maturity.
Tree
includes the critical root zone.
Tree canopy
means the area
gf
one or many crowns
gf
the trees on
g
site
including trees inforested areas.
Tree Canopy Conservation Fund
means
g
special fund maintained
12Y.
the
County to be used as specified in Section 55-14.
Tree canopy cover
means the combined area
gf
the crowns
gf
all trees on the
site. including trees in forested areas.
Tree canopy cover layer
means the Geographic Information System (GIS)
layer. or shape file, that contains polygons outlining the aerial extent
gf
tree
canopy in the County or any portion
gf
the County.
55-4.
Applicability.
118
119
120
Except as otherwise provided under Section
55-5,
this Chapter applies to any
person required
12Y.
law to obtain
g
sediment control permit.
55-5.
Exemptions.
121
122
123
This Chapter does not apply to:
(gl
any tree nursery activity performed with an approved Soil Conservation
and Water Quality Plan as defined in Section 19-48;
124
125
f1ll
any commercial logging or timber harvesting operation with an
approved exemption from the requirements under Article II
gf
Chapter
22A;
126
127
128
f2l
cutting or clearing trees in
g
public utility right-or-wav for the
construction or modification
gf
electric generation focillties approved
under the Maryland Code Public Utilities Article
fi;..
129
130
(§)
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BILL
No. 35-12
131
132
133
134
135
136
137
138
139
ill
the person cutting or clearing the trees has obtained g certificate
gfpublic convenience and necessity required under Sections 7­
207 and 7-208 gfthe Public Utilities Article; and
m
@
the cutting or clearing gfforest or tree canopy is conducted so as
to minimize the loss gfboth;
routine maintenance or emergency repairs gf any facility located in
public utility rights-of-way;
&l
routine or emergency maintenance gf an existing stormwater
management facility, including an existing access road.
if
the person
work has
140
141
142
143
144
performing the maintenance has obtained all required permits;
ffl
(gl
any stream restoration project
obtained all necessary permits;
if
the person performing the
the cutting or clearing any tree
fu!.
an existing airport currently
operating with all applicable permits to comply with applicable
provisions gfanyfederallaw or regulation governing the obstruction gf
navigable airspace
145
146
147
148
if
the Federal Aviation Administration has
determined that the trees create g hazard to aviation;
fJJl
cutting or clearing any tree to comply with applicable provisions gfany
federal. state, or local law governing the safety gfdams; or
any non-coal surface mining conducted in accordance with applicable
state law.
----
Article
2.
Tree Canopy Conservation Requirements. Procedures. and Approvals.
55-6.
Tree Canopy
149
150
151
152
153
154
155
156
=
General.
{gl
Submissions. A person that is subject to this Chapter must submit to
either the Director gfPermitting Services or the Planning Director the
following infOrmation on the amount gfdisturbance gftree canopy.
(j)
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BILL
No.
35-12
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
ill
Any person required
f2J!.
law to obtain
f!.
sediment control permit
for land disturbing activity that is not subject to Chapter 22A
must submit
f!.
limits
Q[
tree canopy disturbance concurrently with
the sediment control permit application to the Director
Q[
Permitting Services under Section 55-7.
m
Any person engaging in activity that is subject to Chapter 22A
must submit
f!.
limits
Q[
tree canopy disturbance concurrently with
any other plan required under Chapter 22A to the Planning
Director under Section 55-8.
@
Timing
Q[
submissions.
The person must submit the limits
Q[
tree
canopy disturbance for review in conjunction with the review process
for
f!.
sediment control permit, forest conservation plan. development
plan. project plan, preliminary plan
Q[
subdivision, site plan, special
exception. or mandatory referral.
!f
f!.
natural resources inventory/forest
stand delineation is required, the person must include the aerial extent
Q[
the tree canopy with the natural resources inventory/forest stand
delineation as specified in Section 22A-10.
{fl
Incomplete submissions.
The Director
Q[
Permitting Services or the
175
176
177
178
179
Planning Director must not approve an incomplete submission.
@l
Review
Q[
submissions. Each submission required under this Chapter
must be reviewed concurrently with the review
Q[
any submission
required under Article
I
Q[
Chapter
19
or Chapter 22A.
{§l
Coordination
Q[
review. The Director
Q[
Permitting Services and the
Planning Director may coordinate the review
Q[
any information
submitted under subsection
{gl
with other agencies as appropriate. The
reviews may be performed concurrentlv, and in accordance with, any
review coordination required under Chapter
19
or Chapter 22A.
180
181
182
183
@
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BILL
No. 35-12
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185
186
187
188
189
190
191
192
193
194
195
Ul
Time frame gf validity. An approved limits gf tree canopy disturbance
submission remains validfOr:
ill
not more than
J
years unless the Planning Director has approved
either
f!
final forest conservation plan or preliminary fOrest
conservation plan that includes the limits gf tree canopy
disturbance;
m
m
{gl
not more than
2.
years unless
f!
sediment control permit has been
issued !!l!. the Director gfPermitting Services and remains valid:
or
J.
years
jf
the accuracy gf the limits gf tree canopy disturbance
has been verified!!l!.
f!
qualified protessional.
The Director gf Permitting
Issuance gf sediment control permit.
196
197
198
199
Services must not issue
f!
sediment control permit to
f!
person that is
required to comply with this Article until:
ill
the Planning Board or Planning Director, as appropriate, or the
Director gf Permitting Services has approved an applicant's
limits gfdisturbance; and
200
201
202
203
204
205
m
(gl
the applicant
l2fJJ!§..
f!!JJ!.fee required under this Article.
55-7.
Tree Canopy
=
Submissions to the Director
gf
Permitting Services.
General. The limits gftree canopy disturbance information submitted to
the Director gf Permitting Services must document the extent gf the
existing area gf tree canopy and the total area gf tree canopy to be
disturbed!!l!. the proposed activity.
206
207
208
@
Incorporation gf limits gf tree canopy disturbance. The limits gf tree
canopy disturbance information for the subject property must be
incorporated in
f!
sediment control permit or the site plan submitted.for
f!
building permit.
209
210
G)
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BILL
No.
35-12
211
{fl
The limits gf tree canopy disturbance. The limits gf tree canopy
disturbance information fOr the subject site must include:
212
213
ill
g
map delineating:
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
ill
(Jll
the property boundaries;
the proposed limits gf disturbance including any off-site
areas;
fJd
the aerial extent gf existing tree canopy cover on the
subject site,
YJ2.
to
45
feet beyond the proposed limits gf
disturbance;
(D)
the intersection gf aerial extent gf existing tree canopy
cover and the limits gfdisturbance; and
(E)
any additional information specified
12Y-
regulation; and
ill
g
table summarizing the square footage
ill
(Jll
the property;
the limits gfdisturbance gfthe proposed activity;
the aerial extent gfexisting tree canopy cover;
the limits gftree canopy disturbance; and
any additional infOrmation specified
12Y-
regulation.
The Director gf
fJd
(D)
(E)
@
Modification to limits gf tree canopy disturbance.
gftree canopy disturbance
it
Permitting Services may approve
f!.
modification to an approved limits
ill
the modification is consistent with this Chapter, field inspections
or other evaluations reveal minor inadequacies gf the plan, and
modifYing the plan to remedy the inadequacies will not increase
the amount gf tree canopy removed as shown on the final
approved plan; or
ill
the action is otherwise required in an emergency.
@
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BILL No. 35-12
238
239
240
241
242
243
244
245
246
{g.l
Qualification qfpreparer.
Iff!
tree canopy cover layer developed
f2:¥.
the
County is available and is used without alteration,
f!
professional
engineer, land surveyor, architect, or other person qualified to prepare
erosion and sediment control plans under Chapter
19
is also qualified
to prepare the limits qftree canopy disturbance information under this
Section. Otherwise, the limits qf tree canopy disturbance information
must be prepared
f2:¥.
f!
qualified professional as defined in Section
08.19.06.01 qf the Code qf Maryland Regulations or any successor
regulation.
247
248
249
250
251
252
253
254
55-8.
Tree Canopy
=
Submission to the Planning Director.
{gl
General. The limits qf tree canopy disturbance information submitted
to the Planning Director must document the extent qf existing tree
canopy and the total area qf tree canopy to be disturbed
f2:¥.
the
proposed activity. The Planning Director
!.!1fD!.
use the information to
identify the most suitable and practical areas .for tree conservation and
mitigation.
fJ2l
Limits qf tree canopy disturbance.
A person that is subject to this
255
256
257
258
Section must submit the same limits qf tree canopy disturbance
information as required under Section 55-7.
f.fl
Incorporation qf the limits
gf
tree canopy. the natural resources
inventory/forest stand delineation, and forest conservation plan.
If
an
259
260
261
262
263
applicant is required to submit
fl.
natural resources inventory/forest
stand delineation, the extent qf tree canopy must be incorporated into
that submission .for the same area included in the natural resources
inventory/forest stand delineation.
If
an applicant is required to submit
f!
forest conservation plan. both the extent qftree canopy and the limits
{}i\
CY
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BILL
No. 35-12
264
265
9i tree canopy disturbance must be incorporated into that submission
[Or the same area included in the forest conservation plan.
@
266
267
268
269
270
271
272
273
274
275
276
277
278
Modification to limits 9i tree canopy disturbance.
canopy disturbance that is consistent with this Chapter
it
The Planning
Director may approve g modification to an approved limits 9i tree
ill
field inspection or other evaluation reveals minor inadequacies
9ithe plan, and modifYing the plan to remedy those inadequacies
will not increase the amount 9itree canopy removed as shown on
the final approved plan; or
f1l
{§l
the action is required because 9ian emergency.
Submission [Or special exception.
If
g special exception application
is
subject to this Chapter, the applicant must submit to the Planning Board
any in[Ormation necessary to satisfY the requirements 9i this Chapter
be[Ore the Board 9i Appeals considers the application [Or the special
exception.
55-9.
Tree Canopy
279
280
281
282
283
284
=
Fee to Mitigate Disturbance.
The primary objective 9i this Section is the retention 9i
(gl
Objectives.
existing trees. Every reasonable effort should be made to minimize the
cutting or clearing 9i trees and other woody plants during the
development 9i g subdivision plan, grading and sediment control
activities, and implementation 9ithelOrest conservation plan.
@
285
286
287
288
289
290
Fees paid [Or mitigation. Mitigation required to compensate [Or the loss
9i..
or disturbance
!s6
tree canopy must take the form 9ifees set
l2J!.
regulation under Method
i.
which the applicant
Il!JY.§..
to the Tree
Canopy Conservation Fund. Mitigation fees are based on the square
fOotage 9itree canopy disturbed and, therefore, increase as the amount
9i tree canopy disturbance increases.
To provide credit for on-site
w
®
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BILL
No.
35-12
291
292
293
294
295
296
297
298
299
300
landscaping. mitigation fees must not be applied to thefirst Jpercent
gf
the area
gf
tree canopy disturbed. Canopy identified as part
gf
any
fOrest delineated in an approved natural resources inventory/torest
stand delineation and subject to a torest conservation plan is not subject
to mitigation fees under this Chapter.
Article
3.
Enforcement and Appeals.
55-10. Inspections and notification.
{gl
Permission to gain access. The Director
gf
Permitting Services or the
Planning Director may enter any property subject to this Chapter to
inspect. review. and entorce.
301
302
ill
Plan to be on site; field markings. A
fQJ2J!..
gf
the approved limits
gf
tree canopy disturbance must be available on the site for inspection
f2J!..
the Director
gf
Permitting Services or the Planning Director.
303
304
305
306
307
Field markings must exist on site betore and during installation
gf
all
tree protection measures. sediment and erosion control measures,
construction. or other land disturbing activities.
f£l
Inspections.
308
309
310
311
ill
The Director
gf
Permitting Services must conduct field
inspections concurrently with inspections required fOr
f!:.
sediment control permit under Article
I
gf
Chapter
19
fOr any
activity subject to Section 55-7.
312
313
m
m
The Planning Director must conduct field inspections
concurrently with inspections requiredfOr a forest conservation
planfor any activity subject to Section 55-8.
The Director
gf
Permitting Services or the Planning Director
may authorize additional inspections or meetings as necessary
to administer this Chapter.
314
315
316
317
@
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BILL No. 35-12
318
f.s!l
Timing
gf
inspections. The inspections required under this Section
must occur:
319
320
321
322
323
324
325
326
327
ill
after the limits
gf
disturbance have been staked and flagged, but
before any clearing or grading begins;
m
m
(gl
after necessary stress reduction measures for trees and roots
have been completed and the protection measures have been
installed, but betore any clearing or grading begins; and
after all construction activities are completed, to determine the
level
gf
compliance with the limits
gf
tree canopy disturbance.
Scheduling requirements. A person must request an inspection by:
328
329
330
331
332
333
334
ill
the Director
gf
Permitting Services within the time required to
schedule an inspection under Section
19-12;
or
m
{fl
the Planning Director within the time required to schedule an
inspection under Section 22A-15.
Coordination. The Department
gf
Permitting Services and the
Planning Department must coordinate their inspections to avoid
inconsistent activities relating to the limits
gf
tree canopy disturbance.
335
336
337
55-11.
Penalties and enforcement.
{gl
Enforcement authority. The Department
gf
Permitting Services has
entorcement authority for any activity approved under Section
and the Planning Board has enforcement authority .for any activity
approved under Section 55-8.
338
339
340
f12l
Enforcement action.
The Director
gf
Permitting Services or the
341
342
343
Planning Director may issue
g
notice
gf
violation, corrective order.
stop-work order, or civil citation to any person that causes or allows
g
violation
gf
this Chapter.
V
/i4l
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BILL No. 35-12
344
345
346
f.fl
Civil penalty. The maximum civil penalty for any violation
gf
this
Chapter or any regulation adopted under this Chapter is $1.000.
Each day that
f!
violation continues is
f!
separate offense.
347
348
349
@
Other remedy.
In
addition to any other penalty under this Section, the
Planning Board may seek any appropriate relief authorized under
Section 22A-16.
350
351
352
353
354
355
356
357
55-12.
Administrative enforcement.
{gl
Administrative order.
In
addition to any other remedy allowed
fu!.
law, the Planning Director may at any time, including during the
pendency
gf
an enfOrcement action under Section
55-11,
issue an
administrative order requiring the violator to take one or more
gf
the
following actions within the time specified
fu!.
the Planning Director:
ill
stop the violation;
stabilize the site to comply with f!forest conservation plan;
stop all work at the site;
restore or reforest unlawfully cleared areas;
submit
f!
limits
gf
tree canopy disturbance, .forest conservation
plan, or tree save plan.for the net tract area;
m
ill
ill
ill
{Ql
358
359
360
361
362
363
364
365
366
place fOrested land. retorested land, or land with individual
significant trees under long-term protection
fu!.
f!
conservation
easement, deed restriction, covenant. or other appropriate legal
instrument; or
m
ill
submit
f!
written report or plan concerning the violation.
367
368
369
Effectiveness
gf
order. An order issued under this Section is effective
when it is served on the violator.
Article
4.
Administration
370
55-13.
General.
fi0
~
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BILL
No. 35-12
371
{gl
Regulations. The County Executive must adopt regulations. including
.
technical manuals. to administer this Chapter. under Method
372
373
374
The
regulations must include procedures to amend
f!
limits gftree canopy
disturbance.
@
375
376
Technical manual. The technical manual must include guidance and
methodologies/or:
377
378
379
380
381
382
383
ill
preparing and evaluating maps gf the aerial extent gf the tree
canopy and the limits gftree canopy disturbance;
ill
providing protective measures during and after clearing or
construction. including root pruning techniques and guidance
on removing trees that are or may become hazardous;
m
ill
(fl
monitoring and en(orcing the limits gf disturbance and the
limits gftree canopy disturbance; and
other
appropriate guidance
(or program
requirements
384
385
386
387
388
consistent with this Chapter and applicable regulations.
Administrative fee. The Planning Board and the County Executive
may each.
lD!..
Method
J
regulation. establish
g
schedule gffees to
administer this Chapter.
@
389
390
391
392
393
394
395
396
Reports. On or be(ore March
1
gf each year. the Department gf
Permitting Services, the Planning Board, and the Department gf
Environmental Protection each must submit an annual report on the
County tree conservation program to the County Council and County
Executive.
&l
Comprehensive plan/or mitigation. The Department gfEnvironmental
Protection must develop and maintain
f!
comprehensive County-wide
plan to mitigate disturbance to tree canopy. The Department gf
Environmental Protection should develop the plan in consultation
397
J'l6\
V
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BILL
No. 35-12
398
399
with the Planning Department, the Department
g[
Transportation, the
Department
g[
General Services. the Department
g[
Economic
Development, the Soil Conservation District, and other agencies as
appropriate.
400
401
402
403
404
405
406
407
408
409
410
411
fJl
Sediment control permit application. To prevent circumvention
g[
this
Chapter, the Planning Director and the Director
g[
Permitting
Services may require
f!
person to submit an application for
f!
sediment
control permit enforceable under this Chapter
jf
that person:
ill
limits the removal
g[
tree canopy or limits land disturbing or
construction activities to below requirements for
f!
sediment
control permit,' and
m
later disturbs additional tree canopy or land on the same
property, or
fu!.
any other means, such that in total,
f!
sediment
control permit would be required.
412
413
414
415
416
55-14.
Tree Canopy Conservation Fund.
{gl
General. There is
f!
County Tree Canopy Conservation Fund. The
Fund must be used in accordance with the adopted County budget and
as provided in this Section.
fJ2l
Mitigation fees paid into the Tree Canopy Conservation Fund. Money
deposited in the Tree Canopy Conservation Fund to fulfill mitigation
~equirements
417
418
419
420
421
422
423
424
must be spent on establishing and enhancing tree
canopy, including costs directly related to site identification,
acquisition, preparation, and other activities that increase tree
canopy, and must not revert to the General Fund. The Fund may also
be spent on permanent conservation
g[
priority forests, including
identification and acquisition
g[
f!
site within the same subwatershed
where the disturbance occurs.
~
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BILL No. 35-12
425
426
f.fl
Fines paid into the Tree Canopy Conservation Fund.
Any fines
collected for noncompliance with
fl.
limits gf tree canopy disturbance
or.forest conservation plan related to tree canopy disturbance must be
deposited in
fl.
separate account in the Tree Canopy Conservation
Fund. The Fund may be used to administer this Chapter.
@
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
448
449
Use gfthe Tree Canopy Conservation Fund.
ill
Anyfees collected for mitigation must be used to:
fAl
(B)
establish tree canopy;
enhance existing tree canopy through non-native invasive
and
native
invasive
species
management
control.
supplemental planting. or
fl.
combination gfboth;
{Q.
(D)
establish.forest; and
acquire protective easements .for existing.forests or areas
with existing tree canopy that are not currently protected,
including .forest mitigation banks approved under Section
22A-13.
m
The canopy established under paragraph (i)(A) should shade
impervious surfaces. manage stormwater runoft and generally
increase tree canopy coverage. Trees native to the Piedmont area
gf the County should be used, iffeasible. to meet the mitigation
requirements gfthis Chapter.
m
The establishment gf tree canopy to satisfY the mitigation
requirements gf
f!.
project must occur in the subwatershed where
the project is located. Otherwise the tree canopy may be
established anywhere in the County.!]
~
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BILL
No.
35-12
450
451
452
453
454
455
456
457
458
459
460
461
462
463
464
465
466
467
468
469
470
471
472
473
474
475
Article 1. Purpose and General Provisions.
55-1. Short title.
This Chapter may be cited as the Montgomery County Tree Canopy Law.
55-2. Findings and purpose.
W
Findings.
The County Council finds that it is in the public interest to
offset the environmental impacts of development and address the loss
of environmental resources. including trees and potential growing
space for shade trees. and conserve tree canopy throughout the
County. Trees and tree canopy constitute important environmental
resources. Trees cleanse the air. offset the heat island effects of urban
development. reduce energy needs. and provide oxygen.
They
improve the quality of life in communities by providing for a greater
sense of well-being and increasing esthetic appeal and compatibility
between different land uses. Trees filter groundwater. reduce surface
runoff and soil erosion. help alleviate flooding. and supply necessary
habitat for a diversity of wildlife. The Council finds that the damage
to or loss of environmental resources as a result of development and
other land disturbing activities is a serious problem in the County. and
that establishing shade trees and tree canopy helps mitigate· these
losses and increase the diversity of species and age classes of trees.
The Council finds that. given the expected survival rate of newly
planted shade trees. at least 3 new shade trees should be planted to
produce the canopy coverage of one mature shade tree.
!Ql
Purpose.
The purposes of this Chapter are to:
ill
save. maintain. and establish tree canopy for the benefit of
County residents and future generations; and
@
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BILL
No.
35-12
476
477
478
479
480
481
482
483
484
485
486
487
ill
provide for mitigation when environmental resources. including
trees and potential growing space for shade trees. are lost or
disturbed as a result of development. by establishing:
(Al
shade
standards: and
tree planting requirements and
ml
a program to plant shade trees. including planting
individual trees or groups of trees. on private and public
property.
55-3. Definitions.
In this Chapter, the following termshave the meanings indicated:
Department
means the Department of Permitting Services.
Director
means the Director of the Department of Permitting Services or the
Director's designee.
488
489
Limits of disturbance
means a clearly designated area where land
disturbance is expected to occur.
490
491
Person
means:
492
493
494
495
496
497
498
499
500
501
W
to the extent allowed by law, any agency or iQ§trument of the federal
government. the state, any county, municipality, or other political
subdivision of the state, ora unit of any of them:
(!:U
an individuaL receiver, trustee, guardia])} executor, administrator,
fiduciary, or representative of any kind:
!£}
any partnership, firm, common ownership community or other
homeowners' association, public or private corporation, or a affiliate
or subsidiary of any of them: or
(ill
any other entity.
Public utility
means any water company, sewage disposal company, electric
company, gas company, telephone company. or cable service provider.
502
§)
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BILL
No. 35-12
503
504
505
506
507
508
509
510
511
512
513
514
515
516
517
518
519
520
521
522
523
524
525
526
527
528
529
Sediment control permit
means a permit required to be obtained for certain
land disturbing activities under Chapter 19.
Shade tree
means a tree of large stature that is capable of growing to heights
Site
means any tract. lot. or parcel of land. or 90mbination of tracts. lots. or
parcels of land, under a single ownership. or contiguous and under diverse
Subwatershed
means the total drainage area contributing runoff to a single
point, and generally refers to the 8-digit hydrologic unit codes.
Technical Manual
means a detailed guidance document that may be adopted
under Section 55-9 and used to administer this Chapter.
Tree canopy
means the area covered by the crown of one or more trees.
Tree Canopy Conservation Account
means a special account maintained by
the County lobe used as specified in Section 55-10.
55-4. Applicability.
Except as otherwise provided in Section 55-5. this Chapter applies to any
person required by law to obtain a sediment control permit.
55-5.
Exemptions.
This Chapter does not apply to:
W
(b)
any activity that is subject to Article II of Chapter
22A;
any commercial logging or timber harvesting operation with an
approved exemption from Article II of Chapter 22A:
W
(Q)
any tree nursery activity performed with an approved Soil Conseryation
and Water Quality Plan as defined in Section 19-48:
cutting or clearing trees in a public utility right-of-way for the
construction or modification of electric generation facilities approved
under the Maryland Code Public Utilities Article if:
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BILL
No. 35-12
530
531
532
533
534
535
536
537
538
539
540
541
542
543
544
545
546
547
548
549
550
551
552
553
554
555
556
ill
the person cutting or clearing the tI:(;!(;!S has obtained a certificate
of public cQnvenience and necessity required under Sections 7­
207 and 7-208Qfthe Public Utilities Article: and
ill
the cutting or clearing of forest or tree canopy is conducted so as
to minimize the loss of both:
W
routine maintenance of a public utility right-of-way, and cuttingor
clearing any tree by a public utility as necessary to comply with
applicable vegetation management requirements, to maintain, repair,
replace, or upgrade any public utility
tr~nsmission
or distribution line,
or for a new transmission or distribution line:
ill
W
any activity conducted by the County Department of Parks;
routine or emergency maintenanc(;!mm of an existing stormwater
management facility, including an existing access road, if the person
performing the maintenance has obtained all required permits;
(b)
any stream restoration project if the person performing the work has
obtained all necessary permits;
ill
cutting or clearing any tree by an existing airport currently operating
with all applicable permits to comply with applicable provisions of any
federal law or regulation governing the obstruction of navigable
airspace if the Federal Aviation Administration has determined that the
trees create a hazard to aviation:
ill
(k)
cutting or clearing any tree to comply with applicable provisions of any
federal. state, or local law governing the safety of dams;
any development activity permitted as a small land disturbing activity
under Section 19-5B; or
ill
any non-coal surface mining conducted in accordance with applicable
®
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BILL
No.
35-12
557
558
559
560
561
562
563
564
565
566
567
Article 2. Mitigation Requirements and Review.
55-6. Shade Tree Planting.
W
Alternatives.
An
applicant for a sediment control permit must plant
shade trees on the affected property or, if the applicant opts not to plant
the required number of trees. pay a fee under subsection Cd),
!QJ
Quantitv.
The number of shade trees required to be planted under this
Section must be based on the square footage of the area in the limits of
disturbance.
ill
Unless modified or superseded by applicable regulations adopted
under Method 1, the number of shade trees planted must comply
with the following schedule:
Area (sg. ft,} of the Limits
Qf Disturbance
From
To
NumberQf
Shade Trees
Reguired
~
1
6001
8.001
§.QQQ
!!.QQQ
12000
14.000
40.000
§
~
12
d1.QQ1
14.001
15
568
569
570
571
572
573
574
575
576
577
~
ill
If the area in the limits of disturbance exceeds 40,000 square
feet. the minimum number of shade trees required must be
prorated using the ratio of 15 trees per 40,000 square feet.
Planting.
Each planting of shade trees under this Section must conform
to the following requirements:
ill
Each shade tree must be allowed at least 400 square feet. unless
applicable regulations adopted under Method 1 specify a smaller
amount. of open surface area free of any impervious surface,
utility, stormwater management system, or other impediment to
root growth and development.
Q
t::...::J
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BILL
No. 35-12
578
579
580
581
582
583
584
585
586
587
588
589
590
591
592
593
594
595
596
597
598
599
600
601
602
603
604
ill
Shade trees may be planted anywhere on the subject propertY.
including outside the limits of disturbance if sufficient open
surface area is available entirely within the propertY boundaries.
Open surface area on an adjacent County right-of-way may be
included if no utility. public utility easement. or impervious
surface is located in that part of the right-of-way and the tree is
located on the affected propertY so that its stem will not grow into
the right-of-way.
@
Fees.
If the applicant concludes that any required shade tree cannot be
planted on the affected propertY because sufficient open surface area is
not available or for any other reason. the applicant must pay into the
Tree Canopy Conservation Account a fee for each required shade tree
that is not planted on the affected propertY. The fee must be equal to the
applicable rate the Department sets for bonding trees in the right-of­
55-7. Submissions.
W
Required submissions.
A person subject to this Chapter must submit to
the Director the following information with each applicatioll for a
a plan delineating:
th~-propertY
boundaries:
ill)
the proposed limits of disturbance. including any off-site
areas;
(Q
any shade tree planting locations and the required open
surface area for each planting location;
a table summarizing:
(Al
the square footage ofthe propertY;
e.:::.;
F:\LAw\BILLS\I235 Tree Canopy Conservation Program\BiIl3.Docx
l24\­
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BILL
No.
35-12
605
606
607
608
609
610
611
612
£ID
(Q
the square footage of the limits of disturbance of the
proposed activity;
the number of shade trees required under Section 55-6Cb),
the number of shade trees to be planted, and the amount of
fees to be paid under Section 55-6Cd); and
a;;u
ill
the open surface area surrounding each shade tree planting
location; and
any additional information specified by regulation.
A professional engineer, land surveyor,
613
614
615
616
617
618
619
620
621
622
623
624
625
626
627
628
629
630
tlil
Qualification of preparer.
architect. or other person qualified to certify an erosion and sediment
control plan under Chapter 19 is also
qualifi~gto
submit the information
required under this Chapter.
!£)
Incomplete submissions.
The Director must not accept an incomplete
(d)
Review of submissions.
Each submission required under this Chapter
must be reviewed along with any submission required under Article I of
Chapter 19.
~
Coordination ofreview.
The Director may coordinate the review of any
information submitted under subsection Ca) with one or more other
agencies as appropriate. If the Director cggrdinates the review with
other agencies, the reviews must
b~L
performed
concurrently and
III
accordance with any review coordination required under Chapter 19.
Ltl
Issuance of sediment control permit.
The Director l1:l11st not issue a
sediment control permit to a person that is subject to this Chapter until:
ill
1ll
the Director has approved the applicant's planting plan:
the applicant pays any fee required under this Article; and
CJ
F:\LAw\BILLS\1235 Tree Canopy Conservation Program\BiIl3.Docx
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BILL
No. 35-12
631
632
633
634
635
636
637
638
639
640
641
642
643
644
645
646
647
648
649
650
ill
(g)
the applicant has satisfied all applicable requirements under
Article I of Chapter 19.
Validity period.
An
approved shade tree planting plan remainsvalid for
the length of the associated sediment control permit.
au
Application requirement.
To prevent circumvention of this Chapter,
the Director may require a person to apply for a sediment control
permit if that person limits the removal of tree canopy or limits land
disturbing or construction activities below the requirements for a
sediment control permit and within the next 10 years disturbs
additional tree canopy or land on the same property, or conducts other
activities, such that in the aggregate a sediment control permit would
55-8. Inspections.
W
Permission to gain access.
The Director may enter any property
permitted under this Chapter to inspect the property and enforce this
Chapter while the permit is in effect.
(h)
Plan to be on site: field markings.
A copy of the approved limits of
disturbance, including shade tree species, planting locations and
minimum open surface areas, must be available on the site for
inspection by the Director. Field markings must exist on site before
and during installation of all newly planted shade trees, sediment and
erosion control measures. constructigg. or other land disturbing
651
652
653
654
655
656
!£l
Inspections.
The Director must conduct field inspections for any
activity subject to this Chapter along with any inspection required for
a sediment control permit under Article I of Chapter 19. The Director
§
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BILL
No. 35-12
657
658
659
660
661
662
663
664
665
666
667
668
669
670
671
672
673
674
675
676
677
678
679
680
681
682
may authorize additional inspections or meetings as necessary to
administer this Chapter.
@
Timing of inspections.
The inspections required under this Section
must occur after
all
construction activities are completed togetermine
thelevel of compliance with shade tree planting requirements.
Article 3. Administration.
55-9. General.
W
Regulations.
Except as otherwise provided. the County Executive
must adopt regulations. including a technical manual. to administer
this Chapter, under Method 2.
au
Technical manual.
The technical manual must include guidance and
methods to:
ill
identify, map, and evaluate the suitability of planting site
locations. including acceptable shapes of open surface areas and
the use of County rights-of-way;
ill
ill
ill
!£)
identify criteria for acceptable speCIes, SIzes. and health of
newly planted shade trees:
identify criteria for acceptable installation
techniqu~~;
and
otherwise comply with program requirements. consistent with
this Chapter and applicable regulations.
The County Executive may. by Method 2
Administrative fee.
regulation, adopt a schedule of fees to administer this Chapter.
@
Reports.
On or before March 1 of each year. the Directors of
Permitting Services and Environmental Protection must jointly submit
an annual report on the County shade tree planting program to the
County Council and County Executive.
§
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BILL
No.
35-12
683
684
685
686
687
688
689
690
691
692
693
694
695
696
697
698
699
700
701
~
Comprehensive planting plan.
The Director of Environmental
Protection must adopt and maintain a comprehensive County-wide
shade tree planting plan to specify appropriate uses for funds in the
Tree Canopy Conservation Account. The Director should develop the
plan after consulting other County agenCIes and the Planning
Department.
ill
Survival and mortality analysis.
The Department of Environmental
Protection must collect data on shade trees planted under this Chapter,
andm
those planted under other programs, to evaluate and provide
guidance to the County's tree canopy programs.
(gl
Tree canopy plan.
The Director of Environmental Protection, after
consulting other County agencies, the Planning Department. the
Forest Conservation Advisorv Committee, organizations representing
development and environmental interests. and the public. must
propose to the Executive and Council recommendations regarding:
ill
ill
tree canopy goals for the County; and
a comprehensive strategy to increase the number of trees
planted in the County.
55-10. Tree Canopy Conservation Account.
Established.
A Department assigned by the Executiye must create a
702
703
704
705
706
707
708
709
County Tree Canopy Conservation Account. The Account must be
used as provided in this Chapter and the adopted operating budget.
!l;U
Use of funds
.
The assigned Department must use funds deposited in the
Tree Canopy Conservation Account only to plant and maintain shade
trees. including costs directly related to site identification. preparation,
and other activities that increase tree canopy. Funds deposited into the
Account must not revert to the General Fund and must not be used to
128\
V
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BILL
No.
35-12
710
711
hire additional County staff or to supplant funds otherwise appropriated
to plant and maintain shade trees and enhance tree canoDY.
(£l
712
713
714
715
716
717
718
719
720
721
722
723
724
725
726
727
728
729
730
731
732
733
734
735
Fines.
Any fines collected for noncompliance with shade tree
planting requirements must be deposited in a separate account in the
Tree Canopy Conservation Account and must be used to administer
this Chapter.
@
Plantings.
ill
Shade trees native to the
used.
Piedmont~rea
of the County should be
if
feasible. to meet the mitigation requirements of this
Chapter.
ill
The planting of shade trees under this Chapter must occur in the
subwatershed where the project is located
if
feasible. Otherwise
the shade trees may be planted anywhere in the County.
55-11. Enforcement.
W
Compliance.
The Director may issue a notice of violation. corrective
order, stop-work Qrder. or civil citation to any person that causes or
allows a violation of this Chapter.
(bJ
Civil venaltv.
A violation of this Chapter is ::iClass A violation. The
maximum civil penalty for any violation of this Chapter or any
regulation adopted under this Chapter is $1.000. Each day that a
violation continues is a separate offense.
Sec. 2. Effective date; transition.
This Act takes effect on March 1. 2014. County Code Chapter 55. as inserted
by this Act. does not apply to any application for a sediment control permit accepted
by the Director of Permitting Services before that date.
@
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LEGISLATIVE REQUEST REPORT
Bill
~·12
Tree Canopy Conservation
DESCRIPTION:
This bill introduces requirements for fees when tree canopy is
disturbed. Generally,
it
applies when a sediment control permit is
required under Chapter 19 of the Montgomery COlUlty Code and the
trees are not subject to Article II of Chapter 22A. The bill requires
the fees to be used to plant new trees to mitigate for the loss of
benefits provided by the tree canopy. The new trees will
be
located
using a comprehensive approach to enhancing tree canopy across the
COlUlty.
Currently, the Forest Conservation Law (FCL) does not apply to most
"disturbances to individual trees outside of forests during
development. Also. it does not apply to development activity on lots
less
than
approximately one acre. In recent years, a significant
increase in development activity on small lots that are not subject to
the FCL has raised awareness of the value of trees to all residents, as
well as the need to provide commlUlities some compensation for the
loss of trees when development occurs.
This bill is designed to provide mitigation for the loss or disturbance
to tree canopy not currently regulated by the FCL. as well as
specifying that the fees "vill be used to plant trees across the COlUlty
using a comprehensive approach that will enhance the existing
canopy.
.
Department of Permitting Services, Maryland"National Capital Park
&
Planning Commission. Department of Environmental Protection
See Fiscal and Economic Impact Statement
See Fiscal and Economic Impact Statement
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
The Forest Conservation Law, Chapter 22A of the Montgomery
COlUlty Code, requires mitigation when forest land andlor champion
trees, as well as certain other vegetation, are disturbed.
Stan Edwards, Division Chief, Division of Environmental Policy and
Compliance, Department of Environmental Protection (7-7748)
This bill applies to all municipalities if the land disturbing activity
requires a sediment control permit lUlder Chapter 19 of the
Montgomery County Code that is approved and enforced by the
Department of Pennitting Services.
Class A
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~=.-=-=.-=--=--==.==·--::::-=-=·--=·-=-=--------;~iiii~c_·----=====================~-.:.-.:.---=-~
.
.
OFFICE OF THE COUNTY EXECUTIVE
ROCKVILLE, MARYLAND 20850
lsiah Leggett
County Executive
MEMORANDUM
October 25,2012
TO:
Roger Berliner, President
County Council
.- ..-.....
-~.:O'
FROM:
IsiahLeggett
~ p~
County Executive
~
SUBJECT:
Proposed Legislation: Tree Canopy Conservation Program
I
am transmitting for Council introduction a bill that creates a Tree Canopy Conservation
Program which
is
intended to protect and enhance the County's valuable tree canopy.
I
am also
transmitting a Legislative Request Report, Fiscal Impact Statement, and Economic Impact Statement.
This bill introduces requirements for fees when tree canopy is disturbed as a result of
development activity. Generally, the bill applies when a sediment control permit is required under
Chapter
19
of the Montgomery County Code and the trees are not subject to the County's Forest
Conservation Law (FCL). The bill requires the fees to be used to plant new trees to mitigate the loss of
benefits that were provided by the disturbed tree canopy.
When the FCL was adopted, the majority of development in the County was occwTing on
large, previously undeveloped parcels, much of which was forested. The FCL was intended to provide
compensation for the loss of forested land through the long-term protection of undisturbed forest or the
planting of new forests. As the amount of undeveloped land in the County has diminished, the majority
of development is now occurring on smaller, previously undeveloped "in-fill" properties or as the result
of redevelopment of previously built-out sites. W1ll1e these parcels contain few forests, they often contain
significant tree canopy due to the presence of individual trees or clusters of trees not meeting the
definition of a forest. These trees provide significant benefits to communities, including helping to
reduce ambient temperatures, clean the air, manage stormwater, and generally increasing the economic
value of the property. However, the majority of these trees are not covered under the FCL and, as a
result, there is no mechanism requiring compensation for the loss of these trees.
The Tree Canopy Conservation Program would be implemented by the Department of
Permitting Services or the Montgomery County Planning Department, depending on the nature of the
development activity. The process has been designed to be as streamlined as possible by incorporating
tree canopy review into the existing sediment control permitting process or the existing FCL review
process. The bill outlines the process for determining the extent of disturbed tree canopy subject to
regulation, but the specific fee structure would be set by regulation.
montgomerycountymd.gov/311
"'"
240-773-3556 TTY
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Roger Berliner
October 25,2012
Page 2
If you have any questions about this bill, please contact Bob Hoyt, Director of the
Department of Environmental Protection, at 240-777-7730 or bob.hoyt@montgomerycountymd.gov.
Attachments (4)
c.
Bob Hoyt, Director Department of Environmental Protection
Joe Beach, Director, Finance Department
-Kathleen Boucher, Assistant ChiefAdministrative.Officefc-.-·-.....
Marc Hansen, County Attorney
Diane Jones, Director, Department of Permitting Services
Jennifer Hughes, Director, Office ofManagement and Budget
®
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ROCKVILLE, MARYIAND
MEMORANDUM
September 25, 2012
••
_ _ _ _,_ _
••,_...
•.
______
.
_
.
~
_
~
,
,
~
n
_
~
.
,
~
~
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-
-
.
~
~
~
~
.
~
.
~
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.
,
~
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_
"
TO;
FROM:
Timothy L. Firei!'
e Chief Administrative Officer
Jennifer A.
Hu~
, Irector, Office of Management and Budget
Joseph F. Beach irector. Department of Finance
Bill
XX·12 -
Tree Canopy Conservation
SUBJECT:
Please find attached the fiscal and economic impact statement for the above-referenced
legislation,
JAH:ms
Attachment
c: Kathleen Boucher. Assistant Chief Administrative Officer
Lisa Austin. Offices of the County Executive
Joy Nunni, Special Assistant to the County Executive
Patrick Lacefield, Director, Public Infonnation Office
Michael Coveyou, Department of Finance
David Platt, Department of Finance
Stan Edwards, Department of
Environm~ntal
Protection
Barbara Comfort, Department ofPermitting Services
Reginald Jetter, Department ofPennitting Services
Alex Espinosa, Office of Management and Budget
Amy Wilson, Office of Management and Budget
Matt Schaeffer, Office ofManagement and Budget
Naeem Mia, Office of Management and Budget
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Fiscal Impact Statement
Bill
XX~12
-
Tree Canopy Conservation
1.
Legislative Summary
The proposed bill revises County law regarding tree canopy conservation in an effort to
save~ maintai~
and establish tree canopy for the benefits of County residents and futme
generations. The bill would maximize tree canopy retention and establishment by
establishing fees to be assessed when distW"bance to the tree canopy occurs; these fees
would then fund mitigation activities to restore the distmbed tree canopy.
The Department of Permitting Services (DPS) and the Maryland National Capital Park and
.Planning Commission (M-NCPPC)
will
administer the law; the Department of
Environmental Protection (DEP) will have oversight oftree canopy restoration activities.
2. An estimate of cbanges in County revenues and expenditures regardless of whether
the revenues or expenditures are assumed in the recommended or approved budget.
Includes source of infonnation, assumptions, and methodologies used.
DEP has indicated that new work created as a result of this legislation (tree canopy
restoration activities)
will
have costs that will correlate to the amount of received fees.
While the cost of future work is not known, DEP has asserted that any future costs related
to tree canopy restoration activities
will
not exceed collected fees.
A. M-NCPPC has estimated a cost of$12.480 annually and a one-time first-year
expenditme of $3,600 related to planning the tree canopy restoration policies outlined in
the bill. Some ofthe specific planning activities related to tree canopy restoration
conducted by MNCPPC
1
include:
• Development of a planting plan (One-time investment of 20 work hours)
• Annual Report development (20 work hours)
• Development of a Fee Schedule (One-time investment of 40 work hours)
• Annual adjustment of fee schedules (8 work hours)
• Plan Review Time (60 forest conservation plans per year
@
3 hours per plall)
B. DPS has indicated fiscal impacts relating to the inspection and fine assessments of tree
canopy wstmbance of approximately $67,118 annually in the following work areas:
500 additional inspection and assessment projects (S25,752/annually)
Permit Technicians (250 work bours): $8,878
(.5 Hrs each project @ Grade 19
midpoint
salary of $56,828 plus benefits
2
or $35.5 IIhr)
• Permit Services Specialists/Plan Reviewers (125 work hours): 56,166
(.25 Hrs each project@Grade26 midpoint salary 0($78,929 plus benefits or $49.33/hr)
Inspectors (250 work hours): $10,708
(.5
Hrs each project
@
Grade 23 midpoint salary of$68,531 plus benefits or $42.83/br)
200 additional complaints relating to tree loss (S41,366/annually)
Permit Technicians (200 work hours): $7,102
(l
Hr each project@ Grade 19 midpoint salary 0($56,828 plus benefits or $35.5 I/hr)
estimates are based on a rate of $60 per hour.
2
Benefit calculation is
30
percent
of base pay.
1
Cost
1
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~------------.---.-.---
._­
-----------.-
..
-
• Inspectors (800 work hours): $34,264
(4 Hrs each project@ Grade 23 midpoint salary of$68,531 plus benefits or $42.831hr)
Revenues resulting from this legislation will depend on the determination of a rate model
for tree canopy disturbance fees. The rate model will be established via method 2
regulation.
3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
DEP has indicated that new work created as a result of this legislation (tree canopy
restoration activities) will have costs that will correlate to the amount of received fees.
While the cost of future work is not known, DEP has asserted that any future costs related
to tree canopy restoration activities will not exceed collected fees.
DPS reports future expenditures of approximately $62,118 annually (as explained above).
The total six-year expenditures for DPS are approximately $402,708.
M -NCPPC reports annual expenditures of $12,480 with a one-time startup charge of
$3,600 to implement the planning and implementation plan for the bill (as explained
above). Total six-year expenditures for M-NCPPC are approximately $78,480.
Revenues resulting from this legislation will depend on the determination .of a rate model
for tree canopy disturbance fees. The rate model will be established via method 2
regulation.
4. An actuarial amllysis through the entire amortization period for each bill that would
affect retiree pension or group insurance costs.
Not applicable. This bill does not affect retiree pension or group insurance costs.
5. Later actions that may affect future revenue and expenditures if the bill authorizes
future spending.
.
The bill authorizes the creation of a Tree Canopy Conservation Fund that would fund tree
canopy restoration activities in the future.
6. An estjmate of the staff time needed to implement the bill.
Whlle DEP does not expect the need for additional stafftime to implement the bill, future
staff needs could change depending on the extent of tree canopy restoration activities
resulting from the bill.
DPS reports the need for an additional 1,625 work hours annually in different job classes
to implement the bill.
l\1NCPPC reports the need for an additional 208 hours annually and 60 hours
to start up the program in the first year of implementation.
7. An explanation of how the addition of new staff responsibilities would affect other
duties.
2
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While DEP does not expect the need for additional staff time
to
implement the biH, the
actual impact on staff will depend on the extent of tree canopy restoration activities
as a result of implementing the bill.
DPS reports that the bill would impact both the workload of permitting staff and permit
reviewing staff. Estimates for costs of additional work are provided above.
M-NCPPC reports that the bill would impact the workload of forest conservation
planners. Estimates for costs of addition work are provided above.
8. An estimate of costs when an additional appropriation is needed.
Not applicable.
9.
A
description of any variable that could affect revenue and cost estimates.
DEP has indicated that costs and revenues relating to tree canopy restoration will be
dependent on the amount of fees received. The rate model for fees will
be
established by
method 2 regulation.
Article IV, Section 55-13(c) allows for the establishment of a fee for administering the
program;' this fee would be adopted under method 3. An administrative fee has not been
established but could impact revenue and cost estimates.
Article III, Section 55-11 (c) establishes a maximum $1,000 civil penalty for violation of
the proposed legislation. Fines would be deposited into the Tree Canopy Conservation
Fund and could be used to implement any part of the bill. Estimates ofrevenue from
these fmes are difficult to predict without knowing the extent of the violations.
10. Ranges of revenue or expenditures that are uncertain or difficult to project.
DEP has indicated that costs and revenues relating to tree canopy restoration will be
dependent on the amount of fees received. The rate model for fees will be established by
method 2 regulation.
Article IV, Section 55-13(c) allows for the establishment of a fee for administering the
program; this fee would be adopted under method 3.
An
administrative fee has not been
established but could impact revenue and cost estimates.
Article III, Section 55-11 (c) establishes a maximum $1,000 civil penalty for violation of
the proposed legislation. Fines would be deposited into the Tree Canopy Conservation
Fund and could be used to implement any part ofthe bilL Estimates of revenue from
these fines are difficult to predict without knowing the extent ofthe violations.
11.
If
a bill
is
likely to have no ilScal impact, why that is the case.
Not applicabJe.
3
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12.
Other fiscal impacts or comments.
This bill creates a Tree Canopy Conservation Fund as the account for fees collected as a
result of tree canopy disturbance and the source of funds for tree canopy restoration
projects. DEP would manage this fund.
13. The following contributed to and concurred with this analysis:
Stan Edwards, Department of Environmental Protection
Barbara Comfort, Department of Pennitting Services
Reginald Jetter, Department of Permitting Services
Rose Krasnow, :MNCPPC
Amy Wilson, Office of Management and Budget
Matt Schaeffer, Office of Management and Budget
Naeem Mia, Office of Management and Budget
~I/(~
Date
4
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..
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Economic Impact Statement
Council Bill XX-12. Tree Canopy Conservation
Background:
The purpose of this legislation is to: 1) save, maintain, and establish tree canopy for the benefit
of County residents and future generations; 2) maximize tree canopy retention and establishment;
3) establish procedures, standards, and requirements to minimize the loss and disturbance of tree
canopy as a result of development; 4) provide for mitigation when tree canopy is lost or
disturbed; and 5) establish a fund for tree canopy conservation projects, including plantings of
individual trees, groups of trees, or forests, on private and public property. The proposed
legislation generally revises County law regarding tree canopy conservation.
The requirements of this bill are applicable when a sediment control pemnt is required under
Chapter 19 of the Montgomery County Code and the trees are not subject to Article II of Chapter
22A. The bill supplements the Forest Conservation Law (FCL). The FCL does not apply to
most disturbances to individual tress outside of forests during development, and it does not apply
to development activity on lots less than approximately one acre.
1.
The sources of information, assumptions, and methodologies used.
Not applicable
2.
A description of any variable that could affect the economic impact estimates.
The economic impact of the bill wil1 vary based on a number of factors including the amount of
acreage that is the subject of the sediment control permit, the area of tree canopy on land covered
by such a permit, the amount of the fee impOSed per square foot of tree canopy disturbed as a
result of the development activity subject to the permit, and the market conditions at the time of
development. The cost of development for each property
will
be affected by the amount of tree
canopy disturbed times the fee.
3.
The Bill's positive or negative effect, if any on employment, spending, saving,
investment, incomes, and property values in the County.
The bill may increase the cost for developing some properties, and those costs may affect the
gross profit rhargin to the developers or the price of the property. However, some studies
indicate that property with trees can have a higher value than property that is cleared of trees. To
the extent that the proposed legislation encourages developers to retain trees, they may realize a
higher return than if they clear the site. However, this analysis would vary by property and
market conditions and would need to factor in the cost of removing trees as well as the impact of
the cost of the fee. With a specific fee structure it will be possible to estimate these potential
costs.
1
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Economic
Impact
Statement
Council Bill XX-12, Tree Canopy Conservation
4.
If
a
Bill
is likely to have no economic impact, why is that the case?
Not applicable; see item
3.
5.
The
following contributed to and concurred with this analysis: David Platt and Mike
Coveyou, Finance and Stan Edwards, Environmental Protection.
Date (
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Why is a tree canopy bill needed?
• .Development patterns have been changing
- Fewer large parcels are left to subdivide
- More previously built lots are being redeveloped
• The County is losing canopy during redevelopment,
particularly in residential neighborhoods
• Local benefits provided by tree canopy include
- increased property values
- increased revenues for businesses
- cleaner and cooler air and water
- lower heating and air conditioning bills
- many social benefits
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The Forest Conservation Law
• The Forest Conservation law (FCl) was designed to
slow the loss of forest at a time when large tracts
were subdivided into small lots
• The FCl requires mitigation when forests are lost
due to development
• The FCl generally applies to properties over 40,000
square feet when a sediment control permit is
required, or when subdivision activity occurs
• The FCl applies to large trees (over 24" dbh) outside
of forests and to all Champion trees
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Tree Canopy Bill- Guiding Principles
As requested by the County Executive, the Tree Canopy
Bill was designed to be:
- An approach that could be easily understood by the
regulated community
- A streamlined process for the development community
- Something that could be implemented with minimal costs
to both the applicants and the County
~
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When does the Tree Canopy Bill apply?
• Applies to any activity requiring a sediment control
permit:
- New residential or commercial building;
~
5,000
square feet or more of ground disturbance; or
- 100
cubic yards or more of earth movement.
• The cutting of
5,000
square feet or more of canopy is
considered ground disturbance
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Activities not covered by the Tree Canopy Bill
• The removal of an individual tree or group of trees
less than 5,000 square feet in canopy area
• Any agricultural activity where a sediment control
permit is not required
• Routine tree maintenance activities of electric
utilities where a sediment control permit is not
required
• Stream restoration and stormwater facility·
maintenance activities with all appropriate permits
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Who implements the Tree Canopy Bill?
• The requirements of the bill are implemented during
existing
revie~1.
processes:
- The Montgomery County Planning Department
implements the bill for all development activities
subject to the Forest Conservation law (FCl)
- The Department of Permitting Services
implements the bill for all other applicable
activities during the Sediment Control Permit
process
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Limit of Disturbance
(
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Mitigation Fee based
on canopy area within
Limit of Disturbance
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