T&E ITEM 2
April 1, 2013
Worksession 3
members should bring their packets from the February 25 worksession, parts
of which are cited in this packet.
Committee members may be asked to retain this packet for future reference.
MEMORANDUM
TO:
FROM:
Transportation, Infrastructure, Energy & Environment Committee
.lJ
Michael Faden, Senior Legislative Attorney
'\'" Amanda Mihill, Legislative Attorney
Worksession 3:
Bill 35-12, Trees
Tree Canopy Conservation
SUBJECT:
Bill 35-12, Trees Tree Canopy Conservation, sponsored by the Council President at the
request of the County Executive, was introduced on November 27, 2012. A public hearing was
held on January 17, 2013, along with Bill 41-12 (see selected testimony, ©29-54).
Transportation, Infrastructure, Energy and Environment Committee worksessions were held on
January 28 and February 25.
Bill 35-12 would:
• 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 the first worksession Executive branch staff presented an overview of Bill 35-12 and
the issues it raises, and answered Committee members' questions. (See Executive staff
presentation, ©63-96.) The Committee did not take any further action on this Bill at that
worksession. At the second worksession, Executive branch staff updated the Committee on
discussions they have had with various stakeholders on key issues. Major policy issues raised in
testimony and other correspondence are addressed below. Council staff will cover more detailed
and technical issues in the memo for the next worksession.
Circle numbers from 29-101 may be cited in this memo but are not included in
it.
They
are included in the February
25
Committee packet. which Committee members should bring to
this worksession. This was done to save a few trees.
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Issues for Committee Discussion
How do other jurisdictions handle tree canopy protections?
At the February 25 worksession,
Committee members asked Executive staff to research other jurisdictions that have tree canopy
laws and compare them to Bill 35-12. The response from DEP staff is on ©146-158. As DEP
staff noted when it transmitted this material:
This was not any easy task due to the wide variability and complexity of laws in other
jurisdictions (imagine someone trying to interpret our Forest Conservation Law, which
still sometimes confuses County staff). However, we hope this gives an indication that
(1)
other jurisdictions have enacted tree protection programs and (2) the approach to
doing this varies greatly.
DEP staff also transmitted a USDA Forest Service Study on urban tree canopy retention (see
©136-145). DEP staff noted that:
This study analyzed the recent change in the urban tree canopy in 20 jurisdictions across
the country. Clearly, some of the results of this study would not be applicable to more
rural areas of the County, but I think it is applicable in the more urbanized areas (which
are increasing). The conclusion notes "Despite various and likely limited tree planting
and protection campaigns, tree cover tends to be on the decline in U.S. cities while
impervious cover is on the increase. While these individual campaigns are helping to
increase or reduce the loss of urban tree cover, more widespread, comprehensive and
integrated programs that focus on sustaining overall tree canopy may be needed to help
reverse the trend of declining tree cover in cities."
Is the regulatory approach outlined in Bill 35-12 an appropriate way to manage the County's
tree canopy?
Many organizations and speakers questioned different aspects of the regulatory
approach behind Bill 35-12. For instance, Renewing Montgomery and Kenneth Bawer argued
that if the County's goal is to retain tree canopy, the law should apply to all property owners
regardless of whether they need a sediment control pennit. The Maryland National Capital
Building Industry Association (BIA) and attorney Timothy Dugan argued that properties that are
subject to the forest conservation law should not be subject to a tree canopy law.
Committee members may wish to discuss the following questions with Executive staff and other
stakeholders:
• Proposed §55-9(a) (see ©12, lines 279-283) provides that the objective of the bill is
to retain existing trees and that "every reasonable effort should be made to minimize
the cutting or clearing of trees and other woody plants ... " Is this language intended
to be a broad policy goal, or is it intended to function as a substantive regulatory
standard?
• Why does Bill 35-12 apply only to properties that must obtain a sediment control
pennit? Why not apply the Bill to all properties? Or trigger the restrictions after a
particular amount of tree canopy is disturbed?
• How would this Bill overlap the forest conservation law? Will most properties that
are subject to the forest conservation law also be subject to the tree canopy law?
Should properties subject to the forest conservation law be exempt from the tree
2
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canopy law? Under Bill 35-12, any tree canopy that is identified as part of a forest in
a natural resources inventory/forest stand delineation and subject to a forest
conservation plan would not have to pay mitigation fees.
• Bill 35-12 would not require replacing tree canopy where it is removed (i.e., the bill
does not require on-site replacement when possible). Should it?
• Bill 35-12 would set a fee based on all canopy within the limits of disturbance,
regardless of how much canopy is actually removed. Should the fee structure be set
according to how much canopy is removed?
Should Bill
35-12
set canopy goals?
Many organizations, including Conservation Montgomery
and West Montgomery County Citizens Association, urged that Bill 35-12 be amended to
include specific tree canopy goals. Some individuals suggested establishing a no-net loss tree
canopy goal; other organizations suggested setting a countywide goal of 55%, with a minimum
goal of 40% in all areas evaluated in a county tree canopy assessment.
What
is
the appropriate fee level?
Bill 35-12 would require the payment of a mitigation fee set
by Method 3 regulation. The fee would not be applied to the first 5% of the area of tree canopy
disturbed and, as already mentioned, would not apply to canopy subject to forest conservation
law restrictions. When Committee members pressed for proposed fee levels, DEP staff offered a
fee scale based on the forest conservation law's fee-in-lieu payment ($1.05 at 40,000 square feet)
(see
©
128-135). Some environmental groups, including Conservation Montgomery, urged DEP
to set a fee that is high enough to provide incentives to save trees or cover the cost of
replacement. The Planning Board was concerned that Bill 35-12 does not set a specific
mitigation rate.
Some environmental organizations and
representatives of the building community seem to agree in theory regarding credits for on-site
planting. Conservation Montgomery recommended a 25% canopy fee credit for trees replanted
on site (the higher the fee, the higher the level of credit that should be allowed) and a tree
protection credit for unusual efforts to save trees on site. Larry Cafritz said that there should be
an appreciable credit for homeowners to replant onsite. The Planning Board argued for a credit
for protecting individual trees and their critical root zone and for replanting on site.
Additionally, BIA expressed concerns that Bill 35-12 does not include a credit for stormwater
management structures that builders install on lots to capture stormwater. These structures can
impact trees.
Just before this memo went to print, DEP staff submitted an outline of a potential credit program
for tree protection and tree planting (see ©159-161).
What mitigation credits should be available?
Should the Parks Department be exempt from Bill
35-12? The County Planning Board and
many environmental organizations raised a concern that Bill 35-12 would not exempt the Parks
Department from its requirements. As Board Chair Carrier noted in her letter on
©31-32,
many
park capital projects involve work under tree canopy and the Department strives to avoid,
minimize, and mitigate the negative effects of park projects on native tree canopy. At the
February 25 worksession, Executive staff noted that although they were willing to amend Bill
35-12 to assure that the fee the Parks Department pays would be directed back to the Parks
system, they concluded that the Parks Department should not be exempt entirely from the bill.
3
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What other exemptions should be allowed?
Several organizations or individuals requested
certain exemptions from the Bill's requirements:
• As drafted, Bill 35-12 would exempt any tree nursery activity performed with an
approved Soil Conservation and Water Quality Plan (see ©6, line 121-123). The Soil
Conservation District and the Agricultural Advisory Committee would broaden this
exemption to include any agricultural or conservation activity performed with an
approved Soil Conservation and Water Quality Plan (see ©112-115).
• Bill 35-12 would exempt any non-coal surface mining conducted in accordance with
applicable state law (see ©7, lines 149-150). Tri-State Stone and Building Supply
requested the Council to amend the law to specifically exclude quarry operations (see
letter from Linowes and Blocher, ©119-121).
Other issues for Committee consideration
• Tree Conservation Fund
Environmental and builder representatives raised concerns about
the Tree Conservation Fund.
Conservation Montgomery and Ashton Manor
Environmental urged that the Bill be amended to assure that the fund is not used for
salaries and other administrative expenses.
• Should onsite inspections be required?
Conservation Montgomery and Neighbors of the
Northwest Branch urged the Bill to require onsite inspections using existing Permitting
Services inspection processes.
• Which
if
any projects should be grandfathered?
Both attorney Timothy Dugan and Larry
Cafritz requested that Bill 35-12 grandfather existing projects. The Bill does not
specifically provide when
it
would take effect or how it would apply to projects that filed
applications for sediment control permits or forest conservation law approvals before the
Bill takes effect.
This packet contains:
Bill 35-12
Legislative Request Report
Memo from County Executive
Fiscal and Economic Impact Statement
Circle
#
1
19
20
22
29
63
97
In February
25
Committee packet
Selected testimony and correspondence
Executive staffpresentation
County Attorney opinion
In this packet
More selected testimony and correspondence
Revised Executive staff presentation with proposed fee levels
USDA Forest Service Study on urban tree canopy
Summaries of selected tree laws in other jurisdictions
DEP outline of potential credit program
F:\LAW\BILLS\1235 Tree Canopy Conservation Program\T&E Memo 3.Doc
102
122
136
146
159
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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: -'-'-""-'-"'--,---,---_ _ __
ChI _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President at the Request of the 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 mmlmlze 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 oftrees, 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 unqffected by bill
The County Council for Montgomery County, Maryland approves the following
Act:
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BILL
No. 35-12
1
Sec.
1.
Chapter 55 is added as follows:
Article 1. Purpose and General Provisions.
55-1. Short title.
2
3
4
5
6
This Chapter may be cited as the Montgomery County Tree Canopy
Conservation Law.
55-2. Findings and purpose.
7
8
ill
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
~
9
10
11
12
13
14
15
result of development
and other land disturbing activities is
~
serious problem in the County.
16
17
®
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;
~
18
19
20
21
result of
22
23
24
@
provide for mitigation when tree canopy is lost or disturbed;
and
(J)
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BILL
No. 35-12
25
26
27
ill
establish
~
fund for tree canopy conservation projects, including
plantings of individual trees, groups of trees, or forests, on
private and public property.
28
29
30
31
32
33
34
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
~
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.
35
36
37
38
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.
39
40
Forest conservation plan
means
~
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.
41
42
43
44
45
Land disturbing 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.
46
47
48
49
50
Limits of disturbance
means
disturbance is planned to occur.
~
clearly designated area
III
which land
G)
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BILL
No.
35-12
51
52
53
54
55
Limits of tree canopy disturbance
means all areas within the limits of
disturbance where tree canopy or forest exists.
Lot
means
~
tract of land, the boundaries of which have been established
Qy
subdivision of
~
larger parcel, and which will not be the subject of further
subdivision, as defined
Qy
Section 50-1, without an approved forest stand
delineation and forest conservation plan.
Mandatory referral
means the required review
Qy
the Planning Board of
56
57
58
59
60
61
62
63
projects or activities to be undertaken
Qy
government agencies or private and
public utilities under Section 20-302 of the Land Use Article of the
Maryland Code.
Natural resources inventory
means
~
collection and presentation of data on
the existing natural and environmental information on
~
site and the
surrounding area proposed for development and land disturbing activities.
Person
means:
64
65
66
67
W
To the extent allowed
Qy
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;
68
69
®
i£)
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
70
71
72
73
74
75
76
@
Any other entity..
Planning Board
means the Montgomery County Planning Board of the
Maryland-National Capital Park and Planning Commission, or the Planning
Board's designee.
G
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BILL
No,
35-12
77
78
Planning Director
means the Director of the Montgomery County Planning
Department or the Director's designee.
Preliminary plan of subdivision
means !! plan for !! proposed subdivision
or resubdivision prepared and submitted for approval
Qy
the Planning Board
under Chapter 50 before preparation of!! subdivision plat.
Project plan
means !! plan or an amendment to
!:!
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.
Qualified professional
means
!:!
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 Maryland Regulations or any
successor regulation.
Retention
means the deliberate holding and protecting of existing trees and
forests on the site.
Sediment control permit
means!! 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 !! single ownership, or contiguous and under .diverse
ownership, where development is performed as part of !! unit, subdivision, or
project.
Site plan
means !! plan or an amendment to
!:!
plan approved under Division
59-D-3 of Chapter 59.
Special exception
means!! use approved under Article 59-G of Chapter 59.
Subwatershed
means the total drainage area contributing runoff to
!:!
single
point, and generally refers to the 8-digit hydrologic unit codes.
79
80
81
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83
84
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90
91
92
93
94
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96
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102
@
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\8'110
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I
L
.
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Bill NO. 35-12
103
104
105
106
107
108
109
110
Technical Manual
means
~
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.
Tree Canopy Conservation Fund
means
~
~
site
special fund maintained
~
the
111
112
113
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.
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
~
law to· obtain
~
sediment control permit.
55-5. Exemptions.
This Chapter does not apply to:
(ill
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
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
22A;
!£)
cutting or clearing trees in
~
public utility right-of-way for the
construction or modification of electric generation facilities approved
under the Maryland Code Public Utilities Article if:
®
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BILL
No.
35-12
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
ill
the person cutting or clearing the trees has obtained
~
certificate
of public convenience and necessity required under Sections 7­
207 and 7-208 of the Public Utilities Article; and
ill
@
the cutting or clearing of forest or tree canopy is conducted so as
to minimize the loss of both;
routine maintenance or emergency repairs of any facility located in
public utility rights-of-way;
ill
routine
or emergency maintenance
of an existing stonnwater
management facility, including an existing access road, if the person
perfonning the maintenance has obtained all required pennits;
.en
{g}
any stream restoration proj ect if the person perfonning the work has
obtained all necessary pennits;
the cutting or clearing any tree
!2y
an existing airport currently operating
with all applicable pennits 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
~
hazard to aviation;
{h}
cutting or clearing any tree to comply with applicable provisions of any
federal, state, or local law governing the safety of dams; or
ill
any non-coal surface mining conducted in accordance with applicable
state law.
Article 2. Tree Canopy Conservation Requirements, Procedures, and
Approvals.
55-6. Tree Canopy
=
General.
ill
Submissions.
A person that is subject to this Chapter must submit to
either the Director of Pennitting Services or the Planning Director the
following infonnation on the amount of disturbance of tree canopy.
(j)
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BILL
No. 35-12
157
158
159
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161
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165
166
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169
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183
@
ill
Any person required
Qy
law to obtain
£!
sediment control permit
for land disturbing activity that is not subj ect to Chapter 22A
must submit
£!
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
£!
limits of tree canopy disturbance concurrently with
any other plan required under Chapter 22A to the Planning
Director under Section 55-8.
(hl
Timing
gf
submissions.
The person must submit the limits of tree
canopy disturbance for review in conjunction with the review process
for
£!
sediment control permit, forest conservation plan, development
plan, project plan, preliminary plan of subdivision, site plan, special
exception, or mandatory referral. If
£!
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-l O.
ill
Incomplete submissions.
The Director of Permitting Services or the
Planning Director must not approve an incomplete submission.
Review
gf
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.
W
Coordination
gf
review.
The Director of Permitting Services and the
Planning Director may coordinate the review of any information
submitted under subsection
Uti
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.
W
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BILL No. 35-12
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185
186
187
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190
191
192
193
194
195
196
197
198
199
200
201
ill
Time frame
Q[
validity.
An
approved limits of tree canopy disturbance
submission remains valid for:
ill
not more than
2.
years unless the Planning Director has approved
either
£
final forest conservation plan or preliminary forest
conservation plan that includes the limits of tree canopy
disturbance;
ill
not more than
2.
years unless
£
sediment control permit has been
issued
Qy
the Director of Permitting Services and remains valid;
or
ill
{g}
.2.
years
if the accuracy of the limits of tree canopy disturbance
has been verified
Qy
£
qualified professional.
Issuance
Q[
sediment control permit.
The Director of Permitting
Services must not issue
£
sediment control permit to
£
person that is
required to comply with this Article until:
ill
the Planning Board or Planning Director, as appropriate, or the
Director of Permitting Services has approved an applicant's
limits of disturbance; and
ill
the applicant
J2.ID].
any fee required under this Article.
202
203
55-7. Tree Canopy
=
Submissions to the Director of Permitting Services.
.cru
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
Qy
the proposed activity.
204
205
206
207
208
209
210
(hl
Incorporation
Q[
limits
Q[
tree canopy disturbance.
The limits of tree
canopy disturbance information for the subject property must be
incorporated in
£
sediment control permit or the site plan submitted for
£
building permit.
@
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BILL
No. 35-12
211
212
213
214
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216
217
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223
224
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!.f)
The limits
gf
tree canopy disturbance.
The limits of tree canopy
disturbance information for the subject site must include:
ill
~
map delineating:
the property boundaries;
the proposed limits of disturbance including any off-site
areas;
fA)
ill)
(g
the aerial extent of existing tree canopy cover on the
subject site,
!ill
to 45 feet beyond the proposed limits of
disturbance;
CD)
the intersection of aerial extent of existing tree canopy
cover and the limits of disturbance; and
ili2
ill
~
any additional information specified
Qy
regulation; and
table summarizing the square footage of:
the property;
the limits of disturbance of the proposed activity;
the aerial extent of existing tree canopy cover;
the limits of tree canopy disturbance; and
any additional information specified
Qy
regulation.
The Director of
fA)
ill)
(g
@
ili2
@
Modification to limits
gf
tree canopy disturbance.
Permitting Services may approve
of tree canopy disturbance if:
~
modification to an approved limits
ill
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.
®
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BILL
No. 35-12
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240
241
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244
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248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
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ill
Qualification gjpreparer.
If
~
tree canopy cover layer developed
Qy
the
County is available and is used without alteration,
~
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
Qy
~
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 oftree canopy to be disturbed
Qy
the proposed
activity. The Planning Director may use the information to identify the
most suitable and practical areas for tree conservation and mitigation.
(Q)
Limits
gf
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.
i£)
incorporation
gf
the limits
gf
tree canopy, the natural resources
inventory/fOrest 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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@
Modification to limits
Q[
tree canopy disturbance.
The Planning
Director may approve
£!
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 (or special exception.
If
£!
special exception application is
subject to this Chapter, the applicant must submit to the Planning 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.
til
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
£!
subdivision plan, grading and sediment control
activities, and implementation of the forest conservation plan.
ihl
Fees paid (or mitigation.
Mitigation required to compensate for the loss
.Q£
or disturbance
~
tree canopy must take the form of fees set
Qy
~
regulation under Method
which the applicant
Pill
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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BILL
No. 35-12
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forest delineated in an approved natural resources inventory/forest stand
delineation and subject to
£
forest conservation plan is not subject to
mitigation fees under this Chapter.
Article 3. Enforcement and Appeals.
55-10. Inspections and notification.
.vu
(hl
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.
Plan to be on site; field markings.
A
~
of the approved limits of
tree canopy disturbance must be available on the site for inspection
Qy
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.
ill
Inspections.
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.
!
of Chapter 19 for any
inspections
m
ill
The
Planning Director must
conduct field
concurrently with inspections required for
£
forest conservation
plan for any activity subject to Section 55-8.
The Director of Permitting Services or the Planning Director
may authorize additional inspections or meetings as necessary
to administer this Chapter.
314
315
316
317
318
@
Timing qf inspections.
The inspections required under this Section
must occur:
@
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BILL
No. 35-12
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ill
ill
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.
W
Scheduling requirements.
A person must request an inspection by:
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.
ill
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 55-7
and the Planning Board has enforcement authority for any .activity
approved under Section 55-8.
Enforcement action.
The Director of Permitting Services or the
~
336
337
338
339
340
341
342
343
344
345
(Q)
Planning Director may issue
notice of violation, corrective order,
stop-work order, or civil citation to any person that causes or allows
~
violation of this Chapter.
i£}
Civil penaltv.
The maximum civil penalty for any violation of this
Chapter or any regulation adopted under this Chapter is $1,000. Each
day that
~
violation continues is
~
separate offense.
®
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BILL
No.
35-12
346
347
348
349
350
@
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
Qy
351
352
353
354
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
Qy
the Planning Director:
355
356
357
358
359
360
361
362
363
364
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
Qy
~
conservation
easement, deed restriction, covenant, or other appropriate legal
instrument; or
365
366
367
ill
(hl
submit
~
written report or plan concerning the violation.
Effectiveness
g.f
order.
An order issued under this Section is effective
when it is served on the violator.
.
Article 4. Administration
368
369
55-13. General.
370
371
ill
Regulations.
The County Executive must adopt regulations, including
technical manuals, to administer this Chapter, under Method 2. The
@
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BuNo.35-12
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381
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385
regulations must include procedures to amend
disturbance.
(Q}
~
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
ill
i.£l
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
386
387
388
389
390
391
392
393
394
395
396
397
398
may each,
121
Method
2.
regulation, establish
f!:
schedule of fees to
administer this Chapter.
@
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.
(£}
Comprehensive
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,
@
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BILL No. 35-12
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401
402
403
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406
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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
f!
person to submit an application for
f!
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
f!
sediment
control permit; and
ill
later disturbs additional tree canopy or land on the same
property, or
Qy
any other means, such that in total,
f!
sediment
control permit would be required.
411
412
413
55-14. Tree Canopy Conservation Fund.
W
General.
There is
f!
County Tree Canopy Conservation Fund. The
Fund must be used in accordance with the adopted County budget and
as provided in this Section.
414
415
416
417
418
419
420
421
422
423
424
425
ihl
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
f!
site within the same subwatershed where the
disturbance occurs.
W
Fines paid into the Tree Canopy Conservation Fund.
Any fines
collected for noncompliance with
f!
limits of tree canopy disturbance
®.
F:\LAW\BILLS\1235 Tree Canopy Conservation Program\BiU I
Docx
.
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BILL
No. 35-12
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448
or forest conservation plan related to tree canopy disturbance must be
deposited in
§!
separate account in the Tree Canopy Conservation
Fund. The Fund may be used to administer this Chapter.
@
Use
gf
the Tree Canopy Conservation Fund.
ill
Any fees collected for mitigation must be used to:
®
ill}
establish tree canopy;
enhance existing tree canopy through non-native invasive
and
native
InVaSIVe
speCIes
management
control,
supplemental planting, or
§!
combination of both;
(Q
ill)
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.
ill
The canopy established under paragraph
(1)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
§!
project must occur in the subwatershed where
the project is located. Otherwise the tree canopy may be
established anywhere in the County_
@
F:\LA\V\B1LLS\1235 Tree Canopy Conservation Program\Bill IDocx
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•• _ _ _ _ _ " - - -.... _ _ _ _ ............. _ _ _ _ _ • _ _
~.
_ _ _ h
------~.---~
-
..
_ _ _ " _ .____
.,~
. .
--~.---~~---~---.---.--~--
LEGISLATIVE REQUEST REPORT
Bill
DESCRIPTION:
~·12
Tree Canopy Conservation
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 currently 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:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
The Forest Conservation Law, Chapter 22A of the Montgomery
County Code, requires mitigation when forest land and/or champion
trees, as well as certain other vegetation, are disturbed.
Stan Edwards, Division Chief, Division of Environmental Policy and
Compliance, Department of Environmental Protection (7-7748)
This bill applies to all municipalities if the land disturbing activity
requires a sediment control permit under Chapter 19 of the
Montgomery County Code that is approved and enforced by the
Department of Permitting Services.
Class A
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--,,---------------- ---
-.-=======~-=-=-=-=--===-=---~5iiiili>-
---­
_ _ ••••
~_~
_ _
~
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _
~N
OFF1CE OF THE COUNTY EXECUTIVE
R.OCKVILLE. MARYLAND 20850
fsiah Leggett
County Executive
MEMORANDUM
October 25,2012
TO:
Roger Berliner, President
County Council
FROM:
-Q~
Isiah
Leggett
e:::::::::»"
County Executive
SUBJECT:
~
~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 permit is required under
Chapter 19 ofthe Montgomery County Code and the trees are not subject to the County's Forest
Conservation Law (FCL). The bill requires the fees to be used to plant new trees to mitigate the loss of
benefits that were provided by the disturbed tree canopy.
When the FCL was adopted,the majority ofdevelopment in the County was occUlTing on
large, previously undeveloped parcels, much of which was forested. The FCL was intended to provide
compensation for the loss of forested land through the long-term protection of undisturbed forest or the
planting of new forests. As the amount of undeveloped land in the County has diminished, the majority
of development is now occurring on smaller, previously undeveloped "in-fill" properties or as the result
ofredevelopment of previously built-out sites. While these parcels contain few forests, they often contain
significant tree canopy due to the presence of indi vidual 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 stortnwater, and generally increasing the economic
value ofthe property. However, the majority of these trees are
110t
covered under the FCL and, as a
result, there is no mechanism requiring compensation for the loss of these trees.
The Tree Canopy Conservation Program would be implemented by the Department of
Permitting Services or the Montgomery County Planning Department, depending on the nature of the
development activity. The process has been designed to be as streamlined as possible by incorporating
tree canopy review into the existing sediment control permitting process or the existing FCL review
process. The bill outlines the process for detemlining the extent of dishlrbed tree canopy subject to
regulation, but the specific fee structure would be set by regulation.
montgomerycoun
tymd.gov/311
240-773-3556
TrY
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~
._~~._
·~
_ _ •... _ _
M_..~~·
_ _-.-.. _ _ _
..
_"~
,~
__ _
__._•.__
~.
__
._"_~
___._•••._ •••.
,h~'_~""_"
_ _" _
_• ____
·._N..____·__·___
~_~
_____ __.·.___________ ___·.
. . ____._.__
~
·~
._~_.~.
___
~
__ '___."._,....._.._.
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.hovt@montgomerycountymd.gov.
Attachments (4)
c.
Bob Hoyt, Director Department ofEnvironmental Protection
Joe Beach, Director, Finance Department
. --.Kathleen Bouchel=, Assistant ChiefAdministrative·Officer-.,--" ...
Marc Hansen, County Attorney
Diane Jones, Director, Department ofPennitting Services
Jennifer Hughes, Director, Office ofManagement and Budget
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ROCKVILLE, MARYLAND
MEMORANDUM
September 2S, 20
J2
TO:
FROM:
SUBJECT:
Timothy L. Fir}!'
e Chief Administrative Officer
Jennifer A, Hugll , nector, Office of Management and Budget
10seph
F.
Beach irector, Department of Finance
Bill XX·12 -
Tree Canopy Conservation
Please find attached the fiscal and economic impact statement for the above-referenced
legislation.
1AH:ms
Attachment
c:
Kathleen Boucher, Assistant Chief Administrative Officer
Lisa Austin, Offices
of
the County Executive
Joy Nurmi, Special Assistant to the County Executive
Patrick Lacefield, Director, Public Information Office
Michael Coveyou, Department of Finance
David Platt, Department ofFinance
Stan Edwards, Department
ofEnvironm~ntal
Protection
Barbara Comfort. Department of.Permitting Services
Reginald Jetter, Department ofPennitting Services
Alex Espinosa, Office ofManagement 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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-
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---.....--
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_.,-------
-
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---.~--.-.,.
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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 ofPennitting 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 information, assumptions, and methodologies used.
DEP has indicated that new work created as a result of this 1egislation (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
1
include:
• Development of a planting plan (One-time investment of20 work hours)
• Annual Report development (20 work hours)
• Development of a Fee Schedule (One-time investment of40 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
fme
assessments of tree
canopy disturbance of approximately $67,118 annually in the following work areas:
500 additional inspection and assessment projects ($25,752/annually)
• Permit Technicians (250 work hours): $8,878
(.5 Hrs each project@ Grade 19 midpoint salary of $56,828 plus benefits
2
or $35.5lnlT)
• Permit Services SpecialistslPlan Reviewers (125 work hours): 56,166
(.25
Hrs
each project @ Grade
26
midpoint salary
of$78,929 plus
benefits or $49.331hr)
• Inspectors (250 work hours); 510,708
(.5
Hrs each project @ Grade 23 midpoint salary of$68,531 plus benefits or $42.S31hr)
200 additional complaints relating to tree loss ($41,366/annuaUy)
• Permit Technicians (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.
t
1
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------.~
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---~----
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---.-'~~---
--------~~,
• Inspectors (800 work hours): $34,264
(4 Hrs each project@Grade23 midpoint salary of$68,531 plus benefits or $42.831hr)
Revenues resulting from this legislation will depend on the determination of a rate model
for tree canopy disturbance fees. The rate model will be established via method 2
regulation.
3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
DEP has indicated that new work created as a result of this legislation (tree canopy
restoration activities) will have costs that will correlate to the amount of received fees.
While the cost of future work is not
known~
DEP has asserted that any future costs related
to tree canopy restoration activities will not exceed collected fees.
DPS reports future expenditures of approximately $62,118 annually (as explained above).
The total six-year expenditures for DPS are approximately $402,708.
M-NCPPC reports annual expenditures of $12,480 with a one-time startup charge of
$3,600 to implement the planning and implementation plan for the bill (as explained
above). Total six-year expenditures for M-NCPPC are approximately $78,480.
Revenues resulting from this legislation will depend on the determination of a rate model
for tree canopy disturbance fees. The rate model will be established via method 2
regulation.
4. An actuarial 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 expenditures 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 alld 60 hours
to start up the program in the first year of implementation.
7. An explanation
of
how the addition of new staff responsibilities would affect other
duties.
2
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While DEP does not expect the need for additional stafftime to implement the bill, the
actual impact on staff will depend on the extent
of
tree canopy restoration activities
as a result of implementing the bill.
DPS reports that the bill would impact both the workload of pennitting staff and permit
reviewing staff. Estimates for costs of additional work are provided above.
M~NCPPC
reports that the bill would impact the workload of forest conservation
planners. Estimates for costs of addition work are provided above.
8. An estimate of costs when an additional appropriation is needed.
Not applicable.
9.
A
description of any variable that could affect revenue and cost estimates.
DEP has indicated that costs and revenues relating to tree canopy restoration will be
dependent on the amount of fees received. The rate model for fees will be established by
method 2 regulation.
Article IV, Section 55-13(c) allows for the establishment of a fee for administering the
program;" this fee would be adopted under method 3.
An
administrative fee has not been
established but could impact revenue and cost estimates.
Article III, Section 55-11(c) establishes a maximum $1,000 civil penalty for violation of
the proposed legislation. Fines would be deposited into the Tree Canopy Conservation
Fund and could be used to implement any part of the bill. Estimates of revenue from
these fines are difficult to predict without knowing the extent ofthe violations.
10. Ranges of revenue or expenditures that are uncertain or difficult to project.
DEP has indicated that costs and revenues relating to tree canopy restoration will be
dependent on the amount of fees received. The rate model for fees will be established by
method 2 regulation.
Article IV, Section 5S-13(c) allows for the establislllllent of a fee for administering the
program; this fee would be adopted under method 3.
An
administrative fee has not been
established but could impact revenue and cost estimates.
Article III, Section 55-11(c) establishes a maximum $1,000 civil penalty for violation of
the proposed legislation. Fines would be deposited into the Tree Canopy Conservation
Fund and could be used to implement any part of the bill. Estimates of revenue from
these fines are difficult to predict without knowing the extent of the violations.
11.
If
a bilJ is likely to have no fIScal impact
t
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 Pelmitting Services
Reginald Jetter, Department of Permitting Services
Rose Krasnow, rvtNCPPC
Amy Wilson, Office of Management and Budget
Matt Schaeffer, Office of Management and Budget
Naeem Mia, Office of Management and Budget
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 contTol pemnt is required under
Chapter 19 of the Montgomery County Code and the trees are not subject to Article II of Chapter
22A. The bill supplements the Forest Conservation Law (FeL). 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 bi1l 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 permit, and the market conditions at the time of
development. The cost of development for each property will be affected by the amount of tree
canopy disturbed times the fee.
3.
The Bill's positive or negative effect, if any on employment, spending, saving,
investment, incomes. and property values in the County.
The bill may increase the cost for developing some properties, and those costs may affect the
gross profit 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 c1ear 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 {
Ii
2
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Circles 29-101 arefound in the February
25
Committee packet
and are not reprinted in this packet.
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Testimony of Diane Cameron
Before the Montgomery County Council
on behalf of the Montgomery County Stormwater Partners Network
on Bills 35-12 (Tree Canopy Conservation) and 41-12 (Roadside Trees)
January 17,2013
Good evening, I am Diane Cameron, Coordinator of the Montgomery County Stormwater Partners. On
behalf of the Stormwater Partners, whose 22 member organizations support improved water quality in
Montgomery County, I am here tonight to give support to these two bills - the Tree Canopy and
Roadside Tree bills, and to generally support the direction of further improvements that several
Stormwater Partners member groups have requested for the Tree Canopy bill.
We support initiatives that will increase the tree canopy in Montgomery County, as essential to
the health of our local streams and to the success of our stormwater permit.
A
The intent of these two bills is to reverse the trends in massive tree canopy losses
in
Montgomery County; we support this intent.
J...
We strongly support the Street Tree Bill, since our street trees are unacknowledged stormwater
managers, that kept healthy and replaced when lost so they can help keep our streams healthy.
A
The Planning Board and others have highlighted the need to amend the Tree Canopy bill in
order to correct some gaps. We have listed below a set of 6 improvements to the Tree Canopy
Bill. We look forward to having the chance to provide further input in the next few weeks.
A
The Tree Canopy bill, 35-12, provides mitigation in the form of fees and replanting to be done by the
County, for loss or damage to trees not otherwise covered by the existing Forest Conservation Law.
The Street Tree bill, 41-12, seeks to deter the wanton removal of roadside trees through requiring a
permit for actions that would damage such trees. Taken together, these bills will help to slow the loss
of Montgomery's tree canopy. The paying offees to mitigate and replace lost trees might if the fees
are high enough - serve as a deterrent to reckless tree-cutting. Permits such as those in the Street tree
bill, create a mechanism to scrutinize proposed actions and ensure they are proper.
Particularly in the downcounty area, the loss of urban trees has been alarming in recent years. We
appreciate that Department of Environmental Protection (DEP) staff worked hard on these bills, as
have several key individuals and member organizations of the Stormwater Partners, and we applaud the
efforts of all who have gotten us this far in the very difficult process of protecting street trees and the
urban tree canopy.
Attached to my written testimony is the Stormwater Partners' position summary, listing the 12-point
agenda for improvements to the Stormwater Permit. Point number 8 reads:
"Require actions to protect and restore forested stream buffers and other forested areas,
linked to a strengthened county Forest Conservation Law."
The reason we included protection and restoration of forested areas in a stormwater agenda, is that
trees, groves and forests are by far our best, most cost-effective stormwater managers. In fact, we have
asked DEP to work with us to pilot-test several tree-based stormwater management practices, because
they are the most effective, multifunctional, and least expensive approach to runoff reduction.
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Improvements to Bill 35-12 requested by the Conservation Montgomery, (among other
organizations): items 1 through 3 are requested by the Montgomery County Planning Board:
1.
Parks stewardship projects need to be exempt, as are DEP's own stewardship projects.
2.
Additional mitigation options must be identified. For instance, Homeowner or builder
should have the option to replant onsite themselves approved native species. Also, builders
could be given stormwater retention credit for trees that they plant on a building site.
There is ample evidence that trees are the most cost-effective stormwater management
measures. In fact, Audubon Naturalist Society and Conservation Montgomery have proposed a
St0l111water-Tree Practice Specification to DEP and the Department of Permitting Services. We
crafted this Stormwater-Tree Practice in close coordination with local builders.
3.
The mitigation rate is still unlmown and needs to be determined.
4.
Set a countywide canopy goals (we think 55 to 60% is the :range for the canopy goal, mth
minimum goals of 40% in all areas evaluated in the county tree canopy assessment used by the
Planning Department)
5.
Bill 35-12 proposes to delegate Department of Permtting Services (DPS) with a new role
in implementation of tree canopy regulations, yet DPS is not prepared for this new role.. There
must be an International Society for Arboriculture (ISA)-certiiied arborist within DPS. If an
ISA-certitied arborist is assigned with duties under the provisions in Bill 41-12, perhaps the
same professional can administer the urban canopy legislation.
6.
The maximum civil pena1ty of $1 ,000 is far too low. The penalties should be increased
along with setting a substantial cost for demolition of mature tree canopy.
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8601
Georgia Ave. Suite
612 •
Silver Spring,
MD 20910 • 301.608.1188
WWw.potomac.org
TESTIMONY OF
HEDRICK BElINI EXECUTIVE DIRECTOR
POTOMAC CONSERVANCY
January 17,2013
Thank you for the opportunity to speak tonight. My name is Hedrick Belinl and I live in Silver
Spring Maryland. I'm also fortunate to lead the Potomac Conservancy which has nearly
4 /000
membersl including
1/000
in Montgomery County. We fight every day to safeguard the
Potomac River and its surrounding lands through conservation and advocacy.
Our message tonight is simple - trees matter.
Trees matter to people l to our communities and to our economy.
• Trees improve water quality by absorbing rain water where it falls and cost-effectively
filtering polluted runoff before it reaches our local creeks and streams.
• Trees reduce neighborhood flooding and the associated property damage when it rains
by reducing the volume and slowing the velocity of water.
• Trees enhance the recreational resources in our communitiesl whether it is a walkable
residential street or streams where we fish.
If we want a healthy Nation's River, if we want children to be able to play in Sligo Creek without
getting sick, if we want a safe drinking water supply, then we need to do everything we can to
stop pollution from flowing across the land when it rains. And a key ingredient to achieving
this goal is having a robustl healthy tree canopy in our urban and suburban communities.
That's why Potomac Conservancy supports the passage of Montgomery County Council Bill 35­
12 (Urban Tree Canopy Bill) and Bill 41-12 (Roadside Tree Protection Bill)
Both pieces of legislation offer elegant, simple solutions to compliment the county's current
Forest Conservation Law. This law has made great strides towards protecting larger tracts of
forested land in the county. But within the more urban areas of the county, we continue to
lose trees.
104
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Let's be clear. There will be future development and redevelopment of private property in the
county. With this additional development, Bill 35-12 allows a property owner to cut down
healthy trees on smaller lots and pay into a fund dedicated to replacing those trees.
We recognize that there will be proposed changes to Bill 35-12. We believe a future version of
this bill must include provisions that:
1) Exempt park stewardship projects from this legislation
2) Offer additional mitigation options to provide incentives to preserve healthy trees on
site
3) Specify the mitigation rate and set it at a meaningful level to deter the unnecessary
removal of mature and healthy trees
4) Set a county-wide tree canopy goal of at least 55 percent with minimum goal of at least
40 percent in all areas evaluated in the county tree canopy assessment
5} Ensure the Department of Planning Services has ISA-certified arborists on staff to ensure
the successful implementation of the legislation and the associate regulations
6} Set the maximum civil penalties at a higher level than $l,OOOjday, again to provide a
meaningful incentive to protect healthy, mature trees.
In addition, Bill 41-12 presents a timely solution for the protection of trees in the public right of
way. These trees are a valuable community asset, just the way a side walk is a community
asset. And when that publically owned community asset is removed, it must be replaced.
We look forward to continuing to work with Council Members, as well as county staff, to ensure
we enact strong protections for these community assets.
Overall, the Potomac Conservancy advocates for protecting existing trees and strategically
replanting more trees in order to improve the water quality in the Potomac watershed. We
call on the County Council to promptly move both pieces of legislation forward to send a strong
signal to our citizens that an important community asset - trees - matter.
Thank you.
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Testimony on
Bill 41-12, Streets
&
Roads - Roadside Trees - Protection
Bill 35-12, Tree Canopy Conservation
Clark Wagner, Pleasants Development
MNCBIA, VP - Montgomery County
Good evening, my name is Clark Wagner with Pleasants Development and the MNCBIA. I will
be testifying on both tree bills.
As a developer in the building industry for the last 12 years, and as a municipal planning
professional for the 15 prior years, I can relate to these bills quite well. In fact I wrote the
Forest Conservation law, Tree Ordinance, and Tree Manual for the City of Gaithersburg, many
moons ago. I am also a four-year member ofthe county's Forest Conservation Advisory
Committee.
Regarding the Roadside Tree bill, I do not see the need for a law that is completely redundant
to the existing state Roadside Tree Law. The only problems that I have heard relative to the
state law are ones associated with a lack of enforcement. Currently, the county has the
authority to augment enforcement of the state law, without this bill being enacted. I don't see
any reason to create a new permit, a new fee, and a new replacement fund, when we have a
state law in place that has been working for decades. If we want to improve compliance with
the state law, then we should utilize existing staff and better educate the public to accomplish
that goal. As you know, we are currently undertaking steps to streamline the development
review process and this bill seems to run contrary to those efforts.
Regarding the Tree Canopy Conservation bill, I have been involved with a small group of
builders who in the recent past were negotiating a new tree bill with Conservation
Montgomery, negotiations that ended in an impasse over how many trees builders should be
required to plant. I believe the bill you have before you is so flawed, and so unnecessary, that
we need to simply start over. Here are the problems I see with this bill.
1. There is no evidence that we are losing tree canopy in Montgomery County and
therefore no sound basis for this bill. The 2009 study by the University of Vermont
found the county to have a 50% Tree Canopy Coverage overall, much higher than any of
the neighboring jurisdictions. In the down-county the percentages are the highest,
exceeding 60% (how did that happen with no tree canopy bill in place for the past 50
years?), and in the up-county the canopy is the lowest due to the amount of farmland.
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The middle section of the county is where the tree canopy has the potential to increase
the most, since this section of the county developed in the last 30 years, and many of
these trees have not fully matured. Of course there are some small urban areas, like the
CBD's that have lower canopy coverage, but that is to be expected. This bill does not
take into account that new trees are planted every year: By homeowners, By
commercial property owners, By homeowner associations, By utility companies (Pepco
planted 3,000 trees in the county last year), By the Parks Department, By the School
System, and By builders and developers, who often end up planting more trees than
current laws require. I believe that if the research was done, we would find our tree
canopy percentage is actually increasing from year to year.
2. The bill is in essence just a tax on builders and home owners, once again setting up a
new plan review, with a new application fee, and a new mitigation fee.
3. Through the FCL developers are currently discouraged from impacting existing forest on
their sites, and forced to impact existing individual trees that would be covered under
this bill. This is not fair. We should be able to build on some portion of our land without
coming under opposing mitigation requirements. Any new tree planting bill should
only apply to properties that ARE NOT subject to the forest conservation law.
4. There is no credit for the new storm water management structures that builders install
on the lots to capture storm water, and invariably impact trees in the process. One set
of regulations should not cause fees to be paid under a separate set of regulations.
5. There is also no recognition that builders and developers must impact trees to install
utilities, when they have very little flexibility in where the utility service is located.
In Conclusion, I strongly suggest you reject both the Roadside Tree bill and the Tree Canopy
bill at this time and allow industry representatives work with the environmental community
to craft something that is more workable. Thank you very much.
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Page 1 of2
Faden, Michael
From:
Sent:
To:
ginnybarnes@juno.com
Monday, February 25,20138:17 AM
Faden, Michael
Subject: Fw: Tree Bills @ T&E
Mike - FYI - ginny
----- Forwarded Message ----­
From:
ginnybarnes((lliul1o.com
To:
J
osh.Faust(ill.m.ontgoI11erVcountymcl.gov, counci lmembcl'. ber!
i
ner0'\montgomerycountymd.gov
Date:
Mon, 25 Feb 2013 08:09:52 -0500
SUbject:
Tree Bills
@
T&E
Message-ID:
<20l30225.051024.31248.163903(G;mailpop03.vgs.untd.com>
Conservation Montgomery
Working together to enhance our
quality of life
Hi Josh
We'd like Roger to know that we (Conservation Montgomery - Caren Madsen, Ginny Barnes and
Alan Bowser on behalf of our coalition members) met with DEP staff (Director Hoyt, Stan Edwards
and Laura Miller), Rick Brush from DPS and Kathleen Boucher on February 15th and presented a list
of the changes we need to see in order to support Bill 35-12.
DEP went over their prior meeting with Parks staff, Chainnan Carrier and Mark Pfefferle and
encouraged us to reach consensus with Park and Planning on outstanding issues. Caren and
I subsequently met with Mark Pfefferle and did so. All this was in preparation for DEP taking our
collective changes to the County -pxecutive. Apparently this meeting did take place late last week.
However, the County Executive does not agree with our changes. You will hear about it this morning.
We are disappointed primaril):: in the unwillingness to grant an exemption to Parks (who are in the
business of saving trees) or to set a canopy fee that has any meaning. We believe the canopy fee
should be high enough to provide incentives to save trees and if they can't be saved, to cover the cost of
replacement. please remember that this bill is not intended nor will it do any more than make a dent in
canopy lost in our urban areas. I'd suggest you ask DEP staff today to give you an estimate of what it
costs per sq.
ft.
to replace trees of any size on site or elsewhere.
Below is the list of changes we still want to see and we are in agreement with P&P on these:
At the most basic:
1) Parks - We are in agreement on a full exemption for Parks (that should be revised in the bill).
2) Mitigation options
• We are in agreement that up to 25% of canopy fee credit for trees replanted on site. We favor a
list offering choices of trees depending on what the site will accommodate. (see below)
?J?:'i12013
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Page 2 of2
• We are in favor of tree protection credit for unusual effort to save trees on site.
• We agree that the higher the fee, the higher the level of mitigation credit that should be offered
(as discussed in our meeting last Friday) and the lower the fee rate, the lower the level of credit
that should be allowed under the bill.
3) Fees for Canopy disturbance
P&P has no official stand on canopy fee rate but agrees (as above) that the higher the fee, the higher
the level of credit that should be allowed (up to 50%). But the lower the fee, the lower the credit should
be allowed (up to 25%). At a staff level, though, Mark concurs that ideally the fee should be in keeping
with the cost of replanting.
4)
Canopy Goals - We are in agreement that canopy goals need to be addressed somehow. How about
including them in a countywide planting plan (targeted plan done as a collaborative effort between
Planning Department, DEP, and DOT?)
5)
Arborculture expertise at DPS - Rick agrees it's needed and we understand this is already underway.
6)
Quality, species and size of trees
We agree there should be standards in place to guide choices of tree species. Choices from a small and
large canopy tree list should be based on 20-yr. canopy. This will help to get canopy planted where
it
will be lost.
.
7)
Site Inspections - On site inspections are doable at minimal expense using existing DPS inspection
procedures. This is taking into consideration the need for additional training for DPS inspectors and the
addition of an ISA-certified arborist at DPS.
8)
Management of Tree Conservation Fund - As Kathleen noted, language will be added to clarify
management of the fund and that the fund not to be used for salaries. We all agree this is needed in the
bilL
Regards ........ Ginny Barnes
Ginny Barnes,
Vice Chair,
Conservation Montgomery
(301) 762-6423
2125/2013
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Bil135-12, Trees -- Tree Canopy Conservation
1117/2013
testimony by Kenneth A. Bawer, 8 Cleveland Ct, Rockville, MD 20850
(kbawer@msn.com)
Dear Councilmembers:
I have a special interest
in
tree conservation as a volunteer Weed Warrior Supervisor for
the Parks Department and as a Board member of the Maryland Native Plant Society.
Tonight, however, I am only speaking on my own behalf.
I wholeheartedly thank the County Executive and the Council President for submitting
Bill 35-12 to the County Council. Protection for tree canopies on small lots is long
overdue and I enthusiastically support this effort in principle.
The benefits of trees are not disputed: improved air quality due to their uptake of
pollutants, uptake of carbon dioxide which slows global warming, shade which
counteracts summer heat, absorption of storm water which decreases runoff into eroded
stream valleys, decreased noise pollution, and valuable wildlife habitat.
What may be disputed is the fmancial impact this bill
will
have on the building
community. The fact is that there will be NO negative financial impact if there is no tree
canopy disturbance. A Scenic America Technical Bulletin (1) states that in two studies of
developers, "it was found that preserving trees on site was a sound economic decision."
In
one of the studies, all of the "builders reported that they were always able to recover
the extra costs of preserving trees in a higher sales price for the house." In the other study,
"The builders reported that public demand is higher for houses with trees and any extra
costs incurred in preserving trees were recovered in the final sales price." Finally, a
statement from the National Association of Rome Builders (2) says, "Trees are
aesthetically pleasing and are well known to increase real estate values by as much as 15
percent."
While I support the concept of this Bill, there are a number of concerns I have about the
Bill as written.
1. The bill should consider the protection of heritage and specimen trees.
2. All mitigation fees generated by Department of Park projects should be returned
to the Department of Parks.
3. The bill should be expanded to include tree removal even when a sediment
control permit is NOT required. Existing homeowners are removing non­
hazardous, healthy trees at an alarming rate for reasons such as desiring more
light. Trees greater than a certain diameter should require a removal permit which
should be granted only if a tree is either a current hazard to property or is in the
footprint of a proposed, approved structure.
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Bill
35-12,
Trees
--
Tree Canopy Conservation
111712013 testimony by Kenneth A. Bawer,
8
Cleveland Ct, Rockville, MD 20850
(kbawer@msn.com)
4. Section 55-7 (d) (2) (line 237) says "The Director of Permitting Services may
approve modification to an approved
limits
of tree canopy disturbance if the
action is otherwise required in an emergency." As the saying goes, "Poor planning
on your part does not constitute an emergency on my part." Thus, the term
"emergency" should be explicitly defmed.
5.
In
Section 55-8 (d) (2) (line 272): Again, the term "emergency" should be
explicitly defmed.
6.
In
Section 55-9 (a) (line 280), states "Every reasonable effort should be made to
minimize the cutting or clearing oftrees..." This is too vague. There needs to be
an explicit requirement. The bill should require a minimum tree canopy
conservation percentage to discourage "cut and pay".
7. Section 55-9 (b) (line 284) should be modified to allow onsite mitigation -let
trees be replanted on the same site. This would benefit the immediate
neighborhood suffering the loss.
Thank you for your consideration of my views.
(1)
"Trees in Our Communities, The Value of Trees to Residential Houses," Scenic
America Technical Bulletin, Vol. 1, No.1, 1992
(2) "Tree Preservation Ordinances," National Association of Home Builders, Land
Development Services Department, October, 1991
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t\
Montgomery
Soil
Conservation District
18410 Muncaster Road - Derwood, MD 20855 - Phone (301) 590-2855
www.montgomeryscd.org
January 17, 2013
The Honorable Nancy Navarro
Montgomery County Council President
100 Maryland Avenue
Rockville, MD 209050
Re:
Bi1141-12, Streets and Roads - Roadside Trees Protection and
Bill 35-l2 Trees - Tree Canopy Conservation
Dear Council President Navarro and Council Members:
On behalf of the Montgomery Soil Conservation District (MSCD) I would like to thank you for the
opportunity to provide comments on Bi1141-12 and Bill 35-12. As farmers and landowners in the
Agricultural Reserve, we would like to express our concerns about roadside tree maintenance and the
challenges trees present for the agricultural community.
I would first like to mention the observations made by Council Member Floreen during our last
discussion regarding a tree bill. Back in June 2012 when we met to discuss Bi1l16-12, Council Member
Floreen pointed out that our urban and rural sections of the County have distinct and critical differences
regarding tree management issues. While we all acknowledge the values that trees provide, we also
recognize that the il1tended purpose of the Agricultural Reserve is to produce the food and fiber needed by
a growing population. As in June, the Montgomery Soil Conservation District opposes these bills as they
pertain to the rural areas of the County, and respectfully requests that the County Council provide
exemptions to these bills for the agricultural community.
The lack of maintenance on roadside trees in the rural areas of the county has become a serious concern.
Critical public safety issues and economic impacts created by unmanaged roadside trees continue to be
ignored. I have provided along with my testimony several pictures of an incident that occurred Tuesday
on Travilah Road. Problems like this exist throughout the county and they are dangerous and costly.
As our rural roads continue to become commuter routes, the volume of traffic combined with
overhanging, unmanaged branches has created a hazardous situation throughout the county. Many of the
trees along our rural roads represent an accident waiting to happen, and the only question is whether
it
will impact farm equipment, emergency vehicles, a school bus, or some other county citizen.
Ask any farmer in this county about tree maintenance along the roads and you will begin to understand
the problems farmers experience with poorly maintained roadside trees:
• Constant and expensive damage to all farm equipment on both the roadways and on the field side
where overgrown trees impede planting and harvesting.
.
• Lost production due to shading and moisture impacts of roadside trees.
All District
services
are offered'on
a
nondiscriminatory
basis,
without regard
to
race, color, national origin, religion,
sex,
age, marital status or handicap.f./ll
CONSERVATION - DEVELOPMENT • SELF·GOVERNMENT
r!..:7
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• Spreading of invasive and exotic trees, shrubs, and vines that start in roadside hedgerows and relocate
throughout the farm and create increased costs to control.
• Dangerous limited sight distances when pulling out of fields onto roads.
• Longer delays in power restoration when trees cause outages in rural areas.
It
is not uncommon for
rural homeowners to be out of power many more days than urban residents because they live in less
populated areas, and therefore become a lower priority.
Specifically regarding Bi1l41-12, we request that the county provide the agricultural community with an
exemption to the law under Section 49-36A Roadside tree work (b) Applicability; Exceptions. This
exemption is critical for rural landowners
if
we ever hope to address the safety and economic concerns
along the roads in our agricultural areas. We also recommend that fees collected from this bill be
designated to trim trees and provide a fund to reimburse residents for damages caused by roadside trees.
The focus of Bill 35-12, Trees -Tree Canopy Conservation appears to be on minimizing "the loss and
disturbance of tree canopy as a result of development." However, it does not provide a clear exemption
. for all agricultural practices.
Section 55-5 Exemptions
reads "This Chapter does not apply to: any tree
nursery activity performed with an approved Soil Conservation and Water Quality Plan as defined in
Section 19-48;" We believe this first exemption should be amended to include any agricultural or
conservation activity performed with an approved SCWQ Plan.
Many Council Members attended the Farming at Metro's Edge conference last weekend. A recurring
theme at this landmark event was that constant increases in regulation represent one of the biggest threats
to the future prosperity of the Ag Reserve. These bills, along with the lack of tree maintenance along our
rural roads, create an obstacle for many of the rural businesses and policies we strive to promote. Along
our rural roadways, trees must be managed so they do not impede commerce, public safety, power
reliability, or private property rights.
I would like to thank the County Council for providing this opportunity to present our concerns on Bills
41-12 and 35-12, and for their continued support for agriculture. We look forward to participating
in
the
work sessions on these two bills.
Cc:
Council Members
Jeremy Criss, Ag Services Division Manager
@
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SHIJLMAN
ROGERS
CJ,~\~'~[)i,L
P()R[)~~'{
TIMOTHY DUGA.N . ATl'ORNEY
3llU305228
'td\!gru":@shuhrtanmg~I~,ctlm
November 28, 2012
By Email
Michael
Faden~
Esq.
.Ms. Amanda Mihill
Montgomery County Council
100 Maryland Avenue
RockviHe~
Maryland 20850
Re:
BHl35-12 Trees· TreeCallopy Conservation
Dear .Michael and Amanda:
Please include my letter in the Record. Although I do not support the legislation,
please consider the following:
Circle
page
-~-
LineWs
120·150
Di,qCH!{~j£)n
6
Section 55-5 Exemptions
The legislation should expressly provide tbat one of tile exemptions is
, "forestand its related canopy that is subject to an approved forest
conservation
plan.1I
Later, in Section 55-9,
it
provides that the
mitigation fee does not apply to such areas.
Section 55-5 lists the exemptions. I simply would add to the list:
"forest and its related canopy that is subject to an approved forest
conservation plan"
t
12
278·283
Section 55·9. Tree C-allOPYPee to
Mitigate'bistur~-'W'
"''*"
Subparagraph (a) reads that "every reasonable effort should be made to
minimize the cutting or clearing of trees ...
If
f
The legislation's provision is establishing not only a new procedure and
a related fee but also a new substantive threshold to be satisfied before
any affected tree may be removed. Stated another way, Montgomery
County would be requiring that a developer not only identify the
proposed tree canopy but also justity/evidence that "every reasonable
'--~,.~.~.,
._w,_.
_~,_ ef[~rt!l
has
b!!"e!~Jllade
to minimize the (;utting or clearing, etc. The
.w
I
,2505 PARK
POTo}~AC
AVENUE. 6TH ?"'[.COR. PO:OHAC,
~'lD
20854
T
301230.5200
F 30l,2302891
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SHIJLM AN
ROGERS
i
Circle
page
Line#'s
GANDAL
PORDY
Michael Faden, Esq,
Ms. Amanda MihiH
November 28, 2012
Page 2
Discussion
, reviewers
at
M-NCPPC
andlor
DPS
will
require
a
documented
justification. They
will
reference this provision as having granted them
the authorjty to determine whether or not the developer has indeed
Justified/evidenced that all reasonable efforts to save the tree have been
made.
+-------~~-----.--------------~~------------------------
The universe oftrees that
will
be subject to the new threshold include
all trees. That is, the detennination is not limited to specimen trees that
are affected
by
a
sediment
and
erosion control pennit
The
provision
requires a justification involving any trees affected
by
a sediment and
erosion control permit.
In essence, I believe the provision will establish for all trees to be
removed a justification process similar to processes such as:
(1)
a
specimen tree variance application/procedure involving a sediment and
erosion control permit; or
(2)
other justifications now required
to
justit}
proposed tree removal involving a forest conservation plan.
The provision allows
for.a
denial
oftne
sediment and erosion control
permit even though a spec.imen tree or a forest is not involved,
I suggest that
Section
5
5~9(
a) be eliminated.
It
is one burden to
calculate the canopy and impose a fee) and, yet again, an exponentially
greater burden to impose a
II
J
'ustification" threshold for aU trees, where,
of course, the removal may be denied.
In
short, if the biII is intended to impose a fee, then eliminate the other
language that imposes more entitlement process.
!
j
b
,12-13
i
291-294
Section
55-9 Fee To Mitigate Disturbance
!
i
Subparagraph (b) expressly provides that the mitigation fees are not to
be imposed on Hforestand its related canopy that is subject to an
approved forest conservation plan.
1t
If Section 55-5
is
amended and exempts "forest and
its
related canopy
that is subject
to
an approved forest conservation plant! as I
guggest~
then the language in Section 55-9 is unnecessary.
.)
"
!
I
.................
l".
I
N/A
N/A
Finally, I suggest that the deliberations address "grandfathering
ll
and
that express .language be added.
.t.....-..,,__............_._.,..... _ _.__••_"_.....
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•.••.".,."._._ _
~_."
•."••
w._.~_""_"".,,_~
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~
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"_~
_ _
.M.""._.•."....
_.~
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SHULMAN
ROGERS
GANDAL
PORDY
ECKER
Michael Faden, Esq.
Ms.
Amanda.
MihiU
November 28, 2012
Page 3
Thank you for your consideration. Please call with your comments and questions,
Very truly yours,
Timothy
Dugan
c:\nrportbl\worksite\tim\3570647_2"doc
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LINOWESI
AND
BLOCHER
LLP
ATTORNEYS AT LAW
February 22, 2013
Stephell Z.
Kaufman
skauiman@linowcs-law.cQn1
30L961,5156
Phillip A.Hummel
phumtnel@linowes-la·w.com
30.1~961-5149
Bv
H~md
DeliyerY
Council President Nancy Navarro.
Memher~
of the
Transp6rtation~
Infrastructure,
Energy
&
Environment
Committ.ee••mdall
Cou.ndlmembers ofthe
Montgomery County Council
100 Maryland
Avenue
Rockville, Maryland 20850
Re:
Tri-:State
Stone
&
Building Supply Inc.
N_
Bills
35~I2
and 41..:12:
Dear Council President Navarro andCouncilmembt>rs of the Montgomery County Council,
Our client, Tri,.State Stone
&
Building
Supply Inc.,
hereby
submits
this letter
to comment
on proposed Bill 35-12 (Trees - Tree Canopy Cnnservati01'l)and Bill
41~12
(Streets
and
Roads
~
Roadside Trees - Protection). Trl",State Stpne
&.
Building Supply
opeJ:'<ites a
quarry
at 8200
Seven Locks
Rt)adin
Bethesda and bas been fumilyo\;\'iled and
operated since
19215.
The
purpose
of
this teiteI' is
tl1support
generally thee.xemptionln SectionS5;.5(i)
.01'
Bill 35-12
for
non-coal
surface miningllnd to clarify that
it
also coyer
quarry
operations. An additional
purpose
is to
request that
a
spedfic exemption be
added
for qllarry
operations to
Section 49*
36(b) of Bil141-12.
.
.
.
Bill 35:12
would
require a
pcrsonsubject to itsprovisjons to submit
infomUitiort
to
the
County
regarding limits
of
tree canopy disturbance that documents the extent of
existing
tree
canopy and the area
of
tree
canopy
to
be disturbed
by'
the proposed activity. Bill 35-12
\~'ould
also authorize a mitigation fee to compensate
for
the
lossof~
or disturbance to, tree cruiopy.
Under Bill
j5~
12, the County must not issue a sedimentcbntrol pennit until an applicant has had
its
limits
of tree canopy
disturbance
approved and paid
any
required
mitiga~ioIl
fee.
Ascurrcntly written,;
Bm
35-12 does include a number of exemptions
~nd
these do
~pply
to~
among other things, "any non-coal
surface
mining conducted
in
accordance. w1tb applicable
state law."
§
55-5{i) of
Bm
35w12.
Similarly,
the
Countyls Forest Conservation Law currently
exempts "none.oal surface mirling regulated
lmder
Title 7 of the Natunll Resources Article
of
the
Y'L&B 2271100v I/12230.0002
7200 WisconSin Avenue
iSuite
BOO
t
Bethesda,
MD20814"",S42
1301.654.0504
301.654.2801
Fax I
wwwJinQwes·law,com
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LlNOWESI
AND .
BLOCHER
LLP
AT·1-QFlNE'Y~:~
.AT
LAV~'
Council
President
Nancy
Navarro, Members of
the
Transportation,Infrastructure,
Energy
&
Environment Committee,
and all
Councilmernbers ofthe Montgomery
County
C01IUcil
Fehruary
2013
Page 2
Maryland Code.'"
§ 22A":5(1) of the
Montgom.ery
County Code, Tri-State Stone
&
Building
Supply
Inc.
strongly supports this excmptionalld believes
it
sheuld remain
if
Hilt
35-12
i:;;
adopted
by
the
County CounciL
To ensure that theexernpt1cm language covers
,quarries,
Tri­
State Stone
&
Building Supply
requests
that the exe.mption fromSection 55-5(1) ofBiU 35,,12 be
ulllended
as tblluws:
"a.ny
non~coal
surface mining, including
quarry
operations,
conducted in
accordance with applicable state law,"
Unlike Montgpmery County's existing FQrest Conservation L::tw and proposed Bill
35~
12, Bill 41 .. 12 does
not
specificallycont~ullarelevant
exemption
forquarry operations.
In
order
to achieve consistency with existing
and proposed
law, as
wellasensnr~th~futureoperation
and
economic
viability
of
Tri-State
Stone
&
Building Supply, Bill 41-12 should be amended to
incllldean
exemption in
Sectio1149~:36(b)
for
"aOVllOll-'Coal
surt~!,;~
mining includiugquurrv
operattQn~t
This
change
would confbnn
with
the
ForestCOI1Servation
La\v undproposed Bill
35*12 and prevent
any
harm
to Trt*Stale
Stone
&,
Building
Supply's unclother
local
quarry
operati(ms.
As
a.
quarry,
Tri-State Stone
&
Building Supply is currently
subject
to a number of State
and
County
laws. These
existing
laws
an:~sufficient
to
protect
the \veU-being of the County
while allowing an important
activity
that contribntes to the ecpnomic fabric of the community
and
provid~s.
a
desired
service~
,Thus,
Tri-State
Stone
&
BuHditlg
Suppt~l
supports the current
exemption
in Section
5S-5(i}
of Bill 35-12 but
believes
it
shoUld
be
clarified
to
e{)~"Ure
that
it
covers quarry
operations,
AC1:ordingly,
Tn-State Stone
&
Building
Supply
believc.$
Section 49­
36(b)
should be amended to include
,m
exemption
fur
quarry
operations~ \~'hicb
is
c.onsistent
with
the
existing Forest Conservation Law and
proposed
am
35-J
2.
Title 7 of the Natural Resources Article
of
the
Maryla.nd
Code~
which regulated surface
mining,
was recoditled at
Title
15 of the
Environment
Articleoi'
the Maryland
Godcin
1995. Chapter
4&8, Laws of Maryland 1995.
i
"'. L&H1271;:OOv I!l2130
00112
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LINOWESI
AND
BLOCHER
LLP
ATTCJF1NEYSA:f L.A.V
Council President Nancy Navam,\
Mt;,mbcts
t)f
tIleTri:mspol'tation, Infrastructure.
Energy
&
Environment
Committee,~md
all
Coun~Hmembers
of the Montgomety
County Council
Fehruary
22~
2013
Page 3
.
jfyou
have
uny
qucstions,Weapprcciate the opportunity to comment
on these two important
hills
and
to
have these comments included in the
formal
record of the
Please let
USklll)W
proceedings.
Sincerely,
LINOWES AND BLOCHER
LLP
.~JZ-J
Phillip A Hununel
~~
**1..&8221t!()Ovl/1223(lOOOZ
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Different Approaches to Mitigating Tree Loss
• Plant certain number of trees/canopy area based on property
.
size
• Fairfax, VA; Chesapeake, VA; Athens-Clarke County, GA
• Forest Conservation Law fee-in-lieu
• Counties and municipalities in MD
• Pay, or plant certain number of trees, based on tree size
• District of Columbia
7
l\.) ,
.......
j\..)
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Determining the Tree Canopy Fee ­
Factors to Consider
Factor 1- The trees/canopy to be replaced
Factor 2 - The cost to plant trees
Factor 3 - Tree mortality, i.e., the number of trees that must be
planted to have the desired number of living trees
Factor 4 - The timeframe for consideration
8
@
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Factor 2: The cost to plant trees
• The cost to plant a tree is based on:
• Optimal size of new tree
• Cost of nursery stock
• Cost of installation including mulching and staking
• Deer protection
• Aftercare including watering, fertilizing, corrective pruning, and
removing stakes
• Current price estimates include:
• DOT street tree planting contract
• Rainscapes tree canopy planting rebate program
• Retail and wholesale nursery prices
10
®
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Factor 3: Tree mortality
• The mortality rate of trees depends on a number of variable
factors. Generally, mortality decreases with time since
planting.
• Quality of plant material
• Size of plant material
• Species
• Planting technique
• Season of planting
• Unusual weather conditions
• Soil conditions
• Quality and consistency of aftercare
Time
Number
oftrees
surviving
>
11
®
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Factor 3: Tree mortality
=
1111
1111
1111
-
-
5 years after planting
""
,~~~
At the time of planting
-
-
10 years after planting
.......
~
""
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-
-
20 years after planting
12
,~~~
,~~~
I\.>
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Determining
the Mitigation
Fee
E
High
• Full replacement
• Maximum deterrent
• More options for credit
for protection/planting
)
Low
• Partial replacement
• Minimal deterrent
• Fewer options for credit
for protection/planting
-
~
13
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Determining the Mitigation Fee'
E
High
Fee to cover full replacement
of lost canopy
,.
Low
Based on high FCL fee-in-lieu
($5.00 @40,OOO sf)
Based on County FCL fee-in-lieu
($1.05 @40,OOO sf)
14
®
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Proposed Mitigation Fees
Increment
From
.................
.................................
$9.~?§
..................................$.9.·..
:?§
..................................
$.9.~4§
.................................. $.9.. .§.§
..............................1.9.,.99.91...................................$.9:.9.§
10.001
..................................$.9..7.§
.
. ................................
$.9~.~.§
........
,
.....
,.,
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.......
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o
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$1.05
....................
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..................
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........ .
.............................4.9.1.991...............................§.§.1.99.Q . . . . . . . . . . .:.. . . . .
.$.1..
.
. . . . . . . . . . . . . . . §.§.!.Q9.1...............................7.9.1.99.9 ..................................
$.1..~?§
70,001
and above
$1.35
15
®
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2010
.
-."tl
.
,
~
2011
Canopy within
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