T&EITEM2
January 28, 2013
Worksession
MEMORANDUM
TO:
FROM:
Transportation, Infrastructure, Energy & Environment Committee
~~Michael
Faden, Senior Legislative Attorney
Amanda Mihill, Legislative
Attorne~1Yc),drJJO
SUBJECT:
Worksession:
Bill 35-12, Trees - Tree Canopy Conservation
Bill 33-12, Trees - Tree Canopy Conservation, sponsored by the Council President at the
request of the County Executive, was introduced on November 27, 2012. A public hearing was
held on January 17,2013, along with Bill 41-12 (see selected testimony, ©29-54).
Bill 35-12 would:
• save, maintain, and establish tree canopy for the benefit of County residents and
future generations;
• maximize tree canopy retention and establishment;
• establish procedures, standards, and requirements to minimize the loss and
disturbance of tree canopy as a result of development;
• provide for mitigation when tree canopy is lost or disturbed;
• establish a fund for tree canopy conservation projects, including plantings of
individual trees, groups of trees, or forests, on private and public property; and
• generally revise County law regarding tree canopy conservation.
At this worksession Executive branch staff will present an overview of Bill 35-12 and the
issues it raises, and will answer Committee members' questions. The Committee is not expected
to take any further action on this Bill at this worksession. A second Committee worksession is
tentatively scheduled for February 25 at 9:30 a.m.
This packet contains:
Bill 35-12
Legislative Request Report
Memo from County Executive
Fiscal and Economic Impact Statement
Selected testimony
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Bill No.
35-12
Concerning: Trees - Tree Canopy
Conservation
Draft No. 1
Revised:
10/25/2012
Introduced:
November 27, 2012
Expires:
May 27, 2014
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _--:-:-_ _ _ _ _ __
Sunset Date: -.:..:.No:.:n::'-"e":---::-_ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President at the Request ofthe County Executive
AN
ACT to:
(1)
(2)
(3)
(4)
(5)
(6)
save, maintain, and establish tree canopy for the benefit of County residents and
future generations;
maximize tree canopy retention and establishment;
establish procedures, standards, and requirements to mlnImlZe the loss and
disturbance of tree canopy as a result of development;
provide for mitigation when tree canopy is lost or disturbed;
establish a fund for tree canopy conservation projects, including plantings of
individual trees, groups of trees, or forests, on private and public property; and
generally revise County law regarding tree canopy conservation.
By adding
Montgomery County Code
Chapter 55, Tree Canopy Conservation
Sections 55-1, 55-2, 55-3, 55-4, 55-5, 55-6, 55-7, 55-8, 55-9, 55-10, 55-11, 55-12, 55-13 and
55-14.
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 unaffected by bilL
The County Council for Montgomery County, Maryland approves the following
Act:
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BILL No. 35-12
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Sec. 1. Chapter 55 is added as follows:
Article 1. Purpose and General Provisions.
55-1. Short title.
This Chapter may be cited as the Montgomery County Tree Canopy
Conservation Law.
55-2. Findings and purpose.
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Findings.
The County Council finds that trees and tree canopy
constitute important natural resources. Trees filter groundwater,
_
reduce
surface runoff, help alleviate flooding, and supply necessary
habitat for wildlife. They cleanse the air, offset the heat island effects
of urban development, and reduce energy needs. They improve the
quality of life in communities
Qy
providing for recreation,
compatibility between different land uses, and aesthetic appeal. The
Council finds that tree and tree canopy loss as
~
result of development
and other land disturbing activities is
~
serious problem in the County.
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{Q)
Purpose.
The purposes of this Chapter are to:
ill
ill
ill
save, maintain, and establish tree canopy for the benefit of
County residents and future generations;
maximize tree canopy retention and establishment;
establish procedures, standards, and requirements to minimize
the loss and disturbance of tree canopy as
development;
~
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result of
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provide for mitigation when tree canopy is lost or disturbed;
and
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BILL
No. 35-12
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ill
establish
f!
fund for tree canopy conservation projects, including
plantings of individual trees, groups of trees, or forests, on
private and public property.
27
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29
55-3. Definitions.
In this Chapter, the following terms have the meanings indicated:
Critical Root Zone
means the minimum area beneath
f!
tree. The critical
root zone is typically represented
Qy
f!
concentric circle centering on the tree
trunk with
f!
radius equal in feet to 1.5 times the number of inches of the
trunk diameter.
Development plan
means
f!
plan or an amendment to
f!
plan approved under
Division 59-D-1 of Chapter 59.
Director of Environmental Protection
means the Director of the
Department of Environmental Protection or the Director's designee.
Director of Permitting Services
means the Director of the Department of
Permitting Services or the Director's designee.
Forest conservation plan
means
f!
plan approved under Chapter
22A.
Forest stand delineation
means the collection and presentation of data on
the existing vegetation on
f!
site proposed for development or land disturbing
activities.
Land disturbin2 activity
means any earth movement or land change which
may result in soil erosion from water or wind or the movement of sediment
into County waters or onto County lands, including tilling, clearing, grading,
excavating, stripping, stockpiling, filling, and related activities, and covering
land with an impermeable material.
Limits of disturbance
means a clearly designated area
disturbance is planned to occur.
In
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which land
50
CD
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BILL
No. 35-12
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Limits of tree canopy disturbance
means all areas within the limits of
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disturbance where tree canopy or forest exists.
Lot
means
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tract of land, the boundaries of which have been established
by
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55
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subdivision of
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larger parcel, and which will not be the subject of further
subdivision, as defined
by
Section 50-1, without an approved forest stand
delineation and forest conservation plan.
Mandatory referral
means the required review
by
the Planning Board of
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projects or activities to be undertaken
by
government agencies or private and
public utilities under Section 20-302 of the Land Use Article of the
Maryland Code.
Natural resources inventory
means
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collection and presentation of data on
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the existing natural and environmental infonnation on
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site and the
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surrounding area proposed for development and land disturbing activities.
Person
means;
.cru
To the extent allowed
by
law, any agency or instrument of the federal
government, the state, any county, municipality, or other political
subdivision of the state, or any of their units;
®
1.£}
An individual, receiver, trustee, guardian, executor, administrator,
fiduciary, or representative of any kind;
Any partnership, finn, common ownership community or other
homeowners' association, public or private corporation, or any of their
affiliates or subsidiaries; or
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Any other entity.·
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Planning Board
means the Montgomery County Planning Board of the
Maryland-National Capital Park and Planning Commission, or the Planning
Board's designee.
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No. 35-12
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Planning Director
means the Director of the Montgomery County Planning
Department or the Director's designee.
Preliminary plan of subdivision
means
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plan for
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proposed subdivision
or resubdivision prepared and submitted for approval
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the Planning Board
under Chapter 50 before preparation of
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subdivision plat.
Project plan
means
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plan or an amendment to
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plan approved under
Division 59-D-2 of Chapter 59.
Public utility
means any water company, sewage disposal company, electric
company, gas company, telephone company, or cable service provider.
Quafified professional
means
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licensed forester, licensed landscape
architect, or other qualified professional who meets all of the requirements
under Section 08.19.06.01A of the Code of Mmland Regulations or any
successor regulation.
Retention
means the deliberate holding and protecting of existing trees and
forests on the site.
Sediment control permit
means
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permit required to be obtained for certain
land disturbing activities under Chapter 19.
Site
means any tract, lot, or parcel of land, or combination of tracts, lots, or
parcels of land, under
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single ownership, or contiguous and under diverse
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ownership, where development is performed as part of
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unit, subdivision, or
project.
Site plan
means
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plan or an amendment to
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plan approved under Division
59-D-3 of Chapter 59.
Special exception
means
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use approved under Article 59-0 of Chapter 59.
Subwatershed
means the total drainage area contributing runoff to
point, and generally refers to the 8-digit hydrologic unit codes.
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single
(D
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No. 35-12
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Technical Manual
means
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detailed guidance document adopted under
Section 55-13 and used to administer this Chapter.
Tree
means
large, woody plant having one or several self-supporting
~
stems or trunks and numerous branches that can grow to
20 feet at maturity.
Tree
includes the critical root zone.
height of at least
Tree canopy
means the area of one or many crowns of the trees on
including trees in forested areas.
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site
Tree Canopy Conservation Fund
means
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special fund maintained
J2y
the
III
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County to be used as specified in Section 55-14.
Tree-canopy cover
means the combined area of the crowns of all trees on the
site, including trees in forested areas.
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Tree canopy cover layer
means the Geographic Information System (GIS)
layer, or shape file, that contains polygons outlining the aerial extent of tree
canopy in the County or any portion of the County.
55-4.
Applicability.
Except as otherwise provided under Section 55-5, this Chapter applies to any
person required
J2y
law to obtain
~
sediment control permit.
55-5.
Exemptions.
This Chapter does not
illmlY
to:
(ill
any tree nursery activity performed with an approved Soil Conservation
and Water Quality Plan as defined in Section 19-48;
®
any commercial logging or timber harvesting operation with an
approved exemption from the requirements under Article II of Chapter
22J\;
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cutting or clearing trees in
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public utility right-of-way for the
construction or modification of electric generation facilities approved
under the Maryland Code Public Utilities Article if:
(1)
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BILL No. 35-12
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the person cutting or clearing the trees has obtained
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certificate
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of public convenience and necessity required under Sections 7­
207 and 7-208 of the Public Utilities Article; and
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the cutting or clearing of forest or tree canopy is conducted so as
to minimize the loss of both;
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routine maintenance or emergency repairs of any facility located in
public utility rights-of-way;
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routine or emergency maintenance of an existing stormwater
management facility, including an existing access road, if the person
- performing the maintenance has obtained all required permits;
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(g}
any stream restoration project if the person performing the work has
obtained all necessary permits;
the cutting or clearing any tree
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an existing airport currently operating
with all applicable permits to comply with applicable provisions of any
federal law or regulation governing the obstruction of navigable
airspace if the Federal Aviation Administration has determined that the
trees create
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hazard to aviation;
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cutting or clearing any tree to comply with applicable provisions of any
federal, state, or local law governing the safety of dams; or
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any non-coal surface mining conducted in accordance with applicable
state law.
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Article 2. Tree Canopy Conservation Requirements, Procedures, and
Approvals.
55-6. Tree Canopy
=
General.
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Submissions.
A person that is subject to this Chapter must submit to
either the Director of Permitting Services or the Planning Director the
following information on the amount of disturbance of tree canopy.
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BILL NO. 35-12
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Any person required
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law to obtain
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sediment control permit
for land disturbing activity that is not subject to Chapter 22A
must submit
S!
limits of tree canopy disturbance concurrently with
the sediment control permit application to the Director of
Permitting Services under Section 55-7.
ill
Any person engaging in activity that is subject to Chapter 22A
must submit
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limits of tree canopy disturbance concurrently with
any other plan required under Chapter 22A to the Planning
Director under Section 55-8.
au -
Timing
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submissions.
The person must submit the limits of tree
canopy disturbance for review in conjunction with the review process
for
S!
sediment control permit, forest conservation plan, development
plan, project plan, preliminary plan of subdivision, site plan, special
exception, or mandatory referral.
If
S!
natural resources inventory/forest
stand delineation is required, the person must include the aerial extent of
the . tree canopy with the natural resources inventory/forest stand
delineation as specified in Section 22A-1 O.
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Incomplete submissions.
The Director of Permitting Services or the
Planning Director must not approve an incomplete submission.
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Review
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submissions.
Each submission required under this Chapter
must be reviewed concurrently with the review of any submission
required under Article! of Chapter 19 or Chapter 22A.
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Coordination
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review.
The Director of Permitting Services and the
Planning Director may coordinate the review of any information
submitted under subsection {ill with other agencies as appropriate. The
reviews may be performed concurrently, and in accordance with, any
review coordination required under Chapter 19 or Chapter 22A.
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BILL No.
35-12
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Time frame
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validity.
An
approved limits of tree canopy disturbance
submission remains valid for:
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not more than
2
years unless the Planning Director has approved
either
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final forest conservation plan or preliminary forest
conservation plan that includes the limits of tree canopy
disturbance;
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not more than
2
years unless
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sediment control permit has been
issued
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the Director of Permitting Services and remains valid;
or
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(g)
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years if the accuracy of the limits of tree canopy disturbance
has been verified
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qualified professional.
Issuance
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sediment control permit.
The Director of Permitting
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Services must not issue
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sediment control permit to
person that is
required to comply with this Article until:
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the Planning Board or Planning Director, as appropriate, or the
Director of Permitting Services has approved an applicant's
limits of disturbance; and
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(ill
the applicant
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any fee required under this Article.
55-7. Tree Canopy
=
Submissions to the Director of Permittinr: Senrices.
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General.
The limits of tree canopy disturbance information submitted to
the Director of Permitting Services must document the extent of the
existing area of tree canopy and the total area of tree canopy to be
disturbed
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the proposed activity.
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(Q)
Incorporation gf limits gf tree canopy disturbance.
The limits of tree
canopy disturbance information for the subject property must be
incorporated in
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sediment control permit or the site plan submitted for
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building permit.
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210
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BILL No. 35-12
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The limits
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tree canopy disturbance.
The limits of tree canopy
disturbance information for the subject site must include:
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map delineating:
the property boundaries;
the proposed limits of disturbance including any off-site
areas;
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(A)
ill)
©
the aerial extent of existing tree canopy cover on the
subject site,
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to 45 feet beyond the proposed limits of
disturbance;
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the intersection of aerial extent of existing tree canopy
cover and the limits of disturbance; and
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em
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any additional information specified by regulation; and
table summarizing the square footage of:
the property;
the limits of disturbance ofthe proposed activity;
the aerial extent of existing tree canopy cover;
the limits of tree canopy disturbance; and
any additional information specified by regulation.
The Director of
(A)
ill)
©
(D)
em
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Modification to limits
gf
tree canopy disturbance.
Permitting Services may approve
of tree canopy disturbance if:
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modification to an approved limits
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the modification is consistent with this Chapter, field inspections
or other evaluations reveal minor inadequacies of the plan, and
modifying the plan to remedy the inadequacies will not increase
the amount of tree canopy removed as shown on the final
approved plan; or
ill
the action is otherwise required in an emergency.
(IV
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BILL NO. 35-12
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Qualification Qjpreparer.
If
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tree canopy cover layer developed
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the
County is available and is used without alteration,
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professional
engineer, land surveyor, architect, or other person qualified to prepare
erosion and sediment control plans under Chapter 19 is also qualified to
prepare the limits of tree canopy disturbance information under this
Section. Otherwise, the limits of tree canopy disturbance information
must be prepared
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qualified professional as defined in Section
08.19.06.01 of the Code of Maryland Regulations or any successor
regulation.
55-8. Tree Canopy
=
Submission to the Planning Director.
ill
General.
The limits of tree canopy disturbance information submitted
to the Planning Director must document the extent of existing tree
canopy and the total area of tree canopy to be disturbed
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the proposed
activity. The Planning Director may use the information to identify the
most suitable and practical areas for tree conservation and mitigation.
{hl
Limits Qj tree canopy disturbance.
A
person that is subject to this
Section must submit the same limits of tree canopy disturbance
information as required under Section 55-7.
(£)
Incorporation Qj the limits Qj tree canopy. the natural resources
inventory/torest stand delineation, and fOrest conservation plan.
If an
applicant is required to submit
~
natural resources inventory/forest stand
delineation, the extent of tree canopy must be incorporated into that
submission for the same area included in the natural resources
inventory/forest stand delineation. If an applicant is required to submit
~
forest conservation plan, both the extent of tree canopy and the limits
of tree canopy disturbance must be incorporated into that submission for
the same area included in the forest conservation plan.
®
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BILL No. 35-12
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285
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Modification to limits
Q[
tree canopy disturbance.
The Planning
Director may approve
f!
modification to an approved limits of tree
canopy disturbance that is consistent with this Chapter if:
ill
field inspection or other evaluation reveals minor inadequacies of
the plan, and modifying the plan to remedy those inadequacies
will not increase the amount of tree canopy removed as shown on
the final approved plan; or
ill
ill
the action is required because of an emergency.
Submission for special exception.
If
f!
special exception application is
-
subject to this Chapter, the applicant must submit to the Plmming Board
any information necessary to satisfy the requirements of this Chapter
before the Board of Appeals considers the application for the special
exception.
55-9. Tree Canopy
=
Fee to Mitigate Disturbance.
ill
Objectives.
The primary objective of this Section is the retention of
existing trees. Every reasonable effort should be made to minimize the
cutting or clearing of trees and other woody plants during the
development of
f!
subdivision plan, grading and sediment control
activities, and implementation of the forest conservation plan.
®
Fees paidfor mitigation.
Mitigation required to compensate for the loss
QL
or disturbance
~
tree canopy must take the form of fees set
by
~
regulation under Method
which the applicant
llill
to the Tree
Canopy Conservation Fund. Mitigation fees are based on the square
footage of tree canopy disturbed and, therefore, increase as the amount
of tree canopy disturbance increases.
To provide credit for on-site
~
landscaping, mitigation fees must not be applied to the first
percent of
the area of tree canopy disturbed. Canopy identified as part of any
®
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No.
35-12
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forest delineated in an approved natural resources inventory/forest stand
delineation and subject to
f!
forest conservation plan is not subject to
mitigation fees under this Chapter.
Article 3. Enforcement and Appeals.
55-10. Inspections and notification.
(ill
Permission to gain access.
The Director of Permitting Services or the
Planning Director may enter any property subject to this Chapter to
inspect, review, and enforce.
(Q)
Plan to be on site; field markings.
A
.£QQY
of the approved limits of
-
tree canopy disturbance must be available on the site for inspection
Qy
300
301
302
the Director of Permitting Services or the Planning Director. Field
markings must exist on site before and during installation of all tree
protection measures, sediment and erosion control measures,
construction, or other land disturbing activities.
{fl
Inspections.
303
304
305
306
307
ill
The Director of Permitting Services must conduct field
inspections concurrently with inspections required for
!!
sediment control permit under Article
activity subject to Section 55-7.
308
309
I
of Chapter
l2.
for any
inspections
310
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312
313
ill
The
Planning Director must conduct field
concurrently with inspections required for
f!
forest conservation
plan for any activity subject to Section 55-S.
314
315
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The Director of Permitting Services or the Planning Director
may authorize additional inspections or meetings as necessary
to administer this Chapter.
316
317
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Timing gf inspections.
The inspections required under this Section
318
must occur:
@
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No. 35-12
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ill
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after the limits of disturbance have been staked and flagged, but
before any clearing or grading begins;
after necessary stress reduction measures for trees and roots
have been completed and the protection measures have been
installed, but before any clearing or grading begins; and
ill
after all construction activities are completed, to determine the
level of compliance with the limits of tree canopy disturbance.
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Scheduling requirements.
A person must request an inspection by:
ill
ill
ill
the Director of Permitting Services within the time required to
schedule an inspection under Section 19-12; or
the Planning Director within the time required to schedule an
inspection under Section
22A-15.
Coordination.
The Department of Permitting Services and the
Planning Department must coordinate their inspections to avoid
inconsistent activities relating to the limits of tree canopy disturbance.
55-11. Penalties and enforcement.
(ill
EnfOrcement authority.
The Department of Permitting Services has
enforcement authority for any activity approved under Section
and the Planning Board has enforcement authority for any activity
approved under Section 55-8.
338
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345
(Q)
EnfOrcement action.
The Director of Permitting Services or the
Planning Director may issue
f!
notice of violation, corrective order,
stop-work order, or civil citation to any person that causes or allows
f!
violation of this Chapter.
W
Civil penalty.
The maximum civil penalty for any violation of this
Chapter or any regulation adopted under this Chapter is $1,000. Each
day that
f!
violation continues is
f!
separate offense.
®
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No. 35-12
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Other remedy.
In addition to any other penalty under this Section, the
Planning Board may seek any appropriate relief authorized under
Section 22A-16.
55-12. Administrative enforcement.
(ill
Administrative order.
In addition to any other remedy allowed
by
law, the Planning Director may at any time, including during the
pendency of an enforcement action under Section 55-11, issue an
administrative order requiring the violator to take one or more of the
following actions within the time specified
by
the Planning Director:
ill
ill
ill
ill
ill
®
stop the violation;
stabilize the site to comply with
~
forest conservation plan;
stop all work at the site;
restore or reforest unlawfully cleared areas;
submit
~
limits of tree canopy disturbance, forest conservation
plan, or tree save plan for the net tract area;
place forested land, reforested land, or land with individual
significant trees under long-term protection
by
~
conservation
easement, deed restriction, covenant, or other appropriate legal
instrument; or
ill
(Q)
submit
~
written report or plan concerning the violation.
Effectiveness gf order.
An order issued under this Section is effective
when it is served on the violator.
Article 4. Administration
55-13. General.
(ill
Regulations.
The County Executive must adopt regulations, including
technical manuals, to administer this Chapter, under Method 2. The
@
F:\LAW\BILLS\1235 Tree Canopy Conservation Program\BiIll.Docx
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BILL
No. 35-12
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regulations must include procedures to amend
disturbance.
(h)
~
limits of tree canopy
Technical manual.
The technical manual must include guidance and
methodologies for:
ill
ill
preparing and evaluating maps of the aerial extent of the tree
canopy and the limits of tree canopy disturbance;
providing protective measures during and after clearing or
construction, including root pruning techniques and guidance
on removing trees that are or may become hazardous;
- ill
.c±l
W
monitoring and enforcing the limits of disturbance and the
limits of tree canopy disturbance; and
other appropriate guidance for program requirements consistent
with this Chapter and applicable regulations.
Administrative fee.
The Planning Board and the County Executive
may each,
Qy
Method
administer this Chapter.
@
J.
regulation, establish
~
schedule of
to
Reports.
On or before March
1
of each year, the Department of
Permitting Services, the Planning Board, and the Department of
Environmental Protection each must submit an annual report on the
County tree conservation program to the County Council and County
Executive.
W
Com12.rehensive
plan
for
mitigation.
The
Department
and
maintain
of
~
Environmental
Protection
must
develop
comprehensive County-wide plan to mitigate disturbance to tree
canopy. The Department of Environmental Protection should develop
the plan in consultation with the Planning Department, the
Department of Transportation, the Department of General Services,
@
F:\LAW\BILLS\1235 Tree Canopy Conservation Program\Bili I.Docx
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BILL
No. 35-12
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the Department of Economic Development, the Soil Conservation
District, and other agencies as appropriate.
ill
Sediment control permit application.
To prevent circumvention of
this Chapter, the Planning Director and the Director of Permitting
Services may require g person to submit an application for g sediment
control permit enforceable under this Chapter if that person:
ill
limits the removal of tree canopy or limits land disturbing or
construction activities to below requirements for g sediment
control permit; and
- ill
later disturbs additional tree canopy or land on the same
property, or
by
any other means, such that in total, g sediment
control permit would be required.
55-14. Tree Canopy Conservation Fund.
ill
General.
There is g County Tree Canopy Conservation Fund. The
Fund must be used in accordance with the adopted County budget and
as provided in this Section.
(hl
Mitigation fees paid into the Tree Canopy Conservation Fund.
Money
deposited in the Tree Canopy Conservation Fund to fulfill mitigation
requirements must be spent on establishing and enhancing tree
canopy, including costs directly related to site identification,
acquisition, preparation, and other activities that increase tree canopy,
and must not revert to the General Fund. The Fund may also be spent
on permanent conservation of priority forests, including identification
and acquisition of g site within the same subwatershed where the
disturbance occurs.
(£}
Fines paid into the Tree Canopy Conservation Fund.
Any fines
collected for noncompliance with g limits of tree canopy disturbance
@
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BILL NO. 35-12
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@)
or forest conservation plan related to tree canopy disturbance must be
deposited in
f!
separate account in the Tree Canopy Conservation
Fund. The Fund may be used to administer this Chapter.
Use
Q[
the Tree Canopy Conservation Fund.
ill
Any fees collected for mitigation must be used to:
fA)
.ill)
establish tree canopy;
enhance existing tree canopy through non-native invasive
and
native
InVaSIVe
specIes
management
control,
supplemental planting, or
f!
combination of both;
{Q}
establish forest; and
acquire protective easements for existing forests or areas
with existing tree canopy that are not currently protected,
including forest mitigation banks approved under Section
22A-13.
CD)
ill
The canopy established under paragraph
(I)CA)
should shade
impervious surfaces, manage stormwater runoff, and generally
increase tree canopy coverage. Trees native to the Piedmont area
of the County should be used, if feasible, to meet the mitigation
requirements of this Chapter.
ill
The establishment of tree canopy to satisfy the mitigation
requirements of
f!
project must occur in the subwatershed where
the project is located. Otherwise the tree canopy may be
established anywhere in the County.
@
F:\LA'WIS
ILLS\
1235 Tree
Canopy Conservation ProgramlBiII I.Docx
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LEGISLATIVE REQUEST REPORT
Bill 35'"12
Tree
Canopy Conservation
DESCRIPTION:
This bill introduces requirements for fees when tree canopy is
disturbed. Generally, it applies when a sediment control permit is
required under Chapter
19
of the Montgomery County Code and the
trees are not subject to Article
II
of Chapter
22A
The bill requires
the fees to be used to plant new trees to mitigate for the loss of
benefits provided by the tree canopy. The new trees will be located
using a comprehensive approach to enhancing tree canopy across the
County.
.
Currently, the Forest Conservation Law (FCL) does not apply to most
disturbances to individual trees outside of forests during
development. Also,
it
does not apply to development activity on lots
less than approximately one acre. In recent years, a significant
increase in development activity on small lots that are not subject to
the FCL has raised awareness of the value of trees to all residents, as
well as the need to provide communities some compensation for the
loss of trees when development occurs.
This bill is designed to provide mitigation for the loss or disturbance
to tree canopy not cwrently regulated by the FCL,
as
well as
specifying that the fees will be used to plant trees across the county
using a comprehensive approach that will enhance the existing
canopy.
.
Department of Permitting Services, Maryland-National Capital Park
&
Planning Commission, Department of Environmental Protection
See Fiscal and Economic Impact Statement
See Fiscal and Economic Impact Statement
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
The Forest Conservation Law, Chapter 22A ofthe Montgomery
County Code, requires mitigation when forest land andlor champion
trees, as well as certain other vegetation, are disturbed.
Stan Edwards, Division Chief, Division of Environmental Policy and
Compliance, Department of Environmental Protection (7-7748)
This
bill
applies to all municipalities
if
the
land disturbing activity
requires
a
sediment control pennit under Chapter
19
of the
Montgomery County Code that
is
approved and enforced by the
Department of Permitting Services.
Class A
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
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OFFICE OF THE COUNTY EXECUTIVE
ROCKVILLE, MARYLAND 20350
lsiah Leggett
County Executive
MEMORANDUM
October 25, 2012
TO:
FROM:
SUBJECT:
Roger Berliner, President
'-'--'-'_'_~;oH
County Councll
Isiah Leggett ...........-
County Executive
p~
ro-v-
Proposed Legislation: Tree Canopy Conservation Program
I am transmitting for Council introduction a bill that creates a Tree Canopy Conservation
Program which is intended to protect and enhance the County's valuable tree canopy. I am also
transmitting a Legislative Request Report, Fiscal Impact Statement, and Economic Impact Statement.
This bill introduces requirements for fees when tree canopy is disturbed as a result of
development activity. Generally, the bill applies when a sediment control pennit is required under
Chapter 19 of the Montgomery County Code and the trees are not subject to the County's Forest
Conservation Law (FCL). The bill requires the fees to be used to plant new trees to mitigate the loss of
benefits that were provided by the disturbed tree canopy.
When the PCL was adopted, the majority ofdevelopment in the County was occUlTing on
large, previously undeveloped parcels, much of which was forested. The PCL was intended to provide
compensation for the loss of forested land through the long-term protection of undisturbed forest or the
planting of new forests. As the amount of undeveloped land in the County has diminished, the majority
of development is now occurring on smaller, previously undeveloped "in-fill" properties or as the result
of redevelopment of previously built-out sites. While these parcels contain few forests, they often contain
significant tree canopy due to the presence of individual trees or clusters of trees not meeting the
definition of a forest. These trees provide significant benefits to communities, including helping to
reduce ambient temperatures, clean the air, manage stormwater, and generally increasing the economic
value of the property. However, the majority of these trees are not covered under the FCL and, as a
result, there is no mechanism requiring compensation for the loss of these trees.
The Tree Canopy Conservation Program would be implemented by the Department of
Pennitting Services or the Montgomery County Planning Department, depending on the nature ofthe
development activity. The process has been designed to be as streamlined as possible by incorporating
tree canopy review into the existing sediment control permitting process or the existing FCL review
process. The bill outlines the process for determining the extent of disturbed tree canopy subject to
regulation, but the specific fee structure would be set by regulation.
montgomeryc:ountymd.gov
/311
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Roger Berliner
October 25, 2012
Page 2
If you have any questions about this bill, please contact Bob Hoyt, Director ofthe
Department of Environmental Protection, at 240-777-7730 or bob.hoyt(a)montgomerycountymd.gov.
Attachments (4)
c.
Bob Hoyt, Director Department of Environmental Protection
Joe Beach, Director, Finance Department
"Kathleen Boucher, Assistant Chief Administrative·Officer.. ·.--.····
Marc Hansen, County Attorney
Diane Jones, Director, Department of Permitting Services
Jennifer Hughes, Director, Office of Management and Budget
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ROCKVILLE,
MARYLAND
MEMORANDUM
September 25, 2012
TO:
FROM:
SUBJECT:
Timothy
L.
Fir~Sf
e, Chief Administrative Officer
Jennifer
A.
Hu
Joseph F. Beach
,
rrector, Office of Management and Budget
irector, Department of Finance
Bill
XX-12 -
Tree Canopy Conservation
Please find attached the fiscal and economic impact statement for the above-referenced
legislation.
JAH:ms
Attachment
c: Kathleen Boucher, Assistant Chief Administrative Officer
Lisa Austin, Offices ofthe County Executive
Joy Nurmi, Special Assistant to the County Executive
Patrick Lacefield, Director, Public Information Office
Michael Coveyou, Department of Finance
David Platt, Department ofFinance
Stan Edwards, Department of Environmental Protection
Barbara Comfurt, Department of Permitting Services
Reginald Jetter, Department of Permitting Services
Alex Espinosa, Office of Management and Budget
Amy Wilson, Office of Management and Budget
Matt Schaeffer, Office ofManagement and Budget
Naeem Mia, Office of Management and Budget
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Fiscal Impact Statement
Bill
XX~12
- Tree
Canopy Conservation
1.
Legislative Summary
The proposed bill revises County law regarding tree canopy conservation in an effort to
save, maintain, and establish tree canopy for the benefits of County residents and future
generations. The bill would maximize tree canopy retention and establishment by
establishing fees to be assessed when disturbance to the tree canopy occurs; these fees
would then fund mitigation activities to restore the disturbed tree canopy.
The Department of Permitting Services (DPS) and the Maryland National Capital Park and
Planning Commission (M-NCPPC) will administer the law; the Department of
Environmental Protection (DEP) will have oversight of tree canopy restoration activities.
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 infonnation, assumptions, and methodologies used.
DEP lIas indicated that new work created as a result of this legislation (tree canopy
restoration activities)
will
have costs that will correlate to the amount of received fees.
While the cost of future work is not known, DEP has asserted that any future costs related
to tree canopy restoration activities will not exceed collected fees.
A. M-NCPPC has estimated a cost of $12.480 annually and a one-time first-year
expenditure of $3,600 related to planning the tree canopy restoration policies outlined in
the bill. Some ofthe specific planning activities related to tree canopy restoration
conducted by MNCPPC
I
include:
• Development of a planting plan (One-time investment of 20 work hours)
• Annual Report development (20 work hours)
• Development of a Fee Schedule (One-time investment of 40 work hours)
• Annual adjustment of fee schedules (8 work hours)
• Plan Review Time (60 forest conservation plans per year
@
3 hours per plan)
B. DPS has indicated fiscal impacts relating to the inspection and fine assessments of tree
canopy disturbance of approximately $67,118 annually in the following work areas:
500 additional inspection and assessment projects (S25,752/annuaJly)
• Permit Technicians (250 work hours): $8,878
(.5
fIrs
each project @ Grade
19
midpoint salary of$56,828 plus benefits
2
or $35.51Ihr)
• Permit Services Specialists/PIan Reviewers (125 work hours): $6,166
(.25 Hrs each project@ Grade 26 midpoint salary
0[$78,929
plus benefits or $49.33/br)
• Inspectors (250 work hours): $10,708
(.5 Hrs each project @ Grade 23 midpoint salary of$68,531 plus benefits or
$42.83/hr)
200 additional complaints relating to tree loss (S41,366/annuaJly)
• Permit Tecbnicians (200 work hours): $7,102
(1
Hr each project@ Grade
19
midpoint salary of$56,828 plus benefits or $35.511hr)
Cost estimates are based on a rate of$60 per hour.
2
Benefit calculation is 30 percent of base pay.
I
1
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--
- .-..-.-- .."...
~.~-~
•.
~-~-~~--~-
___.. __ . "'-...
__
~
'~
,_~
____·__·___ .w
_.,,_
• Inspedors (800 work hours): $34,264
(4 Hrs each project@ Grade 23 midpoint salary of$68,53I
plus
benefits
or $42.831hr)
Revenues resulting from this legislation will depend on the determination of a rate model
for tree canopy disturbance fees. The rate model will be established via method 2
regulation.
3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
DEP has indicated that new work created as a result of this legislation (tree canopy
restoration activities)
will
have costs that will correlate to the amount of received fees.
While the cost of future work is not known, DEP has asserted that any future costs related
to tree canopy restoration activities will not exceed collected fees.
DPS reports future expenditures of approximately $62,118 annually (as explained above).
The-total six·year expenditures for DPS are approximately $402,708.
M-NCPPC reports annual expenditures of $12,480 with a one·time startup charge of
$3,600 to implement the planning and implementation plan for the bill (as explained
above). Total six·year expenditures for MwNCPPC are approximately $78,480.
Revenues resulting from this legislation will depend on the determination of a rate model
for tree canopy disturbance fees. The rate model wi1l be established via method 2
regulation.
4. An actuarial analysis through the entire amortization period for each bill that would
affect retiree pension or group insurance costs.
Not applicable. This bill does not affect retiree pension or group insurance costs.
5. Later actions that may affect future revenue and expenditnres if the bill authorizes
future spending.
The bill authorizes the creation ofa Tree Canopy Conservation Fund that would fund tree
canopy restoration activities in the future.
6. An estimate of the staff time needed to implement the bill.
While DEP does not expect the need for additional staff time to implement the bill, future
staff needs could change depending on the extent of tree canopy restoration activities
resulting from the bill.
DPS reports the need for an additional 1,625 work hours annually in different job classes
to implement the bill.
MNCPPC reports the need for an additional 208 hours annually and 60 hours
to start up the program in the first year of implementation.
7. An explanation of how the addition of new staff responsibilities wou1d affect other
duties.
2
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While DEP does not expect the need for additional staff time to implement the bill, the
actual impact on staffwiJl depend on the extent
01
tree canopy restoration activities
as a result of implementing the bill.
DPS reports that the bill would impact both the workload of pennitting staff and permit
reviewing staff. Estimates for costs of additional work are provided above.
reports that the bill would impact the workload of forest conservation
planners. Estimates for costs of addition work are provided above.
8. An estimate of costs when an additional appropriation is needed.
Not applicable.
9.
A
description of any variable that could affect revenue and cost estimates.
DEP has indicated that costs and revenues relating to tree canopy restoration will be
dependent on the amount of fees received. The rate model for fees
win
be established by
method 2 regulation.
M~NCPPC
Article IV, Section 55·1 3(c) allows for the establishment ofa fee for administering the
program; this fee would be adopted under method 3. An administrative fee has not been
established but could impact revenue and cost estimates.
Article III, Section 55-11 (c) establishes a maximum $1,000 civil penalty for violation of
the proposed legislation. Fines would be deposited into the Tree Canopy Conservation
Fund and could be used to implement any part of the bill. Estimates of revenue from
these fines are difficult to predict without knowing the extent of the violations.
10. Ranges of revenue or expenditures that are uncertain or difficult to project.
DEP has indicated that costs and revenues relating to tree canopy restoration will be
dependent on the amount of fees received. The rate mode] for fees will be established by
method 2 regulation.
Article
IV, Section SS-13(c) allows for the establishment of a fee for administering the
program; this fee would be adopted under method 3.
An
administrative fee has not been
established but could impact revenue and cost estimates.
Article III, Section 55-1 I (c) establishes a maximum $1,000 civil penalty for violation of
the proposed legislation. Fines would be deposited into the Tree Canopy Conservation
Fund and could be used to implement any part of the bilL Estimates of revenue from
these fines are difficult to predict without knowing the extent of the violations.
11.
If
a bill is likely to have no fiscal impact, why that is the case.
Not applicable.
3
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12. Other fiscal impacts or comments.
This
bill
creates a Tree Canopy Conservation Fund as the account for fees collected as a
result of tree canopy disturbance and the source of funds for tree canopy restoration
projects. DEP would manage this fund.
13. The following contributed to and concurred with this analysis:
Stan Edwards, Department of Environmental Protection
Barbara Comfort, Department of Permitting Services
Regina1d Jetter, Department of Permitting Services
Rose Krasnow, MNCPPC
Amy Wilson, Office of Management and Budget
Matt Schaeffer, Office of Management and Budget
Naeem Mia, Office of Management and Budget
~I/(~
Date
4
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Economic Impact Statement
Council Bill XX-12, Tree Canopy Conservation
Background:
The purpose of this legislation is to; 1) save, maintain, and establish tree canopy for the benefit
of County residents and future generations; 2) maximize tree canopy retention and establishment;
3) establish procedures, standards, and requirements to minimize the loss and disturbance of tree
canopy as a result of development; 4) provide for mitigation when tree canopy is lost or
disturbed; and 5) establish a fund for tree canopy conservation projects, including plantings of
individual trees, groups of trees, or forests, on private and public property. The proposed
legislation generally revises County law regarding tree canopy conservation.
The requirements of this bill are applicable when a sediment control permit is required under
Chapter 19 of the Montgomery County Code and the trees are not subject to Article II of Chapter
22A. The bill supplements the Forest Conservation Law (FCL). The FCL does not apply to
most disturbances to individual tress outside of forests during development, and it does not apply
to development activity on lots less than approximately one acre.
1.
The sources of information, assumptions, and methodologies used.
Not applicable
2.
A description of any variable that could affect the economic impact estimates.
The economic impact of the bill will vary based on a number of factors including the amount of
acreage that is the subject of the sediment control permit, the area of tree canopy on land covered
by such a permit, the amount of the fee imposed per square foot of tree canopy disturbed as a
result of the development activity subject to the pennit, and the market conditions at the time of
development. The cost of development for each property will be affected by the amount of tree
canopy disturbed times the fee.
3.
The BiH's positive or negative effect, if any on employment. spending, saving.
investment, incomes, and property values in the County.
The bill may increase the cost for developing some properties, and those costs may affect the
gross profit margin to the developers or the price of the property. However, some studies
indicate that property with trees can have a higher value than property that is cleared of trees. To
the extent that the proposed legislation encourages developers
to
retain trees, they may realize a
higher return than if they clear the site. However, this analysis would vary by property and
market conditions and would need to factor in the cost of removing trees as well as the impact of
the cost of the fee. With a specific fee structure it will be possible to estimate these potential
costs.
1
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Economic Impact Statement
Council Bill XX-12, Tree Canopy Conservation
4.
If
a
Bill
is likely
to
have no economic impact, why is that the case?
Not applicable; see item
3.
5.
The
following contributed to and concurred with this analysis: David Platt and Mike
Coveyou, Finance and Stan Edwards, Environmental Protection.
Date (
I
2
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Testimony on Behalf of County Executive Isiah Leggett
Regarding
Bill 35-12,
Trees - Tree Canopy Conservation
Robert G. Hoyt, Director
Department of Environmental Protection
January 17,2013
Good evening. My name is Bob Hoyt. I am the Director of the Department of
Environmental Protection. Thank you for the opportunity to testify on behalf of the County
Executive in support of Bill 35-12. This bill is intended to protect and enhance the County's
valuable tree canopy.
It
introduces requirements for fees when tree canopy is disturbed or
removed as a-result of development activity. Generally, it applies when a sediment control
permit is required under County Law and the trees are not subject to mitigation under the
County's Forest Conservation Law. The bill requires that fee revenues be used to establish new
trees to mitigate for the loss of the benefits provided by the disturbed tree canopy.
An
increased proportion of development is now occurring as smaller "in-fill"
development or as redevelopment of previously built-out sites. Most of these parcels are not
subject to mitigation under the Forest Conservation Law because they are too small. Yet they
often support canopy from individual trees or clusters of trees. Additionally, significant amounts
of canopy outside of forests are not regulated on lots even where the Forest Conservation Law
does apply. The trees associated with this canopy provide numerous benefits to our community,
including helping to reduce ambient temperatures, clean the air and water, manage stormwater,
increase the economic value of the property, and generally increase our sense of well-being. Bill
35-12 creates a regulatory structure to encourage preservation of these trees and require
mitigation when they are disturbed .
. Under the bill, the application and review procedures are streamlined and designed to be
implemented by both the applicant and the agencies without requiring any significant
expenditures of additional resources. They are incorporated into the existing sediment control
permitting process or the existing Forest Conservation Law review process.
Page 10f2
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The bill would be implemented by the Department of Permitting Services (DPS) or the
Montgomery County Planning Department, depending on whether the lot is subject to the Forest
Conservation Law. If a lot is subject to the Forest Conservation Law, the Planning Department
will implement the bill. For other properties, DPS will implement the bilL The bill outlines the
method for calculating the amount of tree canopy disturbed and establishes that the amount of
the fee will be based on the amount of disturbance and increase as disturbance increases. The
specific fees would be set by regulation.
Specific fees are not included in the bill itself because the County Executive felt that the
discussion should focus on the merits of the "fee in lieu" mitigation approach outlined in the bilL
The bill requires that the fees be established by Method 3 regulations which do not require
formal approval of Council. However, this part of the bill reflects an inadvertent drafting error.
The County Executive's intent is that the fees established under the Tree Canopy Conservation
Program be established by Method 2 regulations which require affirmative approval by the
Council.
This bill is the product of many years of discussions with a variety of stakeholders.
Given the range of views on the extent to which trees should be afforded regulatory protection ­
with some believing no additional regulation is needed and others believing this bill does not go
far enough
you will hear from a variety of speakers tonight that will offer a number of
criticisms or suggested changes to the bill. We look forward to exploring each of these issues
and seeing ifbetter approaches can be agreed upon. Trees contribute significantly to the quality
oflife in our County, particularly
in
our residential neighborhoods.
It
is critical that we establish
a regulatory framework to protect and enhance this valuable resource for future generations. I
urge you to support Bill 35-12.
I would be happy to address any questions the Council may have.
Page 2 of2
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MONTGOMERY COUNTY PLANNING BOARD
THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION
OFFICE OF THE CHAIR
January 17,2013
The Honorable Nancy Navarro
Montgomery County Council
100 Maryland Avenue
Rockville, Maryland 20850
Dear Ms. Navarro:
The Montgomery County Planning Board reviewed and discussed Montgomery
County Council Bill 35-12 - Tree Canopy Conservation on January 10, 2013. On January 17,
2013, the Planning Board held a second discussion on the proposed legislation. The Planning
Board supports the goal of this bill to preserve tree canopy or provide for the replacement of
canopy removed by development. However, the Board considers the bill as written seriously
flawed. We hope to have the opportunity to work with Council, its staff, and Executive
Branch agencies to improve the ability of this bill to achieve its objectives. Enclosed is a
copy of the staff report prepared by Planning staff, which the Council may find useful for
background information.
Members of the Planning Board are particularly concerned that Section 55-5 does not
exempt the Parks Department from the provisions of this bill, which would impose a fee on
development projects based on the amount of tree canopy within the area of land to be
disturbed, regardless of whether any trees are actually removed or damaged. The bill as
drafted would impact all park projects that require sediment and erosion control permits, thus
adding another layer of cost and regulatory complexity to a wide variety of work on M­
NCPPC parkland including park capital improvement projects, historic resource
restoration/rehabilitation projects, and environmental restorationlhabitat improvement
projects. By the very nature ofparkland, it is typical for park capital projects to involve
extensive work under tree canopy, during which significant effort and expense is made to
avoid damage to the trees. The Department of Parks currently undertakes a wide variety of
efforts to avoid, minimize, and mitigate the negative effects ofpark projects on native tree
canopy, with great success. The proposed bill offers no offset credit for tree protection efforts,
removal ofnon-native and invasive trees, or historic resource restoration. The Planning Board
requests that all Parks Department projects be exempt from the provisions of this bilL
8787 Georgia Avenue, Silver Spring.
Maryland
20910 Phone: 301.495.4605 Fax: 301.495.1320
www.montgomeryplanningboard.org E-Mail: mcp-chair@mncppc-mc.org
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Council President Nancy Navarro
January
17, 2013
Page 2
In the Planning Board's view, the proposed bill overreaches in charging for all canopy
with the limits of disturbance on a site. The Board believes that regulated entities should be
given credit against their canopy fee for protecting individual trees and their critical root
zones. This would strengthen the incentive to protect trees rather than impacting them, in
situations where options exist to save trees. The Planning Board further recommends that the
bill be amended to allow regulated entities some option to reduce mitigation costs by planting
trees onsite to mitigate for the loss of canopy on the subject site. The best approach to
achieve this will require further discussion among interested parties.
The members of the Planning Board are also concerned that the bill does not articulate
the rate at which the mitigation fee will be set. The fee is proposed to be set by Method 2
regulation, however, it is unknown if the unit cost will be the same in all cases or if there will
be a sliding scale that increases as more land under the tree canopy is disturbed, or if the cost
will be nominal or substantial. The Planning Board recommends that a fee be setbefore any
bill is adopted, so the Council and other interested parties have a full understanding of the
ramifications. The Planning Board believes that any mitigation fee should be capped.
Planning staff highlighted the fact that there are two different enforcement
mechanisms proposed by the Bill. Certain regulated parties would be subject to
Administrative Civil Penalties imposed by the Planning Board of up to $10.50 per square
foot, whereas others, whose plans are not reviewed by the Planning Board would not be
subject to the same penalties. The Planning Board does not believe any person that violates
the proposed law should be subject to an Administrative Civil Penalty. The enforcement
mechanism should be the same for all plans reviewed under the provisions ofthis bill.
We look forward to working with the County Council and County Executive on this
bill.
Fran~oise
M. Carrier
Chair
Enclosures
FMCIMPljh
@
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MONTGOl\1ERY COUNTY PLANNING DEPARTl\1ENT
THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION
Discussion: Montgomery County
Bill 35·12 -
Tree Canopy Conservation
MCPB
Item No.
Date: 1-10-13
(fIf
Mark Pfefferle, Chief, Mark.Pfefferle@montgomeryplanning.org, 301495-4730
Completed: 1-3-13
Description
Montgomery
Cou~ty
Bill 35-12 was introduced by the County Council on behalf of the County Executive on
November 27,2012. This bill proposes a new requirement on any person that is required to obtain a
sediment control permit and that removes tree canopy. Persons that remove tree canopy will be required
to pay
a
fee to mitigate for the removal of canopy.
The fees collected are to be deposited into the Tree
Canopy Conservation Fund, which would be authorized by the legislation. The funds will be used for the
establishment and enhancement of existing tree canopy. The County Council is holding a public hearing on
January 17, 2013. The public hearing will also be for Montgomery County Bi1I41-12 entitled Street and
Roads- Roadside Trees Protection. Bill 41-12 is not the subject of this staff report and this bill does not
impact the Planning Department.
Summary
Staff recommends the Planning Board support Bill 35-12 with amendments.
Discussion
If approved by the Council, Bill 35-12 would supplement the County's Forest Conservation law or Chapter 22A
of the County code. The County's Forest Conservation Law is modeled after statewide legislation passed in
1991 that required each county and municipality to develop and implement a forest conservation program.
The County's Forest Conservation Law is primarily focused on the protection and creation of new forest. The
Forest Conservation Law requires any regulated entity to preserve a certain percentage of their property in
forest, or to plant new forest if no forest is currently onsite. If a person is unable to protect, or plant, the
required percentage of forest onsite there is an offsite planting requirement. Not all projects have forest
planting requirements. Recently the State and County Forest Conservation laws were amended to provide
additional findings before trees greatefthan 30 inches diameter could be impacted by development.
Montgomery County Bill 35-12 is not a State mandated requirement but was initiated by the County Executive
to "minimize the loss and disturbance of tree canopy as a result of development".
Bill 35-12 requires any person that is required to obtain a sediment control permit pay a fee to mitigate
canopy loss when land disturbing activities occurs under the tree canopy. The fee will be paid to the County
1
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and deposited into the Tree Canopy Conservation Fund. The fee is to mitigate for the loss ot or disturbance,
to tree canopy; however, the mitigation amount is based on the amount of ground disturbance under the tree
canopy and not based on the actual removal of the tree canopy. The methodology is simple, however not
always accurate for frequently land is disturbed under tree canopy without any portion of th.e tree above
ground-level being impacted.
The methodology used to calculate the mitigation amount does not give credit to persons that utilize tree
protection to save trees and thus tree canopy. The methodology does not consider the health of the tree nor
the tree species. Certain tree species are more susceptible to construction damage than are others; similarly
trees that are in poor health have difficulty withstanding any additional impacts such as the severing of roots.
There should be consideration given to the health of a tree, however, the methodology does not require field
visits but relies on aerial photography superimposed over the proposed limits of disturbance. There is a
tradeoff between the simplicity of the methodology to identify tree canopy loss and the information and data
needed to calcula!e the mitigation. The proposed methodology does not require persons subject to the law to
have special qualifications to assess the heath of the trees that support the canopy.
The proposed legislation does not indicate the unit fee amount nor does it discuss if the fee will be set at a flat
rate or graduated to increase as more land under the tree canopy is disturbed. The legislation does not allow
persons subject to the law to meet the mitigation requirements other than through payment into the Tree
Canopy Conservation Fund.
. If approved the legislation will be administered and enforced by the Planning Department and the
Montgomery County Department of Permitting Services. The Planning Department will be required to
implement and enforce the provisions of the law for properties that are subject to the forest conservation law.
This will include all development applications that require Planning Board approval and all properties where a
Forest Conservation plan, or exemption from submitting a forest conservation plan, is approved by the
Planning Director.
The Department of Permitting Services will administer and enforce the provisions of the
law on all persons that are required to get a sediment control permit but do not require any approval from the
Planning Department. This will typically apply to owners of recorded single lots less than 40,000 square feet in
size. The legislation does not apply to any person that wishes to remove a tree when a sediment control
permit is not required. Therefore, homeowners will be able to remove a hazardous tree without being subject
to the legislation.
Impact to Planning Department
The additional work for the Planning Department review staff should be minimal for staff already has the
aerial extent of tree canopy shown on natural resource inventories/forest stand delineations.
All forest
conservation plans and all exemptions from submitting a forest conservation plan show the limit of
disturbance and the tree canopy therefore the amount of tree canopy impacted, according to the
methodology, is simple to calculate.
The inspection staff would continue to ensure approved plans are fully implemented. There should be
minimal additional work to the enforcement staff to implement this bill. However, the Bill as written provides
the potential for all enforcement actions to be forwarded to the Planning Director for action {lines 349
2
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through 367). This could substantially increase staffs workload. Staff is proposing changes to the Bill that
keeps the enforcement of the law separate and distinct and prevents violations under the Department of
Permitting Services' authority from being enforced by Planning staff, or penalties assigned by the Planning
Board.
Impact to the Regulated Entities, including the Parks Department
The tree canopy legislation is a new cost to all persons subject to the legislation. Anyone that is required to
obtain a sediment control permit will also be required to prepare a plan showing the aerial extent of canopy
and the proposed limits of disturbance. The intersection between the limits of disturbance and the tree
canopy will determine the amount of mitigation necessary. The fee associated with the mitigation will be set
at a later date. The proposed legislation indicates that mitigation fees will not be applied to the first 5 percent
of the area of tree canopy disturbed (lines 290 and 291). This is seen as a credit for on-site landscaping (line
289). However, the legislation does not provide a credit for meaningful tree protection.
The Parks Department will be subject the legislation each time they are required to obtain a sediment control
permit. They will need to provide mitigation equal to the intersection between the tree canopy and the limits
of disturbance. The Parks Department has certified arborists that design tree protection to protect the park
assets but under the proposed Bill will receive no credit for tree protection. An example of a project that will
be heavily impacted by this new legislation is Woodside Park. In October 2011 the Planning Board approved a
forest conservation plan for the Park. The Park contains no forest but is almost completely covered by tree
canopy. The limit of disturbance that is associated with the forest conservation plan is large and the tree
protection to be installed is impressive, however, even though many trees will not be removed the
intersection between the limit of disturbance and tree canopy will require a large amount of mitigation for the
5 acre park. The legislation does not grandfather previously approved plans and therefore the Parks
Department will need to pay the required fee.
Conclusion and Recommendation
Planning staff recommends the Planning Board support Bill 35-12 requesting the following amendments:
1. Provide an exemption that grandfathers any project that has obtained approval of a forest
conservation plan or an exemption from submitting a forest conservation plan prior to the effective
date ofthis legislation. Insert a new section 55-50) that grants an exemption to the provisions of
this Bill if
"any person that has obtainedapproval of a preliminary or final forest conservation plan,
or an exemption from submitting a forest conservation plan, before the effective date of this
legislation. "
2. On line 209 change
"site plan"
to
"building site plan"
for site plan is identified in the "definition"
section on lines 98 and 99 as
tla plan or an amendment to a plan approved under Division 59-0-3 or
Chapter
59". Staff also recommends the term
"building site plan"
be identified in the section 55-2 as
llBuilding Site Permit means a drawing submitted in support of a building permit application for an
individual lot".
3
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3. Identify the mitigation rate in Section 55-9. That is, will the unit fee be the same for each unit
square foot of tree canopy impacted or will the mitigation unit fee increase as the square footage of
disturbance increases.
4.
Include a subsection within Section 55-9 that provides mitigation credit to any person that does not
remove any tree canopy and protects trees during the construction process.
5. Include a subsection within Section 55-9 that provides mitigation credit to any person that does not
remove any tree canopy and impacts less than 30% of the critical root zone of a tree that supports
the tree canopy.
6.
Provide opportunities for persons that have a tree canopy mitigation requirement to meet their
mitigation by planting new or replacement trees onsite instead of requiring an automatic payment
into the Tree Canopy Conservation Fund. Base the on-site mitigation on the 20 year canopy of each
tree species to be planted.
7.
Under tbe "Penalties and enforcement" section, replace lines 339 to 342
"Enforcement oction. The
Director_of Permitting Services
or
the Planning Director may Issue
0
notice of violation, corrective
action order, stop-work order,
or
civil citation
to
any person thot causes
or
ollows a violation of this
Chapter"
with
"Civil action: For any activity subject
to
Chopter
55-7,
the County may bring ony civil
action authorized by law under Sections
1-18,1-19,
and 1-20
to
enforce this Chapter
or
any
regulation adopted under it."
8. Under the "Penalties and enforcement" section, replace lines 346 to 349
"Other remedy. In addition
to
any other penalty under this Section the Planning Board moy seek any appropriote relief
authorized under Section 22A-16"
with
"For any activity subject
to
Chapter
55-8,
the Planning Board
may bring any enforcement action authorized under Article
11/
ofChapter 22A
to
enforce this Chapter
or
any regulations adopted under it".
This clarifies that the Planning Board would not be asked to
assess an administrative civil penalty to violations under the purview of the Department of
Permitting Services.
9. Delete the entire section 55-12 "Administrative Enforcement" (lines 349 to 367) for this is already
addressed in the changes mentioned above. Since the Planning Department's reviews associated
with the Bill will be incorporated into a forest conservation plan (lines 261 to 264) this section is not
necessary.
10. Modify lines 424 to 428 from
"Fines paid into the Tree Canopy Conservation Fund. Any fines
collected for noncompliance with a limit of tree canopy disturbance
or
forest conservation plan
related
to
tree canopy disturbonce must be deposited in a separate occount in the Tree Canopy
conservation Fund"
to
"Fines collected under the enforcement ofChapter
55-7 to
be deposited in
0
separate account in the Tree Canopy Fund. Fines collected under the enforcement ofChapter
55-8 to
be deposited in the County Forest Conservation Fund."
Attachment
1.
Montgomery County Bill 35-12: Trees- Tree Canopy Conservation
4
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Amended staff recommendations presented to the Planning Board on January 10,
2013.
Replace staff recommendations 7 and 8 of the staff report with new
recommendation #7 below
55-11. Penalties and enforcement.
UD
Enforcement authority.
The Department of Permitting Services has
enforcement authority for any activity approved under Section 55-7
and the Planning Board has enforcement authority for any activity
approved under Section 55-8.
(Q}
Civil
EnforcemeBt actions.
For any activity subject to Chapter 55-7
or 55-8 t+he Director of Permitting Services or the Planning Director
may bring any civil action authorized by law under Sections 1-18, 1­
19, and
l-20
to enforce this Chapter or any regulation adopted under it
except that the maximum civil fine permitted is as stated in 55­
11(c).may issue a notice of violation, corrective order, stop
vlOrk
order, or civil citation to
!illY
person that causes or allows a violation
of this Chapter.
(£)
Civil
finepeDslties.
The maximum civil finepenalty for any violation
of this Chapter or any regulations adopted under this Chapter is
$1,000. Each day that
f!
violation continues is
f!
separate offense.
@
Other remedies.
In addition to
Q:!1Y
other penalty under this Section,
the Planning Board
!!illY
seek
.ill1Y
ilimfOpriate relief authorized under
Section 22A 16.
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a,IA
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-ur 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 DI'lR 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 if that 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 compelling. 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 having
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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, well let's 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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THE LEAGUE OF WOMEN VOTERS
ofMontgomery County, MD, Inc.
TESTIMONY TO THE TRANSPORTATION, INFRASTRUCTURE, ENERGY
&
ENVIRONMENT COMMITIEE,
MONTGOMERY COUNTY COUNCIL:
Bill 35-12, TREE CANOPY CONSERVATION {PROGRAM}
JANUARY 17, 2013
Good evening. I am Linda Silversmith, Action Vice President and Natural Resources Co-Chair of the
League
bf
Women Voters of Montgomery County, MD (LWVMq. On behalf of the League, I am
speaking in favor of this bill establishing a tree canopy conservation program .
. We note the following concerning existing and proposed county environmental programs:
• The county wisely commissioned and received from its Sustainability Working Group a County
Climate Protection Plan in 2009 that resulted in
SO
to 60 wide-ranging recommendations.
• . Chapter 18A of the county code,
Energy-~egulations,is
commensurate with the climate
protection plan but addresses only one area of the plan's recommendations. Many of its other·
areas need further attention, including trees and forests.
• The approach in the proposed bill is particularly wise in proposing touse the amount of tree
canopy':" rather than the number of trees - as a measure for protection and enhancement of tree
coverage in urban areas.
• The proposed bill fills a gap as the county's Forest Conservation Act does not cover groups of
trees that do not constitute a forest.
Below are some specifics concerning relevant LWVMC positions:
• . Nationwide the League of Women Voters speaks up to promote an environment beneficial to life
through the protection and wise management of natural resources in the public interest.
• We support speCial attention to maintaining and improving the environmental quality of urban
communities.
• We recognize the special responsibility by each level of government for those lands and resources
.entrusted to them.
• We join the county administrator in recognizing the multiple value of trees for cleaning air and.
water, managing storm water, and ameliorating ambient temperatures.
League of Women Voters of Montgomery County, Maryland, Inc., 12216 Parklawn Dr., Suite 101, Rockville, MD 20852 .
~
,
.
.
,
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• Indeed, with the climate change crisis that is now confronting the earth, every positive step we
can take towards moderating temperatures is important. Fighting climate change is one of the
highest national priorities of the League.
Indeed, climate change is probably the most urgent issue facing humankind. Actions taken at any
level of government can help,
Thank you for your attention.
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~
Conservation Montgomery
~
TESTIMOl',y
Regarding Montgomery County CouncU Bi1l35-12, Montgomery County Urban Canopy Bill
Delivered to
Montgomery County Council
by Caren Madsen, Chair
on behalf of Conservation Montgomery
January 17, 2013
Thank you for the opportunity to testify on behalf of Conservation Montgomery on this very important
legislation.
We support passage Bi1l35-12. However, our support is conditional. We urge the Council to
incorporate amendments that you will receive from Conservation Montgomery and our partners before the Jan.
28
th
Transportation
&
Environment Committee work session. A starting point for our list is at the bottom of my
testimony. We also ask that you use Planning Board recommendations that will strengthen 35-12 and clarify
language. My understanding is that the County Executive is willing to accept amendments that will improve
this bill. That's good news.
Bill 35-12 is intended to slow the loss of existing canopy and discourage scraping lots down to
moonscapes on smaller tracts of land that are not covered under the existing Forest Conservation Law (FCL).
For the past 20 years, we've seen many trees that fall below the 40,000-square foot threshold of the FCL
disappear. Over the past 20 years, we have also seen changes in development patterns. Development has
shifted more toward urbanized areas of the county closer to transit centers. It's time for our tree laws to be
updated to reflect trends in development.
Opponents of 35-12 will tell you that the cost of implementation is too high and that new tree legislation
will add "more red tape and bureaucracy" to the development review process. Attached to my testimony, please
find a 1991 letter from members of the building industry. They were protesting the FCL, and complained to
then-Council President Leggett of costs associated with implementation of the FCL, more red tape and
bureaucracy. Yet today, builders are protesting 35-12 and its companion Bill 41-12 and telling us that the FCL
works and that we don't need more protection for trees that fall outside of the jurisdiction of that law.
Opponents of35-12 will say we have enough trees and they'll point to our almost 50% countywide
canopy cover - which includes forested land covered by the FCL that our friends in the building industry
opposed in the early 1990s. But the fact is there are sections of the county at 8% canopy (Montgomery Hills),
or 11 % (Bethesda central business district), or 13% (Long Branch community). We believe that .aJlresidents of
this county deserve to live within an acceptable level oftree canopy.
P.O. Box 7292
WWW.ConservationMontgomery.org
Silver Spring, MD 20907
240-793-4603
Conservat:onMontgomery@live.com
@
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Even where there are areas of the county with abundant canopy, it's important to remember that tree
canopy is never static.
It
is always changing due to tree loss from many causes. Tree canopy percentages are
a moving target. We need better laws to manage this valuable resource effectively and conserve trees that fall
outside of the definition of forests as stated in the FCL.
This long-awaited tree bill presents Montgomery County with an opportunity to replicate the modest
success of the existing FCL; we can slow tree loss in the Down County just as the FCL has slowed loss of forest
land in the Up County. We can no longer afford the cumulative impact of losing canopy in urbanized sections
of the county a few trees at a time.
Respectfully, we submit the following revisions to 35-12 and encourage the Council to include Planning
Board amendments in the final version of Bill 35-12:
1. In general, additional mitigation options must be identified in Bill 35-12. We need incentives to save
healthy mature trees on-site instead of using a fund to cut and pay as the only option. A good starting
point is that builders should get mitigation credit and not be required to pay into a fund when they do not
disturb tree cailOpy and whenever they take measures to preserve existing trees on a site. This will
provide more incentive for saving healthy mature trees than offering a cut and pay scenario as the only
option in an urban canopy law.
2. Parks need to be exempt from Bill 35-12 in the same way that DEP has exempted their own stewardship
projects.
3. The mitigation rate in Bill 35-12 is unknown. This needs to be included or discussed prior to passage.
The regulated community has a right to know what the fee amounts will be. And we ask that a
significant fee amount be placed on demolition of mature or desirable trees. The fees collected must be
significant to deter unnecessary removal of healthy trees, and high enough for this new policy to be
effective -- and taken seriously.
4. Set a countywide canopy goal of a 50% minimum in all areas of the county. This will ensure that areas
where the canopy is now as low as 8% (Montgomery Hills) or 13% (Long Branch) have a measurable
goal for increasing canopy in the future.
5. Bill 35-12 proposes to delegate DPS with a new role in implementation of tree canopy regulations, yet
DPS is being assigned a role for which they presently have no experience or expertise. There must be an
ISA-certified arborist within DPS who has the technical knowledge to determine what trees can be saved
on a plan or should be saved, or what species and size should be replanted to replace canopy that is
destroyed. Only an ISA-certified arborist and staff can fully implement the legislation and regulations in
an accompanying technical manual for both tree bills. If an ISA-certified arborist is assigned with
duties under the provisions in Bill 41-12, perhaps the same professional can also administer provisions
of the urban canopy legislation.
6. The maximum civil penalty of$1,000 per day is far too low. In order for provisions ofBill 35-12 to be
enforced effectively, the penalties should be increased along with setting a substantial cost for
demolition of mature tree canopy.
P.O. Box 7292
Silver Spring, MD
20907
240-793-4603
r
n
n<;prvritionM
0
nt,romerv(allive.com
WWW.ConservationMontgomery.org
@
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Associated Builders and Contractors
ASSOCIATeD
flU .... DCIn
AND CQNTnA(
TOfIlo.
IN<.
:, I
oQMe~ropolitan
Washington
October 23,
1991
t
P:e$,cen:
Plltrick
J.
Caulfield
~.,
J
I
./
•• ;
A
rVC.\d"",,S
C...
'V'I.vf'"""""I,,,YI
ec.
1",­
FilS! V;,:e
President
WilHam L
Magrud~r
()VN'~fP'l!I.."t'IQft_1tI"I(
I
Seronc
Voce President
loyal E. GU$man
r,,,,,,,r"'"'''~'''''''''~irT<V''
The Honorable Isiah Leggett
Members of the County Council
Montgomery County Council
",100
Maryland Avenue.
Rockville, Maryland 20849
He:
006737
th~
'
..
)
Forest Preservation Legislation
Council:
Treasurer
1.40nle
E.
Newman
Se<;r,··
~Y~J""If\(" ~..,,.(t1c...yt"rI(Y
..
rorY'
...
pear President Leggett and Members of
A. S. McGaul/r,t
.. $
44,,"\~....o"Y'f
Wa~~ington
would like t6
co~ment
6n proposed
l~gisl~tion
Associated Builders , Contractors of hetropolitan
Pa$1
PI;'S'O"":
Gary E.
~S5
_~,.;..a...:!"""""""A>::0I';"
to protect Montgomery County's trees and fbrests (Bills
48-91,
4~-91,
50-91, Subdivision Regulation 91-3 and
Zoning Text Amendment 91015).
Our concerns revolve· around two issues -- the costs
associated with implementing this legislation and the
additional red tape and
bu~eaucracy
required.
The
. estimated price tag including the proposed arborist is in
excess of 5700,000.
The bill should be specific that the
duties of an arborist will be incorporateq into existing
staff functions.
.. '
Having the fee in lieu of afforestation or
reforestation at 30 cents per square foot and the maximum
administrative civil penalty at $1.20 per'squarefoot
irnstead of
10
cents and 30 cents respectively is
.needlessly burdensvme given the current depressed state of'
construction in Montgomery County.
The fees and penalties
'outlined in the state .bill should be implemented and these
,c~n
be reviewed in the future if they are not sufficient.
ABC believes that the requirements
und~r
Maryland's
Forest Conservation Act of 1991 are sufficient to protect
Montgomery County's trees and forested areas and that the
Council should proceed on this premise.
BOARD OF DIRECTORS
Pelt'r
A. Conl0
SIt'Yen
J.
ponoh~
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While recognizing the need to preserve our trees and
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4061 POWDER MILL ROAD G SUITE 120 II CALVERTON. MARYLAND 2070511301-595-9711 III FAX301-595-S71-8
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1.11.13 Testimony Presented By:
Larry Cafritz
1520 Hampden lane, Bethesda
Tree Canopy Bill 35-12
I have been a resident of Montgomery County my entire life and I have a small business that has been
renovating and building homes in existing mature neighborhoods here for over
20
years.
There is no doubt that a well located tree is an amenity and I think we all know the well documented
benefits that trees serve to the environment. I would go so far as to say that any and all trees are good
for the environment...even a dead tree is good for the environment, providing habitat and nutrition to
the earth's creatures. But when mixing trees, homes, human activity and our infrastructure, you have to
step back and understand the complexities of stress and risk on trees in our neighborhoods, no matter
how good they might be for the general environment. One could argue that it is more the beauty of
trees in our neighborhoods that we humans enjoy, as long as we don't have to deal with the expense
and the risk of hazards. This Bill seems to ignore the latter and assumes all private canopy can be and
should be saved, and that any homeowner messing with their own trees should be severely punished.
I would venture to guess that almost your entire constituency in Montgomery County expects and
appreciates having control over their own private trees at their o",":,n risk and expense, while at the same
time, may be upset when a neighbor's attractive tree comes down in a storm or in preparation for a
major improvement. This would be anyone's normal reaction, but this Bill is the not the way to address
it, if you think it needs to be addressed at all.
I am curious .... what is the problem that this Canopy Bill is trying to solve? I am a tree lover and a
builder, but when these old "at risk" trees no longer can survive the stress we as homeowners put them
through, with our roads, sidewalks, driveways, fences, homes, water and sewer lines, gas lines, power
lines, storm water trenches and pits, pesticides, etc., they end up dying and becoming life threatening
hazards. (See Photos C9 and CI0).
The complexity is enormous and the risk can be high when a poorly located tree has to compete with
making major improvements. There is no good reason why a homeowner should be penalized for
disturbing ground under tree canopy over their own private property. Wouldn't it make more sense to
renew our aging and "at risk" tree population that may have to come down when making major
improvements, by replacing them with trees for the future? Why charge a deterrent tax on the
homeowner's tree canopy and discourage making improvements, rather than encourage more tree
planting on site, after the improvements. Safety around our homes is paramount. How many more
dangerous trees have to fall before the few supporters of this bill understand this?
The mechanics of this Canopy Bill are severely flawed and make no sense at all.
Flaw#l: It charges a canopy tax to a homeowner for actually complying with a perplexing storm water
management law requiring
100%
removal of storm water runoff, existing and new, from hitting the
streets and storm drains, when doing major improvements (A creation of the State to protect the Bay
from new home subdivisions, but enforced by the County on major improvements on spot lots in
existing mature neighborhoods). This forces you to ravage a property under any existing tree canopy in
order to trench pipes all over your site and excavate large holes to install drywells, raintanks, infiltration
planting beds and rain gardens from every downspout on your home and from your driveway.
(See
Canopy Bill 35-12 Testimony by Lany Cafiitz 1.17.13
Pagel
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photos C1 through C8). How ironic that one environmental law has the unintended consequence of
killing even more homeowner trees than necessary, when making improvements.
Flaw#2: Whatever canopy tax is received will not even be used for replanting new trees on site, nor is
there any appreciable credit for a homeowner to do so at their own expense. The County says it will use
the money to plant trees in some other location within the same watershed, if it can. How does this help
our neighborhoods under improvement?
Flaw #3: It charges a tax on disturbed area under canopy, whether you remove a tree or not.
Flaw#4: It does not even disclose the tax rate, which is essential to know, in order to even discuss this
Bill.
Flaw#S: There is no grandfather provision or an effective date for permit applications. How is anyone
supposed to continue to plan improvements with this hanging over their heads.
Those people who support this bill may love everyone else's trees as much as I do, especially since we
get to enjoy them at no expense, risk or consequence, but that does not give them, or anyone, the right
to force an excessive and punitive tax on a homeowners private tree loss. There are people that will
argue that there are ways to work around every tree in existence, however impractical, ignoring safety
and consequences.
I encourage you to reject this Bill and, if you really think we need to legislate private trees, write
something that, instead, encourages planting to renew this natural resource for our future.
Did you know that a White Oak will grow a canopy of up to 80 feet wide at maturity? That is over 5,000
square feet of canopy.
Canopy Bill 35-12 Testimony by
Larry
Cafritz 1.17.13
Page 2
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\\
WEST MONTGOMERY COUNTY CITIZENS ASSOCIATION
P.O. Box 59335 • Potomac, Maryland 20854
.Founded 1947
January 17,2013 - Testimony - County Council Public Hearing on Bill 35-12 Trees - Tree
Canopy Conservation and Bill 41-12 Streets and Roads, Roadside Tree Protection
Both of these pieces of legislation are overdue. We've known for a long time
that
trees
are not
just
another pretty face in the landscape. Trees are invaluable to air and water quality.
. They stabilize temperatures, reduce energy costs, contribute to physical and mental health,
increase property values, and
act
as an economic stimulus
to
recreation and tourism. We save
and replant forest through the FCL but we've not done the same for individual trees or stands of
trees. It is time to elevate the value we place on trees by giving them and the canopy they provide
some well earned status. Protective legislation says we care and expect our citizens and
institutions to do the same.
Bill 41-12 brings roadside tree protection closer to home. The State
has
made clear they
cannot and do not enforce the Md. .Roadside Tree Law. An MOU with them would remove
duplication, a 2 week turnaround on the permit eljminates excessive waiting and folding
this
requirement into the existing permit to work in the ROW should eliminate concerns about
another layer of bureaucracy. We need this law so the County can protect our own assets
ourselves.
Bill 35-12 is not as easy to support. Despite assertions
by
Executive
staff
that
stakeholders have been an integral part ofcrafting this bill, many of us feel our concerns have not
been heard. This Bill needs work and this hearing
is
part
ofthe process by which we do
it.
I:ve
attended both Planning Board agenda items on Bill 35-12 and I'm very encouraged by the
discussion Executive staffhad with the Commissioners
this
morning indicating their willingness
to entertain some critically needed amendments. Particularly important is the exemption of Parks
projects as well as allowing additional mitigation options such as credit for protecting trees and
credit for replanting
shade
or significant trees onsite. After
all,
our goal is to replace canopy
when and where we are losing it as well as in already depleted neighborhoods such as the 8% left
in Montgomery Hills. WMCCA support tonight is both preliminary and conditional on
amendments arrived at during
future
discussions. We would welcome being a participant
in
that
process and we'll be joining many ofthe groups testifying for this bill
in
a unified statement and
list we'll provide to the Council before the first T &E Committee work session.
In
our Forest Conservation Advisory Committee (FCAC) meetings, we've discussed the
need to set goals for canopy cover or increasing canopy cover. Montgomery County
has
already
done this with our successful recycling progrnm. Set goals for attainment. Meet them and then set
higher goals. I would note that in Md., the City of Cumberland, despite their alfeady robust
overall canopy of 49% has set a goal to increase it by 35 to 55% by the year 2020. They even
have a Shade Tree Commission. We need goals and a vision for the future.
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\. 'We stilU:iave a:number of unanswered qu,estions. Vlhy are We not counting trees. as part
of our County stormwater management program? Bill 35-12 is designed to take into account our
Countv's altered economic condition, It nronoses imnlementaUQn through a desktop evaluation
and by curbing the cost of additional staff. Can we really properly evaluate the health and
condition of trees on any given property without a more field focused process and site visits?
What about the mitigation rate? Don't monertv owners have a ril!ht to know more about what
they might be expected to pay for
disturbing
canopy?
We do need a tree bill. The time has come. Bv nrotectinlI our tree cover. we can achieve
the success we've had .with the Forest ConservationLaw(FCL). Because of.urbanization and
redevelopment, we are seeing the loss of canopy in neighborhoods where ·tree canopy has
matured. Because ofnast develonment ntactices. we suffer from vast narkinlI lots with no. shade
in sight. 'Replenishing and eilhancing our canopy. will, be an ongoing task. The time is now. The
public wants
it
The climatedesperatelyneedsjt and this bill.hasthepotential to be a good seed .
."
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to 'start lIIowinlI more of
it:
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resnectfullv submitted.;
Ginny
Bames,·Environmental Chair
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\10
Renewing Montgomery Opposes Bill 35-12 Tree Canopy Bill
I represent Renewing Montgomery. Over the years we have met with
numerous citizen associations to discuss the issues associated with infill
development. These meetings have resulted in a
collaborative
approach
to homebuilding, allowing the homeowner, builder, and the community
to understand the issues from the other's perspective.
It
became clear at the meetings that most residents do not understand
the current regulations. We believe it is essential that any new
legislation that impacts existing neighborhoods be presented to the
individual citizen associations to obtain their input
before
proceeding
with implementation.
In our meetings the residents have generally agreed that infill
development is a positive change for older neighborhoods and the goal
should be to minimize the disruption to the community when possible by
making all regulations efficient, consistent, and clear. The sooner the
home improvements are completed, the better it is for all concerned.
The following are reasons why Renewing Montgomery opposes Bill 35-12.
1. The County has always allowed the removal of trees on private
property without any permit or fee requirement. This is a basic
property right. This Bill will impose significant fees on property
owners seeking to improve their homes, and will discourage home
improvements due to the excessive costs.
2. Current common law allows all property owners to remove any
overhanging limb or root that extends onto their property. This bill
takes away this basic property right and imposes an unnecessary
and expensive fee; it is an unnecessary and illegal infringement of
private property rights.
3. In older neighborhoods the complaint is more often there are too
many trees - especially during storms. The clearing of trees to
allow for home improvements helps remove dangerous trees that
have outgrown the allowable space. This bill will add a significant
fee to the cost of removing a tree.
4. This bill will
discourage
home improvements and devalue
properties with existing trees.
5. This bill will
discourage
homeowners from planting trees to avoid
the canopy fee.
6. The trees on private property were planted by the homeowners at
no cost to the County. Some are weed trees that are undesirable.
There is no distinction between a dying poplar and a healthy oak
tree; all are considered valuable canopy - but all trees are not
equal. Over the years they were maintained by the homeowners.
Now the County is imposing a fee to remove them; so in exchange
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for providing the canopy, the County is now requiring another fee
from property owners to improve their property.
7. The fees collected will not replace the trees being removed. The
fees will be used to plant trees somewhere else in the County. This
bill does nothing to replace canopy where it is removed.
8. The canopy
tax
will discourage home improvements that increase
energy efficiency and improve storm water management. New
homes raise property values, stabilize neighborhoods, meet the
needs of today's families, and increase tax revenue. This bill
misses
the big picture
as it is focused only on one environmental
issue, while ignoring all the other benefits of home improvements.
9. This bill will discourage tree removal to accommodate home
improvements.
It
will1ikely cause property owners to not remove
questionable trees creating an unsafe situation that can cause
severe property damage or even death. In addition it costs twice as
much to remove a tree after home improvements are completed.
10.
This bill assumes the entire canopy within the limit of
disturbance will be removed, which is a false assumption not
based on any evidence.
11.
This bill does not give a reasonable credit for trees that are
saved or replanted.
It
does nothing to encourage the planting of
new trees in fact it
discourages tree replacement
to avoid the
canopy tax.
12.
If
the County is truly concerned about tree canopy this
should apply to all property owners regardless if they have a
sediment control permit.
If
tree canopy is a benefit to all residents,
than all the residents should share in the cost to either pay a
canopy fee or replace the trees that are removed.
13.
This bill has not been properly vetted by the numerous
individual citizen associations who will be
severely impacted
by
these new regulations. We suspect that the impetus of this bill is
from a small vocal minority and that if the Council took the time to
obtain input from the citizen associations the majority would
oppose it. Renewing Montgomery would be happy to help
coordinate and attend these meetings so that a thorough
evaluation of the impacts could be considered by those it will
impact.
Any fee required to remove a tree on private property is a tax that will not
achieve the goal of replacing canopy, discourages home improvements, is
contrary to the law, reduces property values, reduces tax revenue, and
does nothing to revitalize older neighborhoods.
For these reasons Renewing Montgomery opposes this Bill and supports
the current law which allows the removal of trees on private property
'wi.thout any permit or fee requirement.
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MEMORANDUM
To:
Transportation, Infrastructure, Energy
&
Environment Committee of the Montgomery County
Council
Takoma Park Mayor and City Council; Daryl Braithwaite, Public Works Director, Todd Bolton,
City Arborist
Susan Silber, City Attorney; Kenneth Sigman, Asst. City Attorney
Request for amendments to and statement of support for Bill 35-12.
January 22,2013
Cc:
From:
Subject:
Date:
We are writing on behalf of the City of Takoma Park to express the City's support for the policy of
promoting tree canopy embodied in Bil135-12 and to request an anlendment to the Bill that would exempt from the
requirements ofthe proposed Montgomery County Tree Canopy Conservation Law acti vitythat is already regulated
by municipal tree preservation legislation that is at least as stringent as the County Law.
The Ci ty ofTakoma Park has long recognized the environmental, economic, and aesthetic benefits that trees
provide and has enacted comprehensive legislation that protects existing trees and requires the replacement oflost
trees. Therefore, the City supports the additional protections to the County's tree canopy afforded by Bi1l35-12.
However, the City is concemed that Bill 35-12 would undennine the City's wen-developed and thorough tree
preservation scheme unless it is amended to recognize municipal authority on this subject and allow for an
exemption from the County Tree Canopy Conservation Law for development activity that is already subject to
comprehensive municipal regulation.
Takoma Park's Tree Preservation Leiislation
The City ofTakoma Park has been on the leading edge oflegis1ative efforts to protect tree canopy for many
years. Chapter 12.12, Urban Forest, of the
Takoma Park Code
("Tree Ordinance"), regulates all acti vity in the City
that may have an adverse impact on the viability of any tree that is at least 24" in circumference, was planted with
government funding, or was required to be planted or maintained pursuant to govemment tree preservation
regulations.
l
Under Bill 35-12, only development activity requiring as sediment control permit would be subject
to the requirements ofthe Tree Preservation Law. However, the City's Tree Ordinance regulates even smaU-scale
like the County, is restricted regarding the regulation ofthe activity ofVerizon
and Pepco, although the City has Memoranda of Understanding with both utilities that requires the
utilities to notify the City of tree work and gives the City Arborist some influence over the activity.
J
Takoma Park,
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activity that could have an adverse impact a protected tree.
2
Under the City's Tree Ordinance, most construction activity within the critical root zone of a protected tree
requires a Takoma Park Tree Protection Plan Permit. The City Arborist aids property owners and their contractors
in the development of a tree protection plan, which must be approved by the City before work can commence. Tree
protection plans prescribe measures to minimize the impact of the construction activity on existing trees. When
proposed activity requires the removal of a tree, a Takoma Park Tree Removal Permit is required.
In developing tree protection plans, the Arborist seeks to minimize the number oftrees that must be removed
as a result of a project and protect the most valuable trees. For example, ifthe project involves the construction of
a new home on a vacant lot, the tree protection plan may mandate changes to the size, shape, and placement ofthe
house, to facilitate the preservation of existing large, healthy trees. For more minor projects, a tree protection plan
may simply require the installation oftree protection fencing to prevent the storage ofmaterials or the parking of
heavy equipment within the critical root zone ofa tree. Tree protection plans also mandate additional measures to
protect remaining trees from the impact of construction. For example, a tree protection plan may require the
applicant to tunnel under tree roots to lay cable, rather than digging a trench through the roots, refrain from using
heavy equipment in the critical root zone ofthe tree to prevent soil compaction that may ldll the roots, utilize gravel
or pervious pavers in lieu of concrete, and provide follow-up watering and treatment against disease for trees that
will be stressed by the construction activity. Applicants must replace trees intended to be saved by the tree
protection plan that die following the activity by planting new trees or paying into the City's tree replacement fund
the cost of planting replacement trees. Replacement trees must be nursery stock trees ofspecified species, and the
number of replacement trees required depends on the size and condition of the tree prior to the activity.
Significant plllning of protected trees also requires a permit, which will not issue for pnming extensive
enough to harm the tree unless conditions make it absolutely necessary.
When someone seeks to remove a protected tree in the City of Takoma Park, they must obtain a Tree
Removal Permit. The City Arborist weighs the reasons for the removal ofthe tree against the benefits of retaining
the tree in ruling on the permit application. If the permit is granted, the applicant must plant replacement trees on
site or pay an amount equal to the cost ofthe replacement trees into the City's Tree Replacement Fund.
Takoma Park's Request for an Exemption
Takoma Park believes that an exemption from Bi1l35-12 for activity in the City would be in the best interest
of the City, the County, residents, and contractors. As discussed above, the City already provides extensive
protection for existing trees and promotes the establishment of additional tree canopy through its Tree Ordinance.
The City has honed
its
Tree Ordinance over decades, and has established an independent administrative body 'to
review tree permit decisions. The City's tree permit process, which involves site visits and the development of
even very minor activity within the critical root zone
of a protected tree r(fquires the property owner or contractor to first have the City Arborist perform a
Tree Impact Assessment to detemline whether the proposed activity is likely to have an adverse impact
on one or more protected trees. For example, building a shed or paving or regrading an area of 25
square feet within the critical root zone of a tree requires a Tree Impact Assessment. If the City
Arborist determines that the proposed activity will not harm the tree(s), the property owner may proceed
with the project. lithe Arborist determines that the activity would have a significant adverse impact
on a tree, then he advises the property owner that a Tree Protection Plan Permit or Tree Removal Permit
will be required.
2
Under Takoma Park's regulatory scheme,
2
@
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individualized tree protection plans by the City Arborist, and a case by case assessment of whether the removal of
a tree is necessary, results in much greater protection to the Takoma Park's tree canopy than Bill 35-12 would
provide. The Takoma Park Tree Ordinance mandates tree-friendly changes to development plans and recognizes
and rewards tree preservation measures and on-site tree replacement (through reductions in tree replacement
requirements and the consideration ofmitigation measures in the granting ofpermi ts). Bill 35-12, on the other hand,
simply imposes a fee based on the area of disturbance of a proposed project.
The City ofTakoma Park is concerned that subjecting development projects in the City ofTakoma Park to
the requirements ofBil135-12 and the City's Tree Ordinance would impose unreasonable substantive and procedural
burdens on developers without providing additional protection to the tree canopy. Under the City's Tree Ordinance,
developers would be required to apply for City permits, develop a site plan that minimizes canopy removal, develop
a tree protection plan to protect the trees remaining on or near the site, and replace or pay the cost of replacing the
trees to be removed. Unless exempted from the County's Tree Canopy Conservation Law, the developer would also
have to document the existing tree canopy for the site and the proposed area ofdisturbance, and then pay a County
fee calculated based on the area ofdisturbance, without regard for the tree preservation, protection, and replacement
measures already mandated by the City of Takoma Park.
The City is also concerned that the imposition of the Montgomery County Tree Canopy Conservation Law
would discourage compliance with the City's carefully tailored Tree Ordinance. First, developers may not realize
that both the City and the County regulate tree removal and replacement, and therefore inadvertently proceed with
development projects without the necessary Takoma Park pen'nits. Second, the City is concerned that the presence
oftwo canopy preservation schemes, and their concomitant procedural hurdles and mitigation expenses, may cause
developers to intentionally disregard the City'S Tree Ordinance.
Our proposed amendment to Bill 35-12, a copy of which is attached, would provide for an exemption from
the Montgomery County Tree Canopy Conservation Law for any activity in a municipality that has enacted tree
canopy conservation legislation that is at least as stringent as the County's Law. The Department of Permitting
Services would be responsible for determining whether a municipal tree canopy conservation ordinance warrants
an exemption from the County Law. In addition, in recognition ofthe ongoing monitoring ofdevelopment projects
performed by the Department ofPern1itting Services and the Planning Department and the County's interest in tree
canopy conservation, the proposed amendment gives both County agencies the authority, at their discretion, to
enforce municipal tree canopy ordinances applicable to projects under their jurisdiction.
Conclusion
For the foregoing reasons, the City ofTakoma Park respectfully requests that Transportation. Infrastructure,
Energy
&
Environment Committee recommend that the County Council enact Bill 35-12 as amended by the attached
proposal.
F:\TAKOMA\TREES\Mol1lgomery County Legis\alion\20\3-01-22 TP
CommenlS
re Bi1135.12.wpd
3
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City of Takoma Park's Proposed Amendments to
BiJl35-12, Trees - Tree Canopy Conservation
55-5. Exemptions.
***
(j)
any activity in a municipality that has enacted
an
ordinance for the preservation.
maintenance and establishment
of
tree canopy that the Department has detennined
is at least as stringent as this Chapter. except that the Department and the
Planning
Board
shall have the authority. concurrent with the municipality's
authority. to enforce yjolations of municipal tree canopy preservation ordinances
relating to activities that would be..mb.ie.Q.t
to
this Chapter
if
not exempted under
~Daragraph.
55-11. Penalties and enforcement.
,. ,. *
(b)
Enforcement action.
The Director of Permitting Services or the Planning Director
may issue a notice of violation, corrective order. stop-work order, or civil citation to any
person that causes or allows a violation orthis Chapter or a municipal tree canopy
preservation ordinance.
The City o/Takoma Park's requested amendments to the Bill are double underlined.