AGENDA ITEM 5A
July 23, 2013
Action
MEMORANDUM
TO:
FROM:
County Council
~Michael
Faden, Senior Legislative Attoptey.
n'
, Amanda Mihill, Legislative Attorney
~
Action:
Bill 41-12, Streets and Roads - Roadside Trees - Protection
SUBJECT:
Transportation, Infrastructure, Energy and Environment Committee recommendation
(2-0-1, Councilmember Floreen abstaining): enact with a comprehensive amendment.
Bill 41-12, Streets and Roads - Roadside Trees - Protection, sponsored by Councilmembers
Berliner and EIrich, was introduced on December 11,2012. A public hearing was held on January
17 (see select testimony and correspondence beginning on ©43). Transportation, Infrastructure,
Energy and Environment Committee worksessions were held on January 28, February 25, April 1,
and June 24.
Bill 41-12 would require certain applicants to obtain a permit for certain roadside tree
activities as part of the existing right-of-way permit that the Department of Permitting Services
issues, would authorize the Department of Transportation to create a tree replacement fund to pay
for needed roadside trees, and would direct the County Executive to adopt regulations further
specifying roadside tree work standards.
This Bill would implement a 2009 state law (2009 Laws of Maryland Chapter 289, codified
at Maryland Code, Nat. Res. Art. §5-403(d)-(f)), which gave counties the authority to supplement
state laws governing roadside trees as long as the County law does not conflict with, and is more
stringent than, the State law.
Background/Comparison with State law
What does the current state law require?
The current State roadside tree law and regulations
i
require a person who cuts down any roadside tree, defined in state regulations as "a plant that has a
woody stem or trunk that grows all, or in part,
within
the right-of-way of a public road", to get a permit
from the Department of Natural Resources (DNR). DNR may issue a permit only if the proposed work
ISee State law, ©29-3\, and regulations, ©32-41.
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will eliminate a hazard to property, public safety, or health; improve or prevent a deteriorated tree
condition; or improve the general esthetic appearance of the right-of-way. A state permit is not
required:
• ifthe tree is uprooted or branches are broken and contact electricity wires;
• if the tree or branches pose an immediate danger to person or property;
• if the tree is in the right-of-way of an unsurfaced road and the abutting landowner removes
the tree for the landowner's own use;
• to cut or clear land for an electric generating station;
• for routine maintenance of a public utility right-of-way; or
•. to cut or clear a public utility right-of-way or land for a new utility transmission or
distribution line.
State regulations also require permittees to adhere to specific tree care standards (see ©37-39).
Unless DNR waives the requirement, if a permittee removes a roadside tree the permittee (or
conceivably the government agency responsible for the right-of-way) must plant a replacement tree
that is on DNR's recommended tree list. Anyone seeking to remove a roadside tree must obtain the
consent of the property owner.
Is County legislation needed?
Several speakers at the public hearing questioned whether Bill
41-12 was unnecessarily duplicative of state law. Some landowners obtain the appropriate state permit
before removing or performing tree work on a roadside tree, but almost certainly others do not. For
instance, in 2011 - the latest data that staff has - DNR issued 112 private roadside tree care permits.
For the same year, DNR issued 189 total permits, including private, government, and utility permits.
Data from DNR indicates that the number of permits issued is trending up. But, by its own admission,
because of inadequate staffing DNR rarely, if ever, follows up or supervises tree care practices on any
private permit. (DNR does follow up on permits issued to utilities.)
Other speakers alleged violations of tree care work standards on roadside trees. Simply put,
they allege an apparent lack of adequate enforcement and follow-up for the State permit. (See
Conservation Montgomery statement on ©43.) Currently, to get a County building permit, DPS
requires the permittee to submit an affidavit declaring that either no roadside trees are involved in the
permit; roadside trees are in the area, but they would not be affected by the proposed construction; or
roadside trees are in the area and will be affected by the construction and the permit applicant has
received the appropriate permit from DNR (see DPS affidavit on ©42). However, there are limits to
what DPS can require. The County Attorney concluded that in order to enforce County roadside tree
requirements, the County needs an appropriate legal basis in either state or County law or regulations.
Since the County does not have the authority now to enforce State
la~,
the County would have to
enact its own law to effectively offer more protection to roadside trees.
What would Bill
41-12
require?
As introduced, Bill 41-12 closely mirrors the requirements
in state law and regulations, but allows the County Department of Permitting Services (DPS) to
enforce them. Under Bill 41-12, a person seeking to cut, clear, or do other tree work on a roadside
tree would need to get a permit from DPS. Bill 41-12 would define roadside tree as a "single-stem
2
State
law (Nat. Res. Art. §5-404(b); see ©30) allows DNR to transfer authority to the County to enforce state law, but
DNR has not taken any action to do so.
2
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plant that has a woody stem or trunk that grows all, or in part, in the right-of-way of any County or
State public road or shared use trail."
Roadside tree
would include the tree's critical root zone. Bill
41-12 closely follows the State law's exceptions to the permit requirement. As discussed below, the
Committee amendments to Bill 41-12 would take the Bill in a different direction.
Is Bill
41-12
more stringent than state law?
As
noted above, state law allows the County to
enact a more stringent roadside tree law. The sponsors ofthis Bill crafted it to closely mirror state law.
In some respects, Bill 41-12 as introduced is more stringent than the state law. For instance,
as introduced, Bill 41-12 would define "roadside tree" to include the critical root zone (although the
Committee pared the definition of roadside tree back to essentially the state definition). Bill 41-12
would also be stricter than state law in that state law allows an abutting landowner to cut down a
tree without a permit if the tree is in a right-of-way that does not have an improved surface, but
County law would require a permit in that case.
In many other respects, Bill 41-12 s introduced and the state law are similar. The Bill,
however, has a few provisions that on first glance appear to be less stringent than state law. For
instance, state regulations specify the information that must be on the permit,3 the fee schedule, and
specific roadside tree care standards, including where limb cuts should be made, what tree clearance
for overhead facilities should be, ground disturbance requirements, and protection of tree roots. Bill
41-12 does not replicate these requirements, but instead directs the County Executive to develop
regulations that are at least as stringent as the state law. In our view, the County law would be more
stringent that the state law if the County law mirrors the state law but requires a more vigorous
replanting/replacement requirement, as the Committee redraft of this Bill does.
Committee redraft
At its fourth worksession on this BilI on June 24, the Transportation, Infrastructure, Energy,
and Environment (T&E) Committee recommended enactment of a comprehensive redraft, developed
by Council and Executive staff at Committee Chair Berliner's behest, that would narrow the Bill to its
essential elements and give DPS the regulatory authority it believes it needs to protect trees in the
County rights-of-way.
The Committee redraft is shown on ©1-20.
(The text from
©5,
line
91
to
©14,
line 330, that is double-bracketed and italicized, was deleted in the Committee redraft.)
This redraft would:
• maintain the state law's definition of "roadside tree";
• not create a new County permit. A County right-of-way permit was always required under
County Code §49-35. This redraft clarifies, as DPS already interpreted the law, that a right­
of-way permit is needed for any action that affects a tree
in
the right-of-way;
• require an applicant to submit, and DPS to approve, a site-specific tree protection plan if
any roadside tree would be affected before DPS can issue a permit under County Code
Chapters 8 (Buildings),
19
(Erosion, Sediment Control, and Stormwater Management), or
3Por instance, name and address of permittee, type of tree care permitted, and any limitations on the permit.
3
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49 (Streets and Roads), thus integrating roadside tree protections into the current permit
processes;
continue the state-required exemption for tree work by a public utility on its transmission or
distribution lines, but not its other facilities (substations, office buildings, etc.);
require a permittee who removes a roadside tree both to plant another tree, from a County
recommended tree list, at or near the site, and also to pay into a tree replacement fund in an
amount set by regulation that will allow the County to plant 2 more trees in a right-of-way;
require each new roadside tree that anyone plants on a County right-of-way to be on the
County recommended tree list, thus controlling the type of replacement trees;
direct the Executive to adopt regulations to implement the County law that are at least as
stringent as the state law; and
postpone the Bill's effective date until March 1, 2014, as requested by DPS to give them
time to prepare for its implementation.
Issues/Committee recommendations
The narrow scope of the Committee redraft, and the need to conform to the state law, in staffs
view rendered moot a number of issues discussed in earlier Committee worksessions. However, at its
June 24 worksession the Committee considered the remaining issues.
In
Council staff's view, this
comprehensive redraft is nowhere less stringent than state law and clearly meets the state law's
more-stringent requirement in at least two ways. First, while the state law requires an applicant for
a County building or similar permit, if the work will injure or affect a tree in the right-of-way, to
obtain a state permit for that tree, the redraft goes a step further and requires those applicants to
submit, subject to DPS' approval, a site-specific tree protection plan. This tree protection plan
would require an applicant to take "all necessary measures" to protect and minimize damage during
development to a roadside tree. "All necessary measures" is the standard set by the state
regulation.
4
In
a tree protection plan, which should not require the services of an arborist to prepare,
the applicant would have to show, for example, how it would avoid parking its equipment in the tree's
root zone or otherwise damaging the tree.
1) Is this redraft more stringent than state law?
This redraft does not require the County to issue a specific permit to remove or affect a
roadside tree unless the applicant is doing no other work in the County right-of-way, which is rarely the
case; otherwise, the applicant would already have to obtain a County right-of-way permit.
In addition to requiring a tree protection plan, the redraft requires mitigation beyond what
state law requires. State regulations provides that unless exempted by the Forest Service, if a
s
permittee removes a street tree, the permittee must replant a tree that is suitable to the location. The
redraft requires a permittee that removes a street tree (except one that is already dead) to plant a tree
at or near the location of the removed tree, if feasible,
and
pay an amount to a Street Tree Planting
Fund that will allow the County Department of Transportation (DOT) to plant 2 suitable
4See
COMAR
OS.07.02.07.C.(2),
shown on
©38.
5See
COMAR
OS.07.02.05.E,
shown on
©35.
4
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replacement trees. If it is not feasible to plant a tree, the permittee must then pay an amount into the
Fund that will allow the Department to plant 3 suitable replacement trees.
The redraft's provision regarding County consent before the state DNR issues its permit (see
©17, lines 409-416) reflects DNR's current practice of checking with the County in its role as
ownerlholder of the right-of-way. This language does not, and is not intended to, imply that DNR
must obtain County consent before issuing its tree care permit. Rather, it directs the County's own
staff (normally the County DOT) not to provide consent
if
and when DNR asks for it
until they first
check with DPS. Since under an amendment offered by Council member Riemer DPS must approve
tree protection plans within 30 days in most circumstances, this internal coordination requirement is
not likely to significantly slow down either the state or County processes.
Committee recommendation: adopt the tree protection plan requirement, and require 3­
for-l replacement of removed street trees.
2) How should the tree replacement fee be set?
This redraft had contained an apparent
internal contradiction regarding how the amount of the tree replacement fee, which is paid into the
Street Tree Planting Fund when a roadside tree is removed, is calculated. In the prior version of this
redraft, §49-36A(e)(l)(B) required an amount that would allow DOT to plant 2 (or 3 if on-site
planting is not feasible) replacement trees. The next paragraph, §49-36A(e)(2), by contrast,
required the fee to be set according to specific factors related to the removed tree.
6
These differences could be harmonized, say by setting the replacement cost as the minimum
amount but requiring a higher rate (i.e. to plant more replacement trees) to reflect the size,
condition, and value of a specific high-value removed tree. Some in the building community raised
concerns with using subjective factors to set any fee and wanted to base the payment on the rate
DPS already sets to bond trees that it requires. On the other hand, some environmental advocates
preferred an approach that considers the value of the lost tree as well as the cost to replace it.
Research into formulas used to determine a tree's value revealed that
it
is not a simple
calculation and depends on highly variable factors. What appears to be an often used method of
valuing large trees is termed the "trunk formula method" and is used for trees that, due to their size,
cannot be transplanted (i.e., large trees). This method uses the following factors in determining
replacement cost: diameter, species, condition, and location. Because of the variable nature of these
factors, Council staff didn't believe it is practical to legislate all of these factors, but if the language
on ©88 lines 150-152 is retained, the regulation could take them into account.
7
Committee recommendation: base the replacement fee on the cost to plant 2 more trees
(unless the removed tree was already dead), rather than the value of the removed tree.
the first worksession, Council staff noted that a legal issue arose after the hearing on whether the fee under this provision
must
be
treated, for notice and hearing purposes, as a tax. The County Attorney concluded (see opinion, ©74), and County
staff concurs, that this fee need not be treated as a tax and can properly be enacted as a fee.
further
information,
see:
http://www.ag-econ.ncsu.eduifaculty/vanderhoeven/TREELOSS.POF
and
7
For
https:liut~2S1~l~lon.tenn~g;ee
..
~.!!LnublicatlQ!l§lOocumentsiSP614;&gJ
6
At
5
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3) Should the County or the permittee be responsible for street tree replanting?
Mark
Buscaino of Casey Trees also argued that the replacement tree required by the state regulation need
not be replaced on site and need not be planted by the property owner. Under this Bill the applicant
can and must, as he can now, plant one tree in the right-of-way with DOT's approval. While the
Bill doesn't so specify, DOT can always approve an applicant's request to plant more than one tree
in the right-of-way if space is available.
Speaking with staff at DNR, it became clear that, in their view, allowing a permittee to pay
into a fund instead of replanting a tree is less stringent than state law. While we're not sure that the
state regulation would allow the replacement tree to be planted elsewhere, we think it could be
planted by DOT, as this redraft allows but only when planting on-site isn't feasible. Under the
waiver language on ©18, lines 430-434, the applicant can simply pay DOT for all 3 trees, giving
DOT the flexibility to plant them wherever a County-wide strategy calls for.
Committee recommendation: require the applicant to plant one tree on-site unless the
removed tree was dead or DPS finds that on-site planting is not feasible.
4) Should agricultural activities be exempt from the County law?
The Council heard
testimony and received correspondence from the Soil Conservation District and the Farm Bureau
urging the Council to exempt routine maintenance on public rights-of-ways and agriculturally assessed
properties from the permit requirement (see ©54-55 and 56-57). At its fIrst worksession, the
Committee directed staff to review whether the County's agricultural areas could be excluded from
Bill 41-12. In prior worksessions, Council staff had recommended excluding "prescriptive
easements" from the bill, which would in effect exclude many roads in the agricultural area.
Council staff understood from some in the agricultural community that the State does not
enforce its own law in agricultural areas. Council staff contacted the State DNR to see whether they
considered roads in agricultural areas to be exempt from the law. DNR staff replied that the state
law applies statewide for any road that meets the statute's criteria. We interpret this reply to say
that roads in agricultural areas are not exempt from the state law. Therefore, to exempt them from
the County law would run afoul of the state law's stringency requirement. In any case, relatively
few activities in agricultural areas require building permits or sediment control permits, so the tree
protection plan requirement will rarely apply.
Committee recommendation: do not exempt agricultural areas from the County law.
5) Should the standards for County regulations be broadened?
This redraft assumes that
Executive regulations will be needed to implement this law and fIll in many details. The primary
provision authorizing those regulations is on ©19, lines 465-476. Small builders would rewrite that
provision to include (and perhaps emphasize) factors beyond tree protection, such as other costs and
"practical requirements necessary to develop the site".
Council staff did not believe this amendment is advisable or necessary, and the Committee
did not recommend it. Under the state law, tree protection must be the primary purpose of any
County law. Since the state does not explicitly consider these other factors, staff doesn't think the
6
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County can either. Any regulations the Executive ultimately adopts are, under Method 2, subject to
Council disapproval, so the Council can monitor them and reject any unacceptable provisions.
6) How would the County law apply in municipalities?
Bill 41-12 would apply to County
rights-of-way in any municipality where the County is responsible for maintaining trees in the right-of­
way. The City of Takoma Park requested an exemption from the County law because it enforces its
own tree permitting process. Council staff believes that the County law already does not (and probably
cannot) apply to any municipality that maintains its own rights-of-way. Therefore, the amendment
proposed by the Takoma Park City Attorney on ©72, while not inconsistent, is unnecessary.
7) What is a suitable effective date?
The Committee redraft sets an effective date of March
1, 2014, as DPS requested. Any project would be grandfathered if the applicant applied for the
necessary building, sediment control, or right-of-way permit before the March 1 effective date. See
©20, lines 477-479.
Additional amendments
Tree planting strategy Two potential amendments concern the County's strategy for
planting trees in its rights-of-way, using the funds in the Street Tree Planting Fund authorized in
©18, lines 435-449.
1) Council President Navarro may offer an amendment to direct funds to those areas of the
County currently with inadequate or below-average tree canopy coverage. This amendment would
insert the following on ©18, line 449:
In planting trees under thi§mparagraph. the Department must give highest priQ)jty to those
areas of the
CO ll
!1ty. sych as central business d,istricts and other urban and suburban areas,
that have relatively loW' tree canopy coverage.
2) Councilmember Leventhal may offer an amendment to require the County, in its right-of­
way tree planting strategy, to include measures to avoid utility transmission and distribution lines.
This amendment would insert the following on ©18, line 449:
selectin14 and planting trees under this paragraph. the Department must take
every reaSQnl:lplemeasyre to avoid interference with utility transmission and distribution
In
locating,
This packet contains:
Bill 41-12 with Committee recommendations
Legislative Request Report
Fiscal and Economic Impact Statement
State roadside tree law
State regulations
DPS Affidavit
Circle
#
1
21
22
29
32
42
7
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Selected testimony
Conservation Montgomery
Mark Buscaino, Casey Trees
Maryland-National Capital Building Industry Assoc.
Montgomery County Farm Bureau
Montgomery Soil Conservation District
Neighbors of the Northwest Branch
Pepco
Renewing Montgomery
Takoma Park memos
County Attorney memo
43
48
52
54
56
60
62
65
69
74
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Bill No.
41-12
Concerning:
Streets and Roads ­
Roadside Trees - Protection
Revised:
7-17-13
Draft No. -'-'19"---_
Introduced:
December 11, 2012
Expires:
June 11. 2014
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective:
March 1. 2014
Ch.
Laws of Mont. Co. _ _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Berliner and EIrich
AN
ACT to:
(1)
require [[a permit]] certain persons to file, and the Department of Permitting
Services to apprQYhA..!ree protection plan, and to obtain a right-of-way permit for
certain activities affecting roadside trees;
require certain persons to plant certain trees and to pay into a roadside tree
replacement fund under certain circumstances;
require the County Executive to adopt regulations specifying certain roadside tree
protection, conservation, and replacement standards; and
generally amend the law regarding streets and roads.
(2)
(3)
(4)
By amending
Montgomery County Code
Chapter 2, Administration
Section 2-112
Chapter 8, Buildings
Section 8-26
Chapter 49, Streets and Roads
Sections 49-35 and 49-36
By adding
Chapter 19, Erosion, Sediment Control and Storm Water Management
Section 19-71
Chapter 49, Streets and Roads
Section 49-36A
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill,
Added by amendment.
Deletedfrom existing law or the bill by amendment,
Existing law unqffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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Bill 41-12
1
2
3
4
Sec. 1. Sections 2-112, 8-26, 49-35 and 49-36 are amended and [Section]
Sections 19-71 and 49-36A [is] are added as follows:
2-112.'
Jurisdiction.
*
(c)
*
*
5
The Board has the following appellate jurisdiction.
The Board must Those appeals involve:
hear and decide
each
appeal
taken under:
*
6
7
8
*
*
[[Permits for grading and construction]] Right-of­
way permits
Section 49-35
*
8-26.
Conditions of permit.
*
*
*
*
*
(n)
9
10
11
Tree protection.
If any clearing. construction. or development allowed
by any pefIllit i§sued under this Chapter would result in the trimming,
cutting, removal, or injury of any roadside tree (as defined in Section
49-35) or any tree located in a State right-of-way in the County, the
Director must not issue that permit until:
12
13
14
15
16
17
18
ill
!Zl
the applicant obtains a roadside tree care permit as necessary
from the State Department of Natural Resources: and
the applicant has submitted, in connection with the permit applied
for under this Chapter. and the Director has approved, a site­
specific tree protection plan that meets the requirements of
Section 49-36A(d}.
19
20
21
The Department must approve or reject each proposed plan within 30
days after receiving
it.
If the Department does not act on a proposed
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Si1l41-12
22
23
24
25
26
plan within 30 days, the plan is approved by default. The Department
may require further information after a proposed plan is submitteg. and
may extend this deadline once for an additional 15 days to receive any
needed information. The Department also may extend this deadline at
the request of the applicant.
27
28
Lcl
Regulations.
The Director may recommeng. and the Executive may
adopt. regulations under Method (2) to specify standards and practices
needed to protect and maintain roadside trees. including construction
practices needed to prevent
Q[
minimize damage to roadside trees, under
subsection (n)
These regulations must be at least as stringent as
29
30
31
32
33
applicable state roadside tree care standards and requirements.
19-71.
Tree Protection.
34
35
36
!ill
If any clearing. construction, or development allowed by any permit
issued by the Department of Permitting Services under this Chapter
would result in the trimming, cutting. removaL or injury of any roadside
tree (as defined in Section 49-35) or any treeJocated in a State right-of­
way in the County, the Director must not issue that permit until:
37
38
39
ill
the applicant obtains a roadside tree care permit as necessary
from the State Department ofNatural Resources: and
40
41
42
ru
the applicant has submitted, in connection with the permit applied
for under this Chapter, apd the Director has approved. a site­
specific tree protection plan that meets the requirements of
Section 49-36A(d). unless the applicant is engaged in an activity
described in Section 49-36A(b)(2l.
43
44
45
46
ail
The Department must approve or reject each proposed tree protection
plan within 30 days after receiving it. If the Department does not act on
47
48
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w\B1LLS\1241 Streets And Roads-Roadside Trees\Draft 19 T&E Full.Doc
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Bill 41-12
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
Department may require further information after a proposed plan is
submitted. and may extend this deadline once for an additional 15 days
to receive any needed information. The Department also may extend
this deadline at the request of the applicant.
!£)
The County Executive may adopt regulations under Method
(2)
to
specify standards and practices needed to protect and I"Ilaintain roadside
trees. including construction practices needed to prevent or minimize
damage to roadside
tre~s,
under this Section. These regulations must be
at least as stringent as applicable state roadside tree care standards and
requirements.
49-35.
[Permits for grading and construction] Right-of-way [[and roadside
tree work]] permit.
(a)
(1 )
A person must not construct any road, sidewalk, shared use path,
curb and gutter, driveway, or drainage structure[, or]; begin any
such construction (including clearing, grading,
and tree
cutting)[,]; or perform any tree work on any roadside tree
(including removing a stump in a County right-of-way), without a
permit from the Director of Permitting Services. Any permit
issued for roadside tree work must comply with Section
49-36A.
In thisf\rticle. "roadside tree" means any plant that has a woody
stem or
trunk
which grows all. or in part. in the right-of-way of
any County public road.
(2)
In this Section and Sections 49-36
1
49-36A,
and 49-37, unless
otherwise specified, Director refers to the Director of Permitting
Services and Department refers to the Department of Permitting
Services.
*
*
*
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Bill 41-12
76
77
78
79
(b)
The Director must collect
!!
fee, set by Method
d
regulation,
for each
right-of-way [[and roadside tree work]] permit application.
w
[(c)]
@
[(e)]
*
*
*
*
*
*
80
81
82
[(d)]
W
Any violation of this Section is a Class A violation.
ill
[Half] The Director must refund half the fees required by this Section
[must be refunded] to the applicant if a permit is rejected or withdrawn
[prior to the commencement of] before construction begins.
If an
83
84
85
86
87
88
89
90
applicant proposes to undertake a project using materials, standards, or
specifications superior to those required under this Article, the fees
charged must be computed on the estimated cost of the project as if it
met those requirements.
[(t)]
(g)
[(g)]
{h)
*
*
*
*
*
*
49-36A.
Roadside tree work.
91
{{ra) Definitions. In this Section, the following words have the meanings
indicated:
Certified arborist means
f!
person who is certified as an arborist
ill!.
the
International Society
Q[
Arboriculture or who the Director finds has an
equivalent level
Q[
experience and training.
Critical root zone means the minimum area beneath
f!
tree (typically
f!
concentric circle not less than
1.5
feet per diameter/inch
Q[
the tree,
measured at
4.5
feet above ground level) that must be protected to
preserve sufficient root mass to give the tree
f!
reasonable chance
Q[
long-term survival.
92
93
94
95
96
97
98
99
100
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Bill 41-12
101
102
103
104
Licensed tree expert means gperson licensed under Title
~
Subtitle
1.
Q[
the Natural Resources Article
Q[
the Maryland Code or any successor
provision.
Pesticide means a:
105
106
107
108
ill
chemical or biological preparation used to kill, inhibit, or
regulate growth on g targeted plant, plant spore. or plant seed,
including:
{Al
an herbicide;
an insecticide;
g tree growth regulator .. and
gfUngicide; or
109
110
111
(J1l
{Sd
(D)
112
113
114
m
substance or mixture
Q[substances
intended:
{Al
to prevent, destroy, repel, or mitigate gpest;
fOr use as gplant regulator. defoliant, or desiccant; or
.for use as g spray adjuvant, such as g wetting agent or
adhesive.
(J1l
{Sd
115
116
117
118
Recommended County tree list means g list
Q[
trees approved
In!..
the
Director after consulting the Chief
Q[
Tree Maintenance in the
Department
Q[
Transportation. The recommended tree list must include
each tree that the Department identifies as suitable .for planting on
specific sites and conditions in the right-of-way
Q[gpublic
road.
Roadside tree means any single-stem plant that has g woody stem or
trunk that grows all, or in part, in the right-of-way
Q[
any County or
State public road or shared use trail. {{Roadside tree includes the tree's
critical root zone./J
Tree work means
f!!1J!
activity affecting g roadside tree, including:
119
120
121
122
123
124
125
126
127
ill
removal
Q[g
roadside tree or g remaining stump;
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Bill 41-12
128
129
130
131
132
133
m
ill
{11
planting pruning. root-pruning, or trimming
f!.
roadside tree; .
application gf pesticide directly to or in the [[critical root zone
gf)]
right-or-wav abutting
f1
roadside tree;
protection gf
f!.
roadside tree; or
treatment that
!!1ill!.
adversely affect the health or growth gf
f!.
roadside tree.
ill
@
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
Applicability; exceptions.
ill
The following activities do not require
f!.
right-or.-way and
roadside tree workpermit:
tAl
cutting or clearing f!.public utility right-or-way or land fOr
an electric generating station licensed under Sections
204, 7-205. 7-207, or 7-208 gf the Public Utilities Article
gfthe Maryland Code, or any successor provision,
it..
ill
any required certificate gfpublic convenience and
necessity has been issued under Section 5-1603(j) gf
the Natural Resources Article gfthe Maryland Code
or any successor provision; and
@
the cutting or clearing is conducted in
fl
way that
minimizes the loss Q[fOrest;
f1Jl
routine maintenance gf
fl
public utility right-or-way. and
cutting or clearing anv tree bv a_ public utility as necessary
to
comply with af2Plicable vegetation
management
requirements or to maintain. repair. replqce. or upgrade
any public utility transmission or distribution line; or
(C)
cutting or clearing
fl
public utility right-or.-way or landfOr
f1
new transmission or distribution line.
152
153
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Bill 41-12
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
f1l
A licensed tree expert need not obtain
f!
permit for work
perfOrmed on:
[Al
f!
tree that is uprooted or truncated because gf
f!
storm or
vehicular collision;
(J1l
f!
tree branch that is broken and contacts
f!
telephone,
cable television, electric power, or other wire carrying
electric current; or
tId
f!
tree or tree branch that
f!
certified arborist or licensed
tree expert finds is endangering
f!
person or property.
ill
A certified arborist or licensed tree expert who provides tree
work under paragraph
m
must. within one week after an action
if
available, and general
if
necessam to the
is taken, give the Department:
[Al
notice gf the property address.
area where the action was taken; and
(J1l
f!
proposed plan to upgrade the work.
tree work standards in this Section and applicable
regulations.
The Department must approve, modify, or reject the proposed
plan, after reviewing the actions taken, within
14
days after
receiving the infOrmation.
If
the Department does not act on the
proposed plan within
14
days. the plan is approved
f2J:.
default.
The Department may require further infOrmation, and
!!Jf!J!.
extend this deadline once for an additional
15
days in
extenuating circumstances. The Director also
!!Jf!J!.
extend this
deadline at the request gfthe applicant.
f2l
Right-or-way and roadside tree work permit required.
FWsILLS\1241 Streets
And Roads-Roadside Trees\Draft
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Bill 41-12
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
(Jl The Department must not issue
fl
building or related permit to an
applicant fOr any demolition. clearing, pre-construction activity,
construction, or development that is likely to result in the
trimming, pruning, root-pruning, cutting, removal, or injury gf
fl
roadside tree unless the applicantfirst obtains
fl
right-of-way and
roadside tree work permitfrom the Department.
al
11&1
Except as provided in subsection
(b)
(1 ).
a right-of-way and
roadside tree work permit is required fOr any tree work on
fl
utility located in
fl
right-of-way, such as a:
fAl
sewer,'
water or gas
J2iJ2!:l.;..
storm drain;
(B)
{{;l
(D) electric, telephone. or television cable or conduit;
(E)
(F)
sidewalk;
driveway;
fJll
sump pump;
(H) gutter outflow line; or
(JJ..
roadway or similar structure.
ill
A person may receive
fl
right-of-way and roadside tree work
permit to pertorm tree work
ifthe
person:
fAl
holds title to the land where the roadside tree is located;
owns property abutting the right-of-way at the point where
the tree is located
fJll
{{;l
is
fl
government agency that has an easement for the
public right-of-way where the tree is located;
(D) is respons ible for providing tree care to the tree; or
(E)
is an authorized a ent gfany gfthese.
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Bill 41-12
207
208
209
210
211
212
213
@
Permit issuance and administration.
m
After receiving an application for g right-of-way and roadside
tree work permit. the Department may meet with the applicant
and conduct an on-site examination
Q.[
the proposed tree work.
m
ill
The Department should consult with the Chief
Q.[
Tree
Maintenance in the Department
Q.[
Transportation regarding any
application under which the applicant would perform tree work.
The Department
!!.!:5JJ!-
issue g permit
if
the applicant shows that
the proposed tree work is necessary to:
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
f&.
flll
{Q
protect the health
Q.[
the tree;
eliminate or reduce g hazard to property, public safety, or .
health;
improve or prevent g deteriorated tree condition;
improve the overall appearance
Q.[
the right-of-way; or
carry out g development which has received all other
applicable development approvals.
(D)
(E)
{11
The Department may issue:
f&.
g permit fOr g specific tree or group
Q.[
trees for specific
tree workfor g term not to exceed
1
year after the permit is
issued; and
flll
g permit for g comprehensive and continuing program
Q.[
general tree work.
m
A permit issued under paragraph
(4)(B)
must specifY the
!J!J2!E§.
Q.[
tree work
i1.
covers, as allowed
!n!.
the license
Q.[
the person who
will supervise the program.
{§l
If
the
Department denies g permit application, the Department
10­
F:\
BlLLS\1241 Streets And Roads-Roadside Trees\Draft 19 T&E Full.Doc
must notifY. the appli@q[the reason.
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Bill 41-12
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
m
The Department may:
.cAl
(B)
modi& any term or condition gf
fI
permit to best achieve
the objectives gfthis Article; or
suspend or revoke
fI
permit
if
the holder violates
fI
condition gfthe permit or fIprovision gfthis Section or the
Natural Resources Article gfthe Maryland Code.
M
Tree work pertormance; inspection; replacement.
m
Each permittee must take all necessary measures to protect
fI
roadside tree from damage during all phases gf clearing,
construction, or development gf
fI
building or other structure,
including installing protective fencing, avoiding soil compaction,
and protecting critical root zones in the right-of-way.
m
A permittee must repair any damage
fI
tree sustains during
construction or development. including any broken limb, root, or
scarred trunk, and any damage caused
b:.
soil compaction.
m
(A)
Before any bond filed with the Department under this
Chapter is released, or (if no bond has been filed) betore
any certificate gf occupancy or similar final approval is
issued,
the Department must inspect each affected
roadside tree to determine, after consulting the Chief gf
Tree Maintenance in the Department gf Transportation,
whether the tree has
fI
reasonable chance gfachieving the
typical maximum age gfg roadside tree in that location.
(B)
!f
the Department does not find that an affected tree has
fI
reasonable chance gf achieving the typical maximum age
gf g roadside tree in that location, or
if
the permittee has
removed
fI
roadside tree, the Department must require the
~
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Bill 41-12
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
{fl
permittee to
I!f!J!.
an amount set
fu::.
regulation into
f!
tree
replacement fund maintained
l2Y.
the Department Q[
Transportation.
{{d
The amount Q[ payment must be set
fu::.
Method
1
regulation; must be proportionate to the cost Q[replacing
each afftcted tree, using
f!
replacement ratio specified
l2Y.
regulation that takes into account the survival rate Q[
newly-planted trees; must be computed according to the
size Q[ the afftcted tree; may consider the species. age,
rarity. and historical value
(jf
any) Q[the affected tree; and
must not be less than
$35
per circumference/inch Q[ the
afftcted tree.
(D)
The permittee must
I!f!J!.
the required amount within 30
days after the Director notifies the permittee that the
pqyment is required. The Director
!!If!J!.
treat any unpaid
funds as
f!
lien on the property where the afftcted tree is
located. and must not issue
f!
certificate Q[ occupancy or
similar final approval for the site until full pqyment is
received.
Use Q[pesticides.
ill
Any permittee who applies
f!
pesticide directly to
f!
roadside tree
must be certified and licensed as required
fu::.
the State
Department Q[ Agriculture, and must comply with applicable
state regulations.
m
Any permittee who applies
f!
pesticide must only use
f!
pesticide
that is registered fOr that use
fu::.
the
u.s.
Environmental
Protection Agency and the State Department Q[Agriculture. Any
Ii2'
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ILLS\1241 Streets And Roads-Roadside Trees\Draft 19 T&E Full.Doc
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Bill 41-12
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
permittee who applies
g
pesticide mustfOllow the manufacturer's
label directions fOr proper use.
[Jl
BefOre applving
g
pesticide.
g
permittee must notifY the
Department
Q[the
approximate time and place
Q[application.
f.1l
Unless the Department directs otherwise,
g
permittee must not
r!:I!l2.lJ!.
an herbicide to
g
tree
if
the tree is §.feet tall or higher.
m
A permittee must remove dead plant material resulting from the
application
Q[
an herbicide
reasons.
if
removal
is necessary fOr safety
@
A permittee must take reasonable precautions in selecting and
applying gpesticide on or near
g
roadside tree to:
(A)
avoid the use
Q[
an herbicide on vegetation that
contributes to soil retention. especially at
g
highway cut or
fill and any other area with
g
steep slope; and
(B)
prevent stream pollution and damage to any adjoining
property.
{gl
Roadside tree planting.
305
306
307
308
309
310
311
ill
Any tree that is planted on
g
public right-ofway must be
Q[
g
species and variety from the recommended County tree list and
must confOrm to the American Standard tor Nursery Stock or
standards that the Director identifies as equivalent.
m
Each roadside tree planting must comply with
g
planting plan
approved
f2J!.
the Department after consulting the Chief
Q[
Tree
Maintenance in the Department
Q[
Transportation. The planting
plan must cover:
312
313
ill
stump removal. including
g
requirement to fill in any
resulting hole;
314
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Bill 41-12
315
316
317
318
319
320
321
322
(JlJ..
size and
~
gjplanting stock;
lId
planting specifications;
(D)
(E)
spacing;
species;
proximity to overhead wires;
care and maintenance; and
any other site consideration.
The County Executive must adopt regulations under
(F)
{Ql
(H)
{bl
Regulations.
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
341
(g)
Method
2.
that are at least as stringent as applicable state roadside tree
standards and requirements. These regulations may speci6'further:
ill
criteriafOr right-or-way and roadside tree work permit issuance;
roadside
tree
work standards
and practices,
including
m
ill
f1l
construction practices that will minimize damage to roadside
trees;
criteria for the use gjpesticides; and
roadside tree planting requirements.,]
The Department must not issue a
Right-o(..wav permit required,
building or related permit to an applicant for any demolition. clearing,
pre-construction activity, construction. or development that is likely to
result in the trimming, pruning. root-pruning, cutting. or removal of. or
injury to.
a
roadside tree unless the applicant obtains a right-of-way
permit from the Department under Section 49-35.
au
APlJlicabilitv,· exceptions.
ill
A person (including a government agency) may receive a right­
of-way permit to perform tree work on a roadside tree if the
person:
(A)
holds title to the land where the roadside tree is located;
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Bill 41-12
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
~
(B)
owns property abutting the right-of-way at the point where
the tree is located;
!kl
CD)
is a government agency that has
an
easement for the public
right-of-way where the tree is located;
is responsible for providing tree care to the tree;
is a public utility; or
LE1
The
is an authorized agent of any ofthese.
following activities are not subject to. this Section (except
subsection (0) and do not require a right-of-way permit:
CA)
cutting or clearing a public utility right-of-way or land for
an electric generating station licensed under Sections 7­
204. 7-205, 7-207. or 7-208 of the Public Utilities Article
of the Maryland Code, or any successor provision, if:
ill
any required certificate of public convenience and
necessity has been issue<.i under Section
5-1603(0
of
the Natural Resources Article of the Maryland Code
or any successor provision; and
(iil the cutting or clearing is conducted in a way that
minimizes the loss of forest;
(B)
routine maintenance o.f a public utility right-of-way. and
cutting or clearing any tree by a public utility as necessary
to
comply with
applicable vegetation management
requirements or to maintain. repair, replace, or upgrade
any public utility transmission or distribution line;
Qf
!kl
cutting or clearing a public utility right-of-way or land for
a new transmission or distribution line.
A licensed tree expert need not obtain a right-of-way
F:~BILLS\1241
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Bill 41-12
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
Rermit for tree work performed on:
ill
(in
a tree that is uprooted or severely damaged because
of a storm or vehicular collision:
a tree branch that is broken and contacts a
telephone. cable television. electric power. or other
wire carrying electric current: or
(iii)
a tree or tree branch that a licensed tree expert finds
immediately endangers a person or property.
au
A licensed tree expert who provides tree work under
subparagraph CA)
mu~t.
within one week after an action is
taken. give the Department:
ill
(ii)
nQtice of the property address.mjf available. and
general area where the action was taken: and
a proposed plan to upgrade the work. if necessary, to
the tree work standards in this Section and
applicable regulations.
The Department . . must approve. modify. or reject the
proposed plan. after reviewing the actions taken. within 14
days after receiving the information. If the Department
does not act on the proposed plan within 14 days. the plan
is approved by gefault.
The Department may require
further information. and
may~xtend
this deadline once for
an additional 15 days in extenuating circumstances. The
Director also may extend this deadline at the request of the
applicant.
(£l
Basis ofpermit.
The Department may issue a right-of-way permit if the
applicant shows that the proposed tree work is necessary to:
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396
397
398
399
400
401
402
403
404
405
406
407
408
409
410
411
ill
ill
ill
ill
ill
protect the health ofthe tree;
eliminate or reduce a hazard to property, public safety, or health;
improve or prevent a deteriorated tree condition;
improve the overall appearance of the right-of-way; or
carry out a development which has received all other applicable
development approvals.
Ull
Tree protection plan.
ill
The Department must not issue a right-of-way permit for tree
work under Section
49-35
until the applicant has submitted, and
the Department has appr-Qved, a site-specific tree protection plan
that requires the applicant to take all necessary measures to
protect. and mInImIZe damage during development to. any
affected roadside tree.
ill
If the advice or consent of any County department in its role as
owner of or otherwise
responsibl~Jor
the care of any tree in a
County right-of-way, is needed or requested before the state
Department QfNatural Resources may act on a permit allowing
tree work on a tree in a County right-of-way. that County
department must not give its advice or consent until the
Department of Permitting Services has approved a tree protection
plan under this subsection, Section 8-26, or Section 19-71.
412
413
414
415
416
417
418
419
420
421
422
ill
The Department must approve or reject each proposed tree
protection plaI! within 30 days after receiving it.
If the
Department does not act on a proposed plan within 30 days. the
plan is approved by default. The Department may require further
information after a proposed plan is
submitt~9.
and may extend
thi
line once for an additional 15 da s to receive an needed
17
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ILLS\1241 Streets And Roads-Roadside Trees\Draft 19 T&E FulLDoc
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Bill 41-12
423
424
425
426
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
448
449
~
information. The Department also may extend this. deadline at
the request of the applicant.
Tree replacement.
ill
Each permittee who removes a roadsideJree in a County right-of­
way must:
CA)
plant a tree from the recommended County tree list in a
County right-of-way, at or near the location of the original
tree, which is suitable to that location. unless the Director
waives this requirement because:
ill
(in
compliance at the particular site would not be
feasible; or
the removed tree was already dead; and
LID
pay an amount into a Street Tree Planting Fund maintained
by the Department of Transportation. unless the removed
tree was already dead, at a rate set by regulation that will
allow the Department of Transportation to plant 2 more
suitable replacement trees. or 3 more replacement trees if
the Director has waived the on-site planting requirement.
at suitable locations in the right-of-way of a public road in
the County.
ill
ill
The permittee must pay the required amotll'lt within 30 days after
the Director notifies the permittee that the payment is required.
The Department of Transportation must use funds in the Street
Tree Planting Fund only to plant trees in the right-of-way of a
public road in the County, and must not use funds received under
this subsection to hire additional County staff or to supplant funds
otherwise appropriated for that purpose.
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Bill 41-12
450
451
452
453
454
455
456
457
458
459
460
ill
Roadside tree planting.
ill
In this Section,
recommended County tree list
means
a
list of
trees approved by the Director after consulting the Department of
Transportation. The list must only include trees that are also on
the State recommended tree list and must include each tree that
the Director identifies
as
suitable for planting on specific sites
and conditions in the right-of-way of a public road in the County.
(2l
Any tree that any person plants on a public right-of-way must be
a species and variety listed on the recommended County tree list
and must conform to the American Standard for Nursery Stock.
(gj
Enforcement.
In
addition to any other procedure or remedy allowed by
461
462
463
464
465
466
467
468
469
470
471
472
473
474
475
476
law, the Director may issue a stop work order to prevent or correct any
violation of this Section or any permit issued or plan approved. under
this Section. Sections 8-20 and 8-22 apply to any stop work order
issued under this Section.
au
Regulations.
The County Executive must adopt regulations under
Method (2) to administer this Section that are at least as stringent as
applicable state roadside tree care standards and requirements. These
regulations may include:
ill
(2l
criteria and procedures to issu.e, deny. modify, suspend, or revoke
permits for work on roadside trees:
tree work standards and practices needed to protect and maintain
roadside trees, including construction practices needed to prevent
or minimize damage to roadside trees; and
ill
supplementary
roadside
tree
planting
requirements . . and
specifications, and criteria and procedllres needed to administer
the Street Tree
Plant~und.
F~
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Bill 41-12
477
478
479
480
Sec.2. Effective
Date.
This Act takes effect on March
1,2014,
and applies
to any pennit applied for under Chapter 8, Chapter
that date.
Approved:
19,
or Section 49-35 on or after
481
482
Nancy Navarro, President, County Council
Date
483
Approved:
484
485
Isiah Leggett, County Executive
Date
486
This is a correct copy o/Council action.
487
488
Linda M. Lauer, Clerk ofthe Council
Date
F~ILLS\I241
Streets And Roads-Roadside Trees\Draft 19 T&E Full.Doc
f2O\
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LEGISLATIVE REQUEST REPORT
Bi1l41-12
streets and Roads
-
Roadside Trees
-
Protection
DESCRIPTION:
Would require certain applicants to obtain a permit for certain
roadside tree activities as part of the existing right-of-way permit that
the Department of Permitting Services issues; would authorize the
Department of Transportation to create a tree replacement fund to
pay for needed roadside trees; and would direct the County Executive
to adopt regulations further specifying roadside tree work standards
Need to better protect and maintain roadside trees in County rights-
of-way. .
To authorize the County to supplement state regulation and
protection of roadside trees.
Departments of Permitting Services, Transportation, Environmental
Protection
To be requested.
To be requested.
To be requested.
To be researched.
Michael Faden, Senior Legislative Attorney, 240-777-7905;
Amanda Mihill, Legislative Attorney, 240-777-7815
.
To be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITIDN
.
MUNICIPALITIES:
PENAL TIES:
Class A.
F:\LA W\BILLS\124I Streets And Roads-Roadside Trees\LegisJative Request ReporlDoc
®
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ROCKVILLE, IvIARYLAND
MEMORANDUM
January 14,2013
TO:
FROM:
Naney Navarro, President,County COllncil
Office of Management and Budget
Jennifer
A.
.
Joseph F. Beach,
~c~~r,
Department
ofFinanc~
Council Bi1l41-12 - Streets and Roads - Roadside Trees - Protection
Htlghe~ector,
SUBJECT:
Please find attached the fiscal impact statement and economic impact statement
for the above-referenced legislation.
.
JAH:dh
c: Kathleen Boucher, Assistant Chief Administrative Officer
Lisa Austin, Offices of the County Executive
Joy Nurmi, Special Assistant to the County Executive
Patrick Lacefield, Director, Public Information Office
Joseph F. Beach, Director, Department of Finance
Michael Coveyou, Department of Finance
. Bob Hoyt, DepartmcntofEnvironmental Protection
Att
Holmes, Deprutment ofTransportation
Diane
Schwartz Jones, Department of Permitting Services
Alex Espinosa, Office of Management and Budget
All1Y
Wilson, Office of Management and Budget
Dennis Hetman, Office of Management
and
Budget
Ayo
Apollon,
Office
ofManag<.!ment
und Budget
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Fiscal Impact Statement .
Council Bill 41-12, Streets and Roads - Roadside Trees - Protection
1. Legislative Summary
The proposed bill requires certain applicants to obtain a permit for certain roadside tree
activities as part of the existing right-of-way permit issued by the Department of
Pennitting Services (DPS); authorizes the Department of Transportation (DOT) to create
a tree replacement fund to pay for needed roadside'trees; and directs the Cotmty
Executive to adopt regulations further specifying roadside tree work standards.
The Department of Pennitting Services will administer the law. The Department of
Transportation's Chief of Tree Maintenance will manage the consultations pertaining to a
recommended county 1!ee list that will include each tree the Departmen.t identifies as
suitable for planting on specific sites and conditions in the right-of-way of a public road.
2.
An
estimate of changes in County revenues and expenditures regardless of whether
the revenues or expenditures are assumed
in
the recommended or approved budget.
Includes source of information, assumptions, and methodologies used..
'" The Department of Pennitting Services (DPS) estimates additional staffing will be
necessary to meet the required reviews and inspections:
III
1 Certified Arborist (Grade 26)
III
.25 Senior Pennitting Services Specialist (Grade 26)
• 2 Senior Permitting Services Inspectors (Grade
23)
II
.30 Senior Permit Technician (Grade 19)
First year expenditures are proj ected at $347,075 consisting of $258,687 in personnel
costs and $88,388 in operating costs of which $71,464 are one-time costs for vehicles and
equipment. DPS estimates the bill will generate an additional 500 permits per year at a
minimum of$135 per permit for projected additional annual revenues of$67,500. DPS
has indicated they can absorb the fractional positions within existing staff.
• The Department of Environmental Protection (DEP) does not anticipate any measurable
fiscal impact from the proposed bill.
• The Department of General Services (DGS) estimates the cost of an average county
project will increase between $2,000 and $12,500 with consultant
costs comprising
an
estimated $1,500 to $5,000 per project and construction costs an estimated $500 to
$7,500 per project. DGS notes it will take several iterations of the proposed projects in
order to accurately project a predictable cost. For the purpose ofthe FYI 5-20 CIP. each
project will be budgeted and scheduled using the high end projections given
implementation ofthe bilL DOS estimates pennit fee costs of$250 to $1,500 per project
and assumes five project starts per year.
\P
The Department of Transportation (DOT) does not anticipate additional costs associated
with the proposed changes. Projects that currently need NRJJFSD and forest
conservation plan (PCP) approval through M-NCPPC will continue to follow the current
permit issuance process andwnrtherefore be exempt from requirements ofthe proposed
bill. Any projects small enough to be covered under the proposed bill of 40,000 square
feet and less will be required to have tree replacement and stump grinding or tree
protection. All of these activities are currently completed on most DOT projects of this
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size. Montgomery County Code;Chapter 49 exempts DOT from the permit process
when conducting routine tree maintenance and emergency tree maintenance
in
the
County right-of-way. Consequently, this bill 'Will
~ave
little or no effect on DOT's tree
maintenance programs.
The proposed bill creates a Tree Replacement Fund for fees collected as a result of tree
distUrbance and as the source of funds to pay for needed roadside trees. DOT would
manage this fund. The tree replacement fund would have additional work hours
attributed to office staff to maintain the fund and to the field operations portion of the
planting program. DOT has a $100,000 annual planting program where the additional
tree planting completed as a consequence ofthe replacement fund can be implemented
into the current program efficiently and with relative ease and negligible costs. With
respect to revenue, DOT has indicated the number ofpayments to the tree :fuD.d cannot be
predicted.
'
.
3. Revenue and expenditure estimates covering at least the next
6
fiscal years.
Ii\)
DPS projects expenditures of $347,075 during year one and $276,331 annually thereafter
for a
SL,,{
year total of $1,728,730. The bilfis estimated to generate an additiona1500
permits per year at a minimum of $135 per permit for proj ected additional annual
'revenues of $67,500 or $405,000 for six years.
DGS estimates the cost of an average county project
will
increase betvveen $2,000 and
$12,500 for a six year total between $12,000 and $75,000. DGS notes it will take several
iterations of the proposed projects
in
order to accurately project a predictable cost.
it
4.
An
actnarial analysis through the entire amortization period for each bill that would,
affect retiree pension or group insurance costs.
Not applicable. The proposed 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 proposed bill requires the County Executive to amend the law regarding streets and
roads and adopt regulations
that
are at least as stringent as applicable state roadside tree
standards and requirements specifying road side tree protection, conservation, and
replacement standards. The County Executive's amendments in addition to potential
state actions may cause expenditures to change on imposed mandatory requirements
particularly ifthe County adopts requirements that are more stringent
thari
statewide
requirements.
6.
An
estimate of the staff time needed to implement the bill.
DPS estimates additional staffing wiU'be necessary to meet the required reviews and
inspections:
.,
.,
1 Certified Arborist (Grade 26)
.25 Senior Permitting Services Specialist (Grade 26)
2 Senior Permitting Services Inspectors (Grade 23)
.30 Senior Permit Technician (Grade 19)
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For the certified arboristjob class the enactment ofthe bill includes an additional 1,550
hours oftime or the equivalent of 1 work year: .
- 150 hours or
1'2
hour per plan for review of roughly
300
existing DNR pennits for tree
removal
- 500 hours or
1'2
hour per plan for review of roughly 1,000 existing ROWand sediment
control pennits that affect critical root zone
- 250-hours or
1'2
hour per plan for review of approximately 500 existing activities not
currently requiring a DPS ROW or sediment control permit such as house additions,
plumbing, and utility activities outside of the right of way
- 300 hours for blanket permits as specified in the proposed bilL
- 250
hours for administration of exceptions as specified in the proposed bill for
emergency work and certain utility work
- 100 hours to work with other agencies on administration, technical support,
construction standards and training
For the:2 senior pemumng inspector positions the enac1111ent ofthe bill includes an
additiona13,050 hours of time for inspeetion staff or the equivalent of2 work years.
- 1,500 hours or. 1.5 additional inspections for roughly 1,000 existing ROWand sediment
control permits that affect critical root zone
- 1,000 hours or 2 inspections per permit for approximately 500 existing activities not
currently requiring a DPS ROW or sediment control permit such as house additions,
plumbing, and utility activities outside of the right ofway
- 3 00 hours for blanket permits
- 250 hours for administration of exceptions for emergency work and certain utility work
7.
An
explanation of how the addition of new staff responsibilities would affect other
duties.
DPS projects the need for 3 additional staff to meet the required number of reviews and
inspections.' DPS will absorb the fractional positions within existing staff.
8. An estimate of costs when an additional appropriation is needed.
No
additional appropriation is required in FY13.
In
FY14 and beyond additional
appropriation will be required to cover estimated costs for DPS ($276,331). Additional
. costs for DGS ($75,000) Vlill be reflected in the cost of CIP projects. Costs will be offset
by increased revenues.
9. A description of any variable that could affect revenue and cost estimates.
Article I, Section 49-35
(b)
states the County Executive must collect a fee for each right­
of-way and roadside tree work pennit. This fee would be set by method 3 regulation and
must be proportionate to the cost of replacing each affected tree using a replacement ratio
specified by regulation that takes into account the survival rate ofnewly planted trees;
must be computed according to the size of the affected tree, may consider the species,
age, rarity, and historical value (if any) ofthe affected tree; and must not be less than $35
per circumference/inch of the affected tree. AIl listed fee calculation variables have a
potential impact on revenue estimates.
The proposed bill also defmes a recommended County list of approved trees.
Any
tree
that is planted on a public right-of-way must be a species and variety from the
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recommended County tree list and must conform to the American Standard for Nursery
Stock. The breadth of criteria for an approved tree
will
affect the volume of permits and
thereby corresponding revenues and cost estimates.
DOT has indicated the number of payments to the tree fund cannot be predicted.
10. Ranges of revenue or expenditures that are uncertain or difficult to project.
See #9
11. If a bill
is
likely to have no IIScal impact, why that is the case.
Not applicable.
12. Otherfiscal impacts or comments.
Not applicable.
13. The following contributed to and concurred with this analysis:
Rick Brush) Department ofPennitting Services;
Donald Scheuerman Jr., Department of General Services;
Stan Edwards, Department of Environmental Protection; .
R. Keith Compton, Department of Transportation;
Brett Linkletter, Department of Transportation;
Amy
Wilso~
Office of Management and Budget;
Dennis Hetman, Office of Management and Budget
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Economic Impact Statement
COImcil
Bill 41-12
Streets and Road, - Rqadside Trees - Protection
Background:
This proposed legislation would:
• require a permit for certain roadside tree activities as part of the existing right-of­
way permit issued by the Department of Pennitting Services (DPS);
• authorize the Department of Transportation (DOT) to create a tree replacement
fund to pay for needed roadside trees;
• direct the County Executive to adopt regulations further specifying roadside tree
work standards;
• amend Chapter 49, Sections 49-35 and 49-36, of the Montgomery County Code;
• require the Department of Permitting Services to administer the law; and
• require the Department of Transportation's Chief of Tree Maintenance to manage
the consultations pertaining to a recommended county tree list that will include
eacli tree the Department identifies as suitable for planting on specific sites and
conditions in the right-of-way of a public road.
1. The sources of information, assumptions, and methodologies used •
.
,
Estimates of permit activity, permit costs, and additional development costs as a
result of the subject legislation per the Departments of Permitting Services,
Transportation, and General Services (see Fiscal Impact Statement).
2. A description of any variable that could affect the economic impact estimates.
The number of projects subject to the new pennitting requirements, the cost of
permit fees, and the additional consultation and construction costs required to .
comply with the terms of the subject legislation and resulting regulations.
3. The Bill's positive or negative effect,
if
any on employment, spending, saving,
investment, incomes, and property values in the County.
.
Based on preliminary estimates of permit costs, additional development costs, and
the number of projects subject to the new permitting requirements, the legislation
is not expected to have a material or quantifiable impact on employment.
spending,.. saving, investment income, or property values in the County.
Development costs may increase based on the legislation because of the permit
fees and the costs of compliance with the legislation. The cost per project will
vary
based on the location, scope, nature, and other circumstances of each project.
However, using the estimate of the potential number of new pennits from DPS
and the range of cost impact per County project by DGS the table below indicates
a range of potentially increased development costs.
Page 1 of2
@
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Economic bnpact Statement
Council Bill 41-12
Streets and Road, - Roadside Trees - Protection
Total Costs Per
Project (including
Low Range
FfighRange
Number of
Penni1S
500
$
.
Permit Fee Total PennitFees Costs Per Project
135
$
135
$
67,500
$
Fees
$
2,000
1,067,500
6,317,500
500
$
67,500
12500
$
4. If a Bill
is
likely to have no economic impact, why is that the case?
See item #3.
5. The following contributed to and concurred
with
this analysis: David Platt and Mike
Coveyou, Finance and Richard Brush, Department of Permitting Services.
~ltor~
Department of Finance
Page 2 of2
@
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SUBTITLE 4. TREES AND FOREST NURSERIES
PART
I.
ROADSIDE TREES
5-401. Definition.
In this subtitle, roadside tree means any tree or shrub growing within the right-of­
way of any public road. [An. Code 1957, art. 66C,
§
359; 1973, 1st Sp. Sess., ch. 4,
§
1;
2009, ch. 289.]
5-402. Powers of Department generally; establishment of State forest nurseries.
The Department may plant trees along the roadsides, make rules and regulations
governing the planting, care for and protect any roadside tree, and establish one or more
State forest nurseries for the propagation of trees for any roadside planting. [An. Code
1957, art. 66C,
§
358; 1973, 1st Sp. Sess., ch. 4,
§
1; 2009, ch. 289.]
5-403. Plans for planting or care of trees.
(a)
Applieation.-
If the governing body or the road supervisors of any county of
the State, the Department of Transportation, the council of any municipality, or any
organization or person applies to the Department to plant, care for, or protect any
roadside tree, the Department shall evaluate the application and inform the applicant
concerning the advisability of the requested planting, care, or protection. If, in the
judgment of the Department, the requested planting, care, or protection is advisable, the
Department shall prepare and submit to the applicant a plan for the same, including an
estimate of the cost.
(b)
Approval and implementation ofplan.-
Any plan to plant, care for, or protect
roadside trees may not become operative until the applicant approves the plan and has
guaranteed to the Department the cost of the work. When the applicant approves a plan
the Department has prepared, and the applicant has guaranteed payment of the cost in a
manner satisfactory to the Department, the Department shall perform, or cause to be
performed, the specified planting, care, or protection of roadside trees.
(c)
Payment ofunexpended balanees.-
The Department, without being requested
as provided in subsection (a) or guaranteed as provided in subsection
(b),
may plant, care
for, and protect roadside trees and pay for the work out of any unexpended balance of the
amount appropriated for the purposes of this subtitle. However, no tree may be planted
under the provisions of this section without the consent and approval of the owner of the
land on which planted.
(d)
More stringent loeallaw allowed.-
Except as provided in subsection (e) of
this section, a county or municipality may adopt a local law or ordinance for the planting,
care, and protection of roadside trees that is more stringent than the requirements of
§§
402 and 5-406 of this subtitle if the local law or ordinance does not conflict with the
provisions of
§§
5-402 and 5-406 of this subtitle.
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(e)
Exceptions.-
A county or municipality may not adopt a local law or ordinance
for the planting, care, and protection of roadside trees that applies to:
(1) The cutting or clearing of public utility rights-of-way or land for electric generating
stations licensed under
§
7-204,
§
7-205,
§
7-207, or
§
7-208 of the Public Utility
Companies Article, provided that:
(i)
Any required certificates of public convenience and necessity have been issued in
accordance with
§
5-1603(f) of this title; and
(ii) The cutting or clearing of the forest is conducted so as to minimize the loss of forest;
(2) The routine maintenance of public utility rights-of-way; and
(3) The cutting or clearing of public utility rights-of-way or land for new transmission or
distribution lines.
(f)
Stop work order.-
A county or municipality that adopts a local law or
ordinance in accordance with subsection (d) of this section may issue a stop work order
against any person that violates any provision of the local law or ordinance. [An. Code
1957, art. 66C,
§§
360-362; 1973, 1st Sp. Sess., ch. 4,
§
1; 2009, ch. 289.]
5-404. Authority of enforcement.
(a)
Forest wardens and others.-
Forest wardens and other persons having police
powers in the State, in addition to their regular duties, shall enforce the law for the care
and protection of roadside trees. In the enforcement of these laws, they possess the same
powers as a peace officer to arrest with a warrant.
(b)
County or municipality.-
The Department may authorize a county or
municipality to enforce
§§
5-402 and 5-406 of this subtitle. [An. Code 1957, art. 66C,
§
363; 1973, 1st Sp. Sess., ch. 4,
§
1; 2009, ch. 289.]
5-405. Payment by Department to forest warden for making required examinations,
planting and care of trees, etc.; reimbursement of Department by applicant for
payments.
For his services in making examinations, as provided in § 5-403 (a) of this
subtitle, the Department shall pay the forest warden upon presentation and approval of his
accounts with vouchers, for services in planting roadside trees, trimming, spraying, or
otherwise caring for existing roadside trees, as provided in
§
5-403 (b) of this subtitle.
The applicant who guarantees the cost of work shall reimburse the Department for the
services of the forest warden and his helpers upon presentation of the forest warden's
accounts with vouchers, and upon the approval of the Department. The applicant shall
pay for the forest warden's services in examining conditions serving as a basis for permits
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applied for under
§
5-406 of this subtitle, for issuing permits, and for supervising work
authorized by the permits. The Department shall determine the rate to be paid under this
section. [An. Code 1957, art. 66C,
§
364; 1973, 1st Sp. Sess., ch. 4,
§
1; 2004, ch. 25,
§
6.]
5-406. Permit to cut down or trim trees; exceptions; prohibited conduct without
permit; penalty.
(a)
Application/or permit required.-
Except as provided in subsection (b) of this
section, any person who desires to cut down or trim any roadside tree shall apply to the
Department for a permit.
(b)
Exceptions.­
(1)
A person may remove a tree or its branches without first obtaining a permit
from the Department if the tree is unrooted or its branches broken so as to contact
telephone, telegraph, electric power, or other wires carrying electric current, or ifthe tree
or its branches endanger persons or property.
(2) A tree may be cut down and removed by an abutting landowner for the
landowner's own use without first obtaining a permit if the tree is standing within the
right-of-way of a public road which has not been surfaced with either stone, shell, gravel,
concrete, brick, asphalt, or other improved surface.
(c)
Prohibited cohduct.-
A person may not cut down, trim, mutilate, or in any
manner injure any roadside tree, except as authorized by this section, without a permit
from the Department.
(d)
Restriction by county or municipality to issue building permit.-
A county or
municipality may not issue a building permit to an applicant for any clearing,
construction, or development that will result in the trimming, cutting, removal, or injury
of a roadside tree until the applicant first obtains a permit from the Department in
accordance with this section.
(e)
Penalty.-
A person who trims, cuts, removes, or injures a roadside tree in
violation of a regulation adopted under
§
5-402 of this subtitle or a permit issued under
this section or who fails to obtain a permit as required by this section is liable for the
imposition of a penalty:
(1)
Not exceeding $2,000 for a first offense; and
(2) Not exceeding $5,000 for a second or subsequent offense.
[An. Code 1957, art. 66C,
§
365; 1973, 1st Sp. Sess., ch. 4,
§
1; 2009, ch. 289.]
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Title 08 DEPARTMENT OF NATURAL
RESOURCES
Subtitle 07 FORESTS AND PARKS
Chapter 02 Roadside Tree Care
Authority: Natural Resources Article, §§5-209 and 5406, Annotated Code of
Maryland
.01 Purpose.
The purpose of these regulations is to implement Natural Resources Article,
§
5-401-5-406,
Annotated Code of Maryland, to ensure the proper care of roadside trees in the interest of
promoting and maintaining healthy trees and safe, unobstructed, and aesthetically pleasing public
roads and rights-of-way .
.02 Definitions.
A. In this chapter, the following terms have the meanings indicated.
B. Terms Defined.
(1) "Director" means Director of the Maryland Forest Service.
(2) "Oripline" is a line extending from the outer reaches of a tree crown vertically to the'
ground.
{3} "Forest Service" means the Maryland Forest Service.
(4) "Licensed tree expert" means a person licensed under Natural Resources Article, §5­
415 et seq., Annotated Code of Maryland.
{5} "Person" includes the State, a county, municipal corporation, or other political
subdivision of the State, or their units, or an individual, receiver, trustee. guardian, executor,
administrator, fiduciary, or representative of any kind, or a partnership, firm, association, public or
private corporation, or other entity.
(6) "Pesticide" means a:
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Roadside Tree Care Regulations
Page 2
(a) Chemical or biological preparation used to kill, inhibit, or regulate growth on
targeted plants, their spores or seed, including:
(i) Herbicides,
(ii) Insecticides,
(iii) Tree growth regulators, and
(iv) Fungicides;
(b) Substance or mixture of substances intended for:
(i) Preventing, destroying, repelling, or mitigating pests,
(ii)
Use as a plant regulator, defoliant, or desiccant, or
(iii)
Use as a spray adjuvant such as a wetting agent or adhesive.
(7) "Public road" means a road the title to which, or the easement for the use of which. is
vested in a public body or governmental agency.
(8) "Recommended tree list" means a list of trees approved by the Forest Service and
those recommended by the Forest Service that are suitable for planting on specific sites and for
specific conditions within the right-of-way of a public road.
(9) "Right-of-way of a public road" means that land the title to which, or an easement for
which, is held by the State, county, or a municipality for use as a public road.
(10) "Roadside tree" or "tree" means a plant that has a woody stem or trunk that grows
all. or in part, within the right-of-way of a public road.
(11) "Roadside tree care expert" means an individual representing a governmental
agency who:
(a) Is designated to supervise that govemment's roadside tree planting and
maintenance operations;
(b) Has passed the Forest Service's examination for Roadside Tree Care
Experts; and
(c) Has been approved by the Forest Service as qualified to supervise that
government's tree care program.
(12) "Tree care" means:
(a) Removal of a roadside tree;
(b) Planting or maintenance, or both, of a roadside tree;
(c) Application of pesticide to a roadside tree; or
(d) Treatment that may affect the health or growth of a roadside tree.
(13) "Tree care crew" means a unit from a public or private entity whose purpose is to
maintain roadside trees as defined in §B(10) of this regulation, characterized by a service truck
and supervised by a licensed tree expert.
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Roadside Tree Care Regulations
Page 3
(14) "Tree care standards" means tree care approved by the Forest Service and in
accordance with the roadside tree care standards set forth in Regulations
.07-.09
of this
chapter.
.02-1 Incorporation by Reference.
A.
In this chapter, the following document is incorporated by reference.
B. Document Incorporated. American Standard for Nursery Stock, ANSI Z60.1-1996, (American
National Standards Institute, Inc. November 6, 1996).
.03 Permit Required.
A.
A person may cut down or prune a roadside tree without a permit if the tree:
(1) Is uprooted or its branches are broken to contact telephone. telegraph, electric power.
or other wires carrying electricity. or if the tree or its branches are an immediate danger to person
or property; or
(2) Stands within the right-ot-way
ot
a public road which has not been surfaced with either
stone. shell. gravel, concrete, brick, asphalt. or other improved surface material, and only it the
tree is cut down and removed by, or at the request of, the abutting landowner for the landowner's
own use.
B. Except as provided in §A of this regulation, a person shall obtain a permit to perform tree care
to a roadside tree.
C. A person providing tree care under §A(1) of this regulation shall inform the Forest Service, by
calling or writing within 1 week of the action taken, of the place or general area where that action
was taken, and provide a proposed plan to upgrade the work, if necessary, to tree care
standards. The Forest Service shall approve, modify, or reject a proposed plan within 2 weeks
after an examination of the work .
.04 Types of Roadside Tree Care Permits.
A.
Roadside tree care permits are of two types:
(1) Permits issued for a specific tree or group of trees for specific tree care operations for
a term not exceeding 1 year from the date of issuance; and
(2) Permits issued for comprehensive and continuing programs of general tree care such
as those administered by State agencies, counties, municipalities, corporations, and public
utilities.
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Roadside Tree Care Regulations
Page 4
B. Permits issued under §A(2) of this regulation are issued only for specified types of tree care,
based upon the skills of those supervising the program.
C. For tree care not authorized in a permit issued under §A(2} of this regulation, a permittee shall
obtain a separate tree care permit.
D. Permits are issued for a calendar year, and may be renewed upon application .
.05 Issuance of Roadside Tree Care Permits.
A. A request for a roadside tree care permit:
(1) May be made by:
(a) A person owning title to the land on which the tree or trees are located,
(b) A governmental entity possessing an easement for the public road right-of­
way in which the tree or trees are located,
(c) A person responsible for providing tree care to the tree or trees,
(d) A person whose property abuts the right-of-way at the point at which the tree
or trees are located,
(e) A public utility, or
(f)
An authorized agent of one of the entities in §A(1 }(a}---(e) of this regulation;
and
(2) Shall be made by an applicant to the appropriate office of the Forest Service.
B. Following a request for a permit, a representative of the Forest Service shall meet with the
applicant and conduct an on-site examination of the proposed tree care.
C. For permits authorizing continued tree care programs under Regulation .04A(2} of this chapter,
an examination is necessary only as specified in the permit. An examination is not required for
the renewal of the permit.
D. The Forest Service may issue a permit for tree care if the applicant shows that the proposed
tree care will meet one of the following conditions:
(1) Eliminate a hazard to property, public safety, or health;
(2) Improve or prevent a deteriorated tree condition; or
(3) Improve the general aesthetic appearance of the right-of-way.
E. Unless exempted by the Forest Service, if a tree is removed it shall be followed by replanting
of a species on the recommended tree list that is suitable to the location.
F. Roadside tree care permits shall specify:
(1) The name and address of the permittee;
(2) The area where the tree care will occur;
(3) The particular tree or trees involved;
(4) The type of tree care permitted;
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Roadside Tree Care Regulations
Page 5
(5) The term of the permit;
(6) Whether supervision of the tree care is required; and
(7) Limitations or conditions on the tree care or planting considered advisable by the
Forest Service.
G. Except for a tree care permit issued to a government agency for which tree care is provided
under the supervision of a roadside tree care expert, the Forest Service shall provide supervision
for the tree care work.
H. If the Forest Service denles a permit, the Forest Service shall notify the applicant of the
reasons for denial within 10 days of receipt of the application for the permit.
I. The Forest Service may:
(1) Modify the terms and conditions of a permit in accordance with provisions and
objectives of the roadside tree care laws and regulations; or
(2) Suspend or cancel a permit for a violation of a:
(a) Condition of the permit. or
(b) Provision of Natural Resources Article, §5-401 et seq., Annotated Code of
Maryland, or implementing regulation.
J.
Request for Hearing.
(1) A person whose request for a roadside tree care permit is denied, or whose roadside
tree care permit is suspended or revoked, has the right to be heard regarding the denial or
suspension or revocation of the permit, after submitting a request in writing not later than 10 days
after the date on which the denial or suspension or revocation notice is served.
(2) The Director shall schedule a hearing within 10 days from receipt of a request and
render a decision within 10 days from the date of the hearing .
.06 Fees.
A. Fees for roadside tree care permits are calculated according to the following schedule:
(1)
If
Forest Service supervision of the proposed tree care is required for a permit under
Regulation .04A(2) of this chapter, the
fee
for issuing the permit, and for supervising work
authorized by the permit, is:
(a) $2,500 per year per tree care crew, or
(b) $250 per month per tree care crew;
(2) The fee for issuing the permit and for supervising work authorized by the permit under
Regulation .04A(1) of this chapter is $25; and
(3) A fee is not required for a tree care permit issued to an applicant that is a government
agency.
B. If a permit request is denied; a
fee
is not required.
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Roadside Tree Care Regulations
Page 6
C. Billing for tree care crews is made either annually or quarterly, at the option of the tree care
crew .
.07 Roadside Tree Care Standards.
A
General Requirements. Unless the Forest Service grants an exception, treatment of roadside
trees authorized by permit shall be performed according to the following standards:
(1) Branches to be removed shall be cut back to a live lateral branch at least
1/3
the
diameter of the severed branch;
(2) Cuts shall be made sufficiently close to the trunk or parent limb without cutting into the
branch collar or leaving a protruding stub;
(3) Proper pruning techniques shall be followed at
all
times;
(4) Except when directed by the Forest Service, pruning cuts shall be left unpainted for
aesthetic reasons;
(5) If the painting of cuts is required, only materials nontoxic to the cambial layer shall be
used;
(6) Dangerous deadwood and broken limbs which are located within the scope of the
work as defined in the permit shall be removed;
(7) Except when authorized by the Forest Service or when the tree is being removed,
climbing hooks or spurs are prohibited;
(8) Chips resulting from roadside tree care may:
(a) Be broadcast on a right-of-way except in ditches, waterways, turf, and
surfaced areas, and
(b) Not exceed 6 inches in depth on the right-of-way;
(9) The wrapping or winding of cable, wires, and other attachments around a tree,
fastening attaqhments to a tree to bruise or injure a tree, or cavity work performed on a tree, is
prohibited; and
(10) When trees are removed, replacement ofthose trees according to a plan may be
required by the Forest Service.
B. Tree Clearance for Overhead Facilities.
(1) In addition to the requirements of §A ofthis regUlation, a person who trims a tree to
provide clearance for utility wires, cables, or other facilities shall:
(a) Allow sufficient clearance for 2 years growth normally expected after
trimming, unless otherwise directed by the Forest Service;
(b) Take into account the health of the tree; and
(c) Make proper cuts that direct growth away from overhead wires and facilities in
compliance with safety standards and government regulations.
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Roadside Tree Care Regulations
Page 7
(2) If a trimmed tree dies within 1 year or is in poor condition of growth as a result of that
trimming, the permittee shall, if required by the Forest Service, remove the tree and plant
replacement trees.
(3) Replacement trees shall be:
(a) Furnished by the permittee;
(b) In good condition;
(c) Of a recommended size and species; and
(d) Properly planted at locations to be determined by the Forest Service.
C.
Ground Disturbance Requirements.
(1) The requirements set forth in this section:
(a) Are intended to protect roadside trees during construction, installation, and
maintenance of a structure requiring excavation;
(b) Apply to underground utilities such as:
(i) Sewers,
(ii) Water and gas pipes,
(iii)
Storm drains,
(iv) ElectriC, telephone, and television cables or conduits,
(v) Sidewalks,
(vi) Driveways, or
(vii) Roadways or similar structures.
(2) A permittee shall take all necessary measures to protect roadside trees from damage
during construction and associated activities.
(3) Damage sustained by a tree, such as broken limbs, roots, or scarred trunks, including
compaction damage, shall be repaired by the permittee .
.(4) The Forest Service shall supervise the measures taken to protect and repair roadside
trees under this section.
D. Protection of Tree Roots.
(1) When an underground project subject to §C of this regulation encounters the roots of
a roadside tree, a permittee, in accordance with the guidelines in §D(2)-(15) of this regulation
or other criteria approved by the Forest Service, shall tunnel or bore under the tree or modify the
project to protect the tree's root system.
(2) For trees under 6 inches in diameter as measured
4112
feet above average ground
level, all machine digging shall stop at the dripline of the tree, or where specified by the Forest
Service.
(3) For trees over 6 inches in diameter as measured 4
1/2
feet above average ground
level, all machine digging shall stop when roots of 1 inch or more in diameter are encountered, or
when specified by the Forest Service.
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Roadside Tree Care Regulations
Page 8
(4) Roots 1 inch or more in diameter may not be cut without approval of the Forest
Service.
(5) A tunnel or other method of modification of the project under or around the tree shall
be used if considered necessary by the Forest Service.
(6) The procedure noted in §D(5) of this regulation also shall be used to approach the
tree from the opposite side.
(7) At least 24 inches of undisturbed earth shall remain over the tunnel or bore, or above
other type of installation.
(8) For operations using shallow trenching techniques up to 12 inches deep, care shall be
taken to minimize root damage and protect the trunk of the tree.
(9) Roots 1 inch or larger, damaged during construction, shall be sawed off close to the
tree side of the ditch. Clean cuts shall be made at all tfmes.
(10) Installations affecting roadside trees shall be completed in as short a time as
possible to prevent the drying out of exposed roots.
(11) If considered necessary, the exposed root area within the ditch shall be watered and
fertilized as directed by the Forest Service.
(12) Tunnels shall be refilled and the soil tamped tightly to original firmness .
. (13) Trenches shall be filled to achieve and maintain original grade.
(14) Excess soil shall be removed from the site or disposed of as directed by the Forest
Service.
(15) Unless otherwise directed by the Forest Service, the ground shall be fertilized and
reseeded, cover shall be restored , and other procedures shall be followed as necessary to
prevent erosion around trees. .
E. Violations of Roadside Tree Standards.
(1) The Forest Service may require a person who fails to comply with §C or D of this
regulation to:
(a) Remove and replace a tree which dies within 1 year after the treatment
activi~y
is completed;
(b) Document for 3 years the condition of a tree which shows decline within 1
year after the treatment activity is completed; and
(c) Remove and replace a tree which dies after 3 years following the completion
of the treatment activity, if the tree has been the subject of the documentation in §E( 1)(b)
of this regulation.
(2) The value of a tree to be replaced is determined as of the date of the violation .
.08 Use of Pesticides.
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Roadside Tree Care Regulations
Page 9
A. The use or application of a pesticide to a tree on a public road right-of-way in the State is
controlled as follows:
(1) A person applying a pesticide to a roadside tree shall have acquired certification and
licensure required by the Maryland Department of Agriculture and shall adhere to regulations in
COMAR 15.05.01;
(2) A person applying a pesticide shall apply only those pesticides registered for that use
by the U.S. Environmental Protection Agency and the Maryland Department of Agriculture, and
shall follow the manufacturer's label directions for proper use;
(3) Before the time of pesticide application, the Forest Service shall be notified by a
permittee of the approximate time and place of application;
(4) Except when authorized by the Forest Service, a tree may not be treated with
herbicides unless it is 6 feet or less in height;
(5) Dead plant material resulting from the application of an herbicide shall be removed if
necessary for aesthetic or safety reasons, or both;
(6) Reasonable precautions shall be taken to:
(a) Avoid the use of herbicides on vegetation which contributes to soil retention,
particularly at highway cuts and fills and other areas with steep slopes, and
(b) Prevent the pollution of streams. and damage to adjoining properties .
.09 Roadside Tree Planting.
A.
Trees to be planted on a public road right-of-way are subject to the conditions in §§B and C of
this regulation, in addition to conditions imposed by local ordinances.
B. Trees shall be of a species and variety from the recommended tree list, and shall conform to
the American Standard for Nursery Stock.
C. Roadside tree planting shall comply with a planting plan approved by the Forest Service, which
may include:
(1) Stump removal;
(2) Size and type of planting stock;
(3) Planting specifications;
(4) Spacing;
(5) Species;
(6) Proximity to overhead wires;
(7) Care and maintenance; and
(8) Other site considerations.
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Roadside Tree Care Regulations
Page 10
.10 Penalties.
Noncompliance with the provisions of this regulation constitutes a violation of law subject to the
penalties provided in Natural Resources Article,
§
5-1301, Annotated Code of Maryland.
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Department of Permitting Services
255 Rockville Pike, 2nd Floor
Rockville, MD 20850-4166
Phone: 311 in Montgomery County or (240) 777-0311
Fax (240)-777-6262
http://www.montgomerycountymd.gov/permit\ingservlces
Affidavit For ResidentiallCommercial Building Permit
Property Address
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Building AP
#(s) _ _ _ _ _ _ __
Demolition
# _ _ _ _ _ _ _ _ _ _ _ _ _ __
To be signed by the PROPERTY OWNER - original signature required
Natural Resources Article Section 5-406(d) provides:
A county or municipality may not issue
a
building permit to an applicant for any clearing, construction, or development that will result in the
trimming, cutting, removal, or injury of
a
roadside tree until the applicant first obtains
a
permit from the
Department
(Maryland State Department of Natural Resources)
in accordance with this section.
I, _ _ _ _ _--:--_ _ _ _ _ _ _ _ _, declare and affirm that: (please choose only ONE)
Property Owner
(please print)
D
D
D
The building permit for which I am applying does not involve any roadside tree(s).
There is (are) a roadside tree(s) located within the area of building permit for which I am
applying, however, the construction will not result in the trimming, cutting, removal, or injury to
the tree(s).
There is (are) a roadside tree(s) located within the area of the building permit for which I am
applying and the clearing, construction, or development will result in the trimming,. cutting,
removal, or injury to the tree(s). I have applied for a Tree Care Permit from the Maryland
Department of Natural Resources and understand that my building permit will not be issued
until a copy of the issued Tree Care Permit is submitted to DPS.
Property Owner Signature
Date
Page 1 of 1 Revised
10/13/2011
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\'\
~
Conservation
Montgomery
TESTIMONY
Regarding MontgomeIJ County Council Bill 41-12,
Streets and Roads -- Roadside Trees - Protection
Delivered to
Montgomery County Council·
by Arlene Bruhn
On behalf of Conservation Montgomery
January 17, 2013
President Navarro and Members of the Council:
I would like to take this opportunity to answer some questions that have arisen regarding
the street tree bill.
First - Why do we need this bill? We already have a State Law.
The State law is not working. The Department of Natural Resources does not have staff to
enforce it. There
is
only one ranger to patrol the whole County.
It
often takes two weeks or
more to get a site inspection.
What makes the County think it can do better?
The County already requires right-of-way permits. Protecting roadside trees
will
be partof
the permit. The County has several inspectors who already enforce right of way permits
and who can investigate quickly.
Next -- But why should the County get involved with trees?
The trees along County roads are significant County assets. They are the backbone of our
green infrastructure. They are essential to our quality of life. They enhance property values.
They attract new residents to the County. These are tough economic times. We know trees
promote retail business and home sales.
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Next -- Will a homeowner still be able to remove the tree
in
front of
his
house? Why
bother replanting? We've got plenty of trees.
There
is
notblng in this bill that prevents a property owner from removing a street tree.
However.
if
he chooses to do so, he
will
be required to contribute to a fund for replanting
nearby.
We require this because we stand at a crossroads with respect to climate change. We face
increasing C02 emissions. More traffic makes our urbanizing areas centers for
air
pollution.
Large expanses of brick and concrete transfonn densely built commercial zones into
unhealthy heat islands. We need trees to stay cool in summer and absorb C02. We need
trees in winter to shelter us from harsh winds. The cheapest way to mitigate climate change
is
to plant trees.
What about property rights?
Please understand: I value independent initiative and self-reliance. But I also value limits
and common sense. Running roughshod over a County street tree is not an inalienable right
granted by our County charter. Our shaded sidewalks and walking paths are cherished
community spaces that bring added value to our neighborhoods. We must sustain our
walkable communities, and it's absolutely right that street trees have the strongest
protections.
Allow me in closing to quote Thomas Jefferson:
''1
am not an advocate for frequent changes in laws ... But laws and institutions must go
hand in hand with the progress of the human mind. As that becomes more developed, more
enlightened, "', new truths discovered ... , institutions must advance ... to keep pace with
the times. We might as well require a man to wear still the coat which fitted
him
when a boy
as civilized society to remain ever under the regimen of
his ...
ancestors." -
Thomas Jefferson
Thank
you,
Respectfully
submitte~
Arlene P. Bruhn
7820 Glenbrook Road
Bethesda, MD 20814
301-986-5927
a.p.bruhn@verizon.net
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From Conservation Montgomery
State Roadside Tree Law and Bill 41-12
Issues and Responses
Introduction:
Bill 41-12 gives Montgomery County control of its street trees - control it currently does
not have. For a fee based on the tree(s) removed, the Bill allows any needed removal of
street trees. The fee would then be used by the County to replant street trees based on
resident demand and County-identified need.
Several questions have surfaced regarding the Bill- the need for it, its utility, and impact.
Below is list of those issues and responses to them.
Issues and Responses:
1. This bill is not needed because the State Roadside Tree Law (RTL) provides adequate
protection for the County's rights-of-way, or street trees.
Maryland's State Forester
has
clearly stated that his office does not have adequate
staff to enforce the RTL. Also, there are many cases of tree damage, destruction
and abuse associated with new home construction and property improvement
projects that have been reported by County residents over the years. The County
needs to
be
responsible stewards of its street trees for the benefit of all county
residents, and it must be realistic in its assessment of how that resource is treated
by those who do not own it.
2. The bill is not needed because the County already has jurisdiction over the street trees
in its rights-of-way.
State law gives State DNR jurisdiction over street trees in Montgomery County,
not Montgomery County itself. The
1914
law does not deny that the trees are a
County asset, but it does assert jurisdiction over them.
In
addition, only the State
has enforcement authority for the Roadside Tree Law through the DNR police.
The
law
and
associated
regulations
may
be
found
at:
http://www.dnr.state.md.us/forests/programapps/newrtlaw.asp
3. The bill is not needed because the RTL already requires builders and developers to
replant street trees if removed.
This is untrue. Replacements may be required at the discretion of the State
Forester, not Montgomery County arborists. Also, when the State Forester does
require a replacement, the ratio is one tree removed for one tree replanted with no
consideration given to the size of the tree removed. (See DNR regulations: Title 8,
Chapter 02, Subsection 07, A., 10)
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For example, the requirement to replace, a large, healthy, mature oak 70 feet in
height would be satisfied by planting a 7-foot-tall maple. The County is clearly
not getting an equal value for an asset lost. This is a good deal for the person
removing the tree, and a very bad deal for Montgomery County.
4. It is alleged that the bill will use fee moneys to hire an arborist to track it, thereby
eliminating any benefit in additional plantings of trees.
There will be little additional staffmg needed. The bill creates a fee-based-system
that requires payment, based on the diameter and/or canopy size of the tree
removed, into the County's planting fund. These moneys would be used to plant
trees under various planting contracts already managed by county staff.
Bill 41-12 will require little if any additional staffing because it is based on a fee
system. If a tree is removed a fee is paid, and with those fees the County plants
street trees -- which it does annually. The planting contract it currently has can
be expanded to plant more trees with little or no impact to staff executing this
contract at present. Contracting costs should also decrease if tree numbers
increase, along with increased satisfaction from County residents who have been
on a list to receive a street tree for months or even years.
In addition, County oversight costs will be reduced. County staff would not be
required to approve developers' choice of trees to replant in the right-of-way, nor
inspect trees for proper planting procedures, inspect them for mortality two years
after planting, nor wrangle with a property owner or developer to get a tree
replanted if
it
dies years after planting.
5. The bill will create duplicative and confusing permitting requirements for those who
need to remove a County-owned street tree.
The bill is as stringent or more stringent than the R TL, and as such, DPS would be
able to get a blanket permit from DNR to place all permitting authority for street
tree removals and plantings within existing County processes, thereby
streamlining the permitting process.
Regulations regarding removal of trees along State rights-of-way and along rural
road rights-of-way/easements however, would remain unchanged. This bill
impacts only street trees within County-owned rights-of-way.
6. Most builders comply with the RTL, therefore no additional laws are required.
For builders (or anyone else) complying with the existing RTL, this Bill will have
minimal impact. The required County permit will be subsumed under the County
right-of-way permit that is already required. The principal modification is that the
2
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process for replacements is streamlined.
formula for canopy replacement.
It
is a fee-based system and a fair
7. County DPS already requires tree protection, therefore, a new law is not needed.
DPS requirements for tree protections are guidelines and therefore unenforceable.
While some builders comply with these guidelines, others do not. This law will
rectify this problem and will not impact persons already complying with tree
protection standards.
8. Fees will have to be paid to remove hazardous trees that may be dead or dying.
The bill does not require a permitee to pay for the removal of a hazardous tree.
9. Homeowners will be required to get a permit to care for a roadside tree, e.g., to mulch
it, to apply anti-gypsy moth tape, etc., even to water it.
When the County plants a street tree they do so only with the permission of the
adjacent homeowner, with the hope that that homeowner will water and care for
that tree until it becomes established. The County would be hard pressed to
prevail in any actions against homeowners who properly care for their street trees.
10. This bill will restrict adjacent property owners in the Agricultural District who need
to clear the road rights of way for passage of farm equipment.
Funding needs to be restored for proper roadside vegetation maintenance. The
goal would be to ensure that any roadside tree removal is indeed necessary for
farming.
Most trees along agricultural district roads would not be subject to this law. For
those that are, the goal would be to ensure that any roadside tree removal is
indeed necessary for the clearance of moving farm equipment from place to place,
or for fanning the adjacent lands.
11.
Volunteer (trash) trees in the rights-of-way will make enforcement impractical.
The Bill is intended to protect and replace County-planted trees and those planted
by permit. While some volunteer trees may grow into a desirable street tree, many
do not, and a visit by a County arborist may be needed to make that
determination.
3
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13
'.
TESTIMONY OF MARK BUSCAINO
41-12:
ROADSIDE TREES- PROTECTION
JANUARY
17,2013
My name is Mark Buscaino, a County resident" Executive Director of Casey Trees and a
professional arborist. I'm testifying in support of Bill 41-12
Montgomery County's residents value their street trees. They provide numerous
benefits we know about - such as cooling and stormwater mitigation - and some we
don't - such as
increa~ing
the life of asphalt roadways. Bill 41-12 is designed to ensure
the County's street trees remain plentiful by:
'
1) Establishing a "pay to play" system where street trees maY,be
removed
so long
as the appropriate fee is paid;
,2) Placing the responsibility for replanting trees with the County, and;
, 3) ReqIJiring a sensible number of replacements for trees
removed.
1) Pay to Play:
This bill
does not
eliminate one's ability to remove a tree to build a home, construct
a driveway, etc. It allows tree removal so long as the required fee is paid into the
County's tree replacement fund. Trlis
pay
to
play
mechanism was adopted in
response to concerns that the bill would make it impossible to
remove
a tree, or
onerous from a permitting standpoint. While imperfect in that trees are riottruly
"protected" as the Bill's title suggests, it is perhaps the best way to
give
flexibility for
'
tree removals while ensuring that trees
removed
will be replaced. ,
2) Replanting decisions placed with the County
Currently, when someone removes a street tree they can plant the replacement tree,
,themselves. This requires County staff to choose or approve the tree species and
location, inspect the tree after it's planted - and if it dies..,. try to get the person to
replaht it which may require a bond. This system is costly, inefficient, and a poor
use of taxpayer dollars. Washington DC has tried the same system now for10
years and it has failed.
'
'
Bill 41-12 simplifies this by collecting a fee which the County uses to plant street
trees based on its own identification of need or resident requests. This reduces staff
time and cost per tree planted, and is far more efficient. It takes the County out of
the equation by creating a simple transaction (remove the tree, pay a fee) that is
finite, understandable and streamlined.
CaseyTre~s®
WASHINGTON DC,
3030 12th Street NE ,W DC 20017
202.833.4010· f202.833.4092· caseytrees.org
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TESTIMONYOF MARK BUSCAINO
. BILLS 41-12
JANUARY 17, 2013
PAGE.2 OF 3
Furthermore, this is an equitable system where the County 'responds to resident
. street tree planting requests on a first-come, first-served basis. This ensures that
people who really want a street tree get one, which is a good County investment
because those people will water and care for that tree, ensuring its survival.
If the person or developer removing the street tree wishes to replant, the County
would allow it after review of location and tree type, but this would not reduce the
required fee. The County would, however, if requested by the
property owner,
add
their request to the others received by ,residents county-wide. This eliminates the
inequity of allowing someone who removes a large tree from getting a repl.acement
quicker than someone who has been on the waiting list for months or perhaps years.
It also eliminates the conflict created when a developer plants a tree with County
dollars which ultimately may not be wanted by the person who purchases the lot.
Finally,.and perhaps most important, developers have clearly stated that they want a
simple systf3m minimizing County involvement because time is money. However,
when developers use tree removal fees to replant right-of-way trees the system
slows down. The County must approve the tree, its location, and the County must
follow up to ensure. the tree is planted according to the agreement - which should
require a bond - yet another step and more costs .. Better the developer plants trees
within the property itself with their own resources eliminating County involvement
altogether.
3) Replacement formula
Cu rrently, removal of a 30 inch diameter tree -or any tree - requires one tree to be.
planted in its place. This is bad deal for the County, unfair to residents who benefit·
from that stre.et tree, and; it provides absolutely no disincentive to removing trees
. when alternative solutions exist.
.
Using the 30" diameter tree as an example, the proposed legislation mandates
payment into the fund which would allow the county to plant 12 trees instead of one.·
If that seems like a lot, consider the size of the trees planted and removed in the
.illustration shown on Attachment 1.
As the illustration shows, even this replacement formula does not truly "replace"
what the County has lost, and furthermore this replacement scenario does not take
into account time.
Very few street trees survive the
60-70
years needed to reach .
a
diameter of
30
inches. In
DC,
only
5%
of the city's
130,000
street trees are
30
inches in diameter or greater.
Using this as a guide, growing another 30" diameter
tree might well take
more than
12 replacements. And, one must also consider the
time lost in accrued benefits when that 30" diameter tree is removed and those
planted to replace it reach 30" - if they ever reach it at all.
My last comment deals with concerns about "double-permitting" with
MD~DNR
State
Permits. The State does not have adequate staff to review and address street tree
removals, and this bill equals or exceeds State requirements. If passed, therefore, the
County could obtain a blanket permit from the State, essentially acting as their agent,
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TESTIMONY OF MARK BUSCAINO
BILLS 41-12
JANUARY 17,2013
PAGE
30F 3
eliminating the dual State-County permit process. The State should have no objection
because again, the County's requirements are equal or greater than what the State
requires, and agaih, the State has inadequate staff to enforce/monitor.
Conclusion
Bill 41-12 makes sense.
It
protects a County resource that is beloved
by
its residents,
but does not eliminate one's ability to remove a County-owned tree if it must go. When a
tree does need to be removed, it requires fee be paid that will ensure the County can
plant a reasonable number of replacement trees to make up for tree canopy lost. And,
when replanting, the County would do so inan efficient and effective manner that
responds equitably to resident street tree planting requests on a first-come, first-served
basis.
a
I urge you to pass this bill, and thank you for the opportunity to testify.
,
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Attachment 1:
Tree Replacement Scenario
Bill 41-12
47" CIrcumference
Existing Tree:
63" Circumference
Replacements:
8
Trees;
4.7" Circumference Each
8
Trees;
4.7" Circumference Each
ExIsting
Tree:
79"
Circumference
Replacements;
10
Trees;
4.
7" Circumference Each
Existing Tree:
94"
Circumference
Replacements:
12 Treesj
4.7" Circumference Each
Rgure Drawn to Scale
Author: MK Potts, Casey Trees
Date: January 2013
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MARYl.ANO~NA'T1C)NAI..
CA.PrT
AL
BUILDING JNCl,1STFIV ASSOCIATION
alA
Testimony
January 17, 2013
Bill 35-12 Canopy Tree Bill
Bill 41-12 Roadside Tree Bill
Let us take a moment to recognize the process that these bills followed to get to where we are today
and what that may tell us. Taking the bills one at a time, first, the Roadside Tree Bill:
Some in the environmental community report trees in the right-of-way, owned by the County, may be
disturbed, damaged or removed without proper consideration. Council Members Berliner and Eirich
sought insight from County staff and invited both the environmental community and the building
community in for discussion. The dialogue continues even to this day. In spite of everyone's best effort,
however, there remains a disconnect. We cannot agree that a real problem exists. It seems every
instance brought to our attention of a roadside tree problem involved a utility or the County and not a
builder. Is there a problem with builders? This is like the famous Groucho Marx line "Who are you going
to believe, me or your lying eyes?"
Well our "lying eyes" see the following:
1.
Builders have to obtain a DNR permit to disturb a tree in the Right-of-way that says, on the
permit, that the applicant must get permission from the owner of the right-of-way to disturb the
tree, the permit does not grant that right.
2. If we want to remove a tree, we are required to consult with a licensed tree expert and replace
trees removed and meet with the State Forester
3. The right-of-way and the trees are owned by the County
4. If we need to disturb the right-of-way we have to get a right-of-way permit from the County and
an Erosion and Sediment Control permit.
5. If we want to build a house, we have to get a building permit
6. On the building permit is a check-off that we have complied with the DNR permit.
7. We are required further to include an affidavit that we comply with the DNR permit.
8. If a R-O-W permit is required, we meet with the DPS inspector on-site to before we can proceed
9. DPS inspects the site numerous times to make sure we comply with our permits and before any
R-O-W bond can be released
If there are problems of compliance, DPS can identify the problem and seek corrective action before
they issue a final inspection.
We are told, through hearsay, that the State believes they do not have the manpower to enforce the
State law. Our experience tells us otherwise. But ifthat were true, the County still owns the tree, grants
the R-O-W permit, grants the Sediment Control Permit, grants the Building Permit, inspects the site,
grants the final inspection, releases any bonds and issues a U&O permit. And of course we are back to
the first question, is there really a problem with builders?
We find the argument that the County should have the right to regulate its trees com pelling. If the bill
only moved the permit from the State to the County; no problem. However, in addition to ADDING a
new permit process (since they cannot eliminate the State Permit), this bill adds an application fee, a
tree removal fee, a tree replacement fee and protection for tree canopy on private property (though I
understand this clause will be removed). Easily many thousands of dollars. Instead of the builder havinb
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responsibility to plant a replacement tree, the County takes over that responsibility. Well we already
know what are "lying eyes" can see concerning the maintenance and replacement of County street
trees, and it's not good. So we would have to explain to our buyer why their street tree remains
unplanted.
This is a law that serves no appreciable purpose.
As to the Canopy Bill, we have been working over two years with Conservation Montgomery and DEP to
consider the best way to preserve and replace canopy within the urbanized parts of the County. This bill
unfortunately does not reflect any element of agreement with us and I do not think it addressed the
objectives of the environmental community. This bill comes down to a tax on disturbing any canopy
(not trees, just the ground under the tree canopy) on any lot for any reason with no opportunity to
mitigate on-site or off-site. You can avoid the disturbance (by not building) or pay the tax. If you have
no trees on your property, there is no tax. If you have trees on your property, well ... there may be an
incentive to change that because you will have to pay a fee to work under the canopy, even, by the way,
if the canopy is on your neighbors property or in the R-O-W.
Unfortunately,for the homeowner and the builder, there is no real opportunity to avoid the tax since
most of the disturbance occurs to meet County requirements for 100% storm water storage on-site,
setback requirements, utility requirements, etc. Fortunately for the County, builders prefer to save
trees to avoid the cost of removing mature trees, unless they are dangerous and should be removed,
and homeowners like to plant trees. So even without this bill, the County may be getting more tree
canopy over the long run.
If you want to charge a canopy Impact Tax, weiliefs see if we can agree on an appropriate amount.
Otherwise, please reject this bill.
Thank You.
5. Robert Kaufman
Director of Government Affairs
MNCBIA
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MONTGOMERY COUNTY FARM BUREAU
24110 Laytonsville Road
Gaithersburg. Maryland 20882
301 253-1501
January 8, 2013
The Honorable lsiah Leggett
Montgomery County Executive
101 Monroe Street
Rockville Maryland, 20850
Dear County Executive Leggett:
RE:Bill41-12 Streets and Roads-Roadside
Trees-Protections
On behalf of the Montgomery County Farm Bureau-MCFB Board of Directors we are
submitting our comments regarding Bill 41·12 Streets and Roads-Roadside Trees­
Protections. The MCFB cannot support this Bill 41-12 unless
it
is amended as outlined in
this letter to address the needs of the agricultural community in Montgomery County.
The MCFB was very encouraged by the trimming ofroadside trees that the Department
ofTransportation-DOT completed during the summer of2012. Many County farmers
have provided positive comments regarding the trimming that was done on several rural
roads. Many rural and rustic roads are still in need of tree trimming to insure the safe
movement of vehicles and farm equipment. The Department of Transportation staff
should be commended for the good work they did last year and the MCFB encourages the
DOT to continue these tree trimming efforts this year 2013. Unfortunately it appears the
DOT efforts for trimming roadside trees will be negatively impacted by the Bill 41-12.
It is our understanding that the Department of Permitting Services will issue the Right-of­
way and roadside tree work permit. The MCFB thinks this means that if the DOT plans
to conduct tree trimming again in 2013 the DOT will need to obtain a permit from the
DPS before any tree work can be done. This outcome does not make any sense to us and
we strongly oppose this requirement if this represents the correct reading ofBil141-12.
We understand the Bi1l41-12 will require a Right-of-way and roadside tree work permit
for performing any tree work on any roadside tree. The MCFB understands that an
exception is proposed
in
the Bill 41-12 for cutting or clearing a public utility right-of-way
or land and this exemption includes routine maintenance. The MCFB is concerned that
Bill 41-12 appears to prevent the type oftrimming of roadside trees done last year by the
DOT as discussed above unless DOT obtains the permit from the DPS.
The MCFB respectfully recommends the Bill 41-12 be amended so that tree cutting,
clearing. and routine maintenance on all public rights-of-ways
CAll
public roads whether
they are
In
Fee or Prescriptive rights-of-ways) and all agriculturally assessed properties
needs to be added into the Exceptions section ofthe Bill 41-12.
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During the County Council public hearing on June 12,2012 regarding the withdrawn Bill
16-12, Council member Nancy Floreen acknowledged that the rural and rustic roads in
the Agricultural Reserve are very different from the types of roads down county and
therefore, the rural and rustic roads should be looked at differently for the purposes of
tree trimming and routine maintenance. The MCFB strongly agrees with Council
member Nancy Floreen and the amendments listed above attempts to address what
Council member Nancy Floreen was advocating last year.
Thank you for considering the views of the Montgomery County Fann Bureau regarding
Bill
41-12.
Respectfully Submitted,
Lonnie Luther, President of Montgomery County Farm Bureau
Cc: County Council Members
Arthur Holmes, Director, DOT
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/
Montgomery Soil
Conservation District
18410 Muncaster Road - Derwood. MD 20855 - Phone (301) 590-2855
w#w.montgomeryscd.org
t\
January
The Honorable Nancy Navarro
.
Montgomery County Council President
100 Maryland Avenue
Rockville, MD 209050
17~
2013
Re:
Bill 41-12, Streets and Roads - Roadside Trees - Protection and
Bill 35-12 Trees - Tree Canopy Conservation
. Dear Council President Navarro and Council Members:
On behalf of the Montgomery Soil Conservation District (1v1SCD) I would like to thank you for the
opportunity to provide comments on Bill 41-12 and Bill 35-12. As farmers and landowners in the
Agricultural Reserve; we would like to express our concerns about roadside tree maintenance and the
challenges trees present for the agricultural community;
I would first like to mention the observations made by Council Member Floreen during our. last
discussion regarding a tree bill. Back in June 2012 when we met to discuss Bill 16-12, Council Member '
Floreen pointed out that our urban and rural sections of the County have distinct and critical differences
regarding tree management issues. While we all· acknowledge the values that trees provide, we also
recognize that the i.rl,tended purpose of the Agricultural Reserve is to produce the food and fiber needed by
a growing population. As in June, the Montgomery Soil Conservation District opposes these bills as they
pertain to the niral areas of the County, and respectfully requests that the County Council provide
exemptions to these bills for the agricultural community.
The lack of maintenance on roadside trees in the rural areas of the county has become a serious concern.
Gritical public sat'ety issues and economic impacts created by unmanaged roadside trees continue to be
ignored. I have provided along with my testimony several pictures of an incident that occurred Tuesday
on Travilah Road. Problems like this exist throughout the county and they are dangerous and costly.
As our rural roads continue to become commuter routes, the volume of traffic combined with
overhanging, unmanaged branches has created a hazardous situation throughout the county. Many of the
trees along our rural roads represent an accident waiting to happen, and the only question is whether
it
will impact farm equipment, emergency vehicles, a school bus, or some other county citizen.
Ask any farmer in this cOUnty about tree maintenance along the roads and you will begin to understand
the problems farmers experience with poorly maintained roadside trees:
• Constant and expensive damage to all farm equipment on both the roadways and on the field side
where overgrown trees impede planting and harvesting.
.
• Lost production due to shading and moisture impacts of roadside trees.
All District seNices are offered on
a
nondiscriminatory