T&E ITEM 2
July 8, 2013
Worksession 5
Committee members should bring their packets from the February 25, Aprill, and June
24 worksessions. Most items in those packets are not duplicated here.
Committee members may be asked to retain this packet for future reference.
MEMORANDUM
TO:
FROM:
Transportation, Infrastructure, Energy & Environment Committee
~ichael
Faden, Senior Legislative
Att?3;f~"
;
n
n
Amanda Mihill, Legislative AttomeYeJflVtfVl,AvU
Worksession 5: 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, February 25, April 1, and June 24.
Bill 35-12 would broadly:
• establish a fee-based program to mInImIZe and compensate for the loss and
disturbance of tree canopy as a result of development;
• provide for County mitigation when tree canopy is lost or disturbed; and
• establish a fund that the County can spend for tree canopy conservation projects,
including plantings of individual trees, groups of trees, or forests, on private and
public property.
At the January 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 February worksession, Executive branch staff updated the Committee on
discussions they have had with various stakeholders on key issues. At the April worksession
Committee members requested more data from Executive staff on tree preservation programs in
other comparable jurisdictions. DEP staff presented that data at the June worksession (see ©162­
174).
Circle numbers from
29-198
may be cited in this memo but with minor exceptions are not
included in
it.
They are included in the February
25,
April
1,
and June
24
Committee packets,
which Committee members should bring to this worksession. This was done to save a few trees.
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Committee Recommendations To Date
At its April 1 worksession, the Committee made the following recommendations:
• exempt the Parks Department from Bill 35-12;
• do not exclude quarry operations from Bill 35-12 (the Bill would already exempt non­
coal surface mining conducted in accordance with applicable state law);
• verify that agricultural activity is not subject to Bill 35-12 (Executive staff continue to
affirm that agricultural activities are not subject to the bill because they do not
normally require a sediment control permit); and
• grandfather existing projects (see Executive stafflanguage below).
Remaining Issues for Committee Discussion
1) How do other jurisdictions handle tree canopy protections?
At previous
worksessions, Committee members asked Executive staff to research other jurisdictions that have
tree canopy laws and compare them to Bi1135-l2. The initial response from DEP staff before the
Aprill worksession 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
(I) 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."
More recently, DEP transmitted information on several comparable jurisdictions (see
©162-181), showing that fees charged elsewhere would substantially exceed those proposed in
this Bill.
2) Is the fee-based approach outlined in Bill
35-12
a good way to protect and manage
the County's tree canopy?
Many organizations and speakers questioned different aspects of the
approach in Bill 35-12. For instance, Renewing Montgomery argued that if the County's goal is
2
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to retain tree canopy, the law should apply to all property owners, regardless of whether they
need a sediment control permit.
Committee members may wish to discuss the following questions about the Bill's scope
and approach with Executive staff and other stakeholders:
• Proposed §55-9(a) (see
©12,
lines 279-283) provides that the Bill's objective 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 general policy goal, or instead to function as a substantive regulatory standard? We
believe this language, if not entirely hortatory, is at best a broad policy goal.
• Why does Bill 35-12 apply only to properties that must obtain a sediment control
permit? Why not apply the Bill to all properties? Or trigger the restrictions after a
particular amount of tree canopy is disturbed?
• As essentially a fee-based approach, Bill 35-12 would not require replacing any tree
canopy where it is removed (i.e., the bill does not require on-site replacement when
possible). Should it? For one option to require replanting, see the Renewing
Montgomery proposal discussed on page 6 of this memo.
• How would this Bill overlap the forest conservation law? Will most properties that
are subject to the forest conservation law also be subject to the tree canopy law?
Should properties subject to the forest conservation law be exempt from the tree
canopy law? 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. Effectively they are not;
under
©12-J3,
lines 291-294, any disturbance in a 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.
• Much of the Bill's content seems to assume a more direct regulatory approach than a
simple fee requirement, and in Council staff's view would not be necessary if the
only action needed to comply with this Bill will be to submit limits of disturbance
information and pay the fee that is calculated accordingly. For example, on
©J3-17,
lines 296-342 and 346-387 appear superfluous. The Planning Board suggested an
amendment to clarify the respective Board and DPS role in enforcement (see ©37 and
233);
Council staff recommends this amendment
if the enforcement provisions
remain in the Bill.
3) Should Bill
35-12
set canopy goals?
Many organizations, including Conservation
Montgomery and West Montgomery County Citizens Association, urged that Bill 35-12 be
amended to include specific tree canopy goals. Some individuals suggested establishing a no-net
loss tree canopy goal; other organizations suggested setting a countywide goal of 55%, with a
minimum goal of 40% in all areas evaluated in a county tree canopy assessment. The Bill does
neither.
4) Should the Parks Department be exempt?
The County Planning Board and many
environmental organizations expressed concern that Bill 35-12 would cover the Parks
Department in its requirements. As Board Chair Carrier noted in her letter on
©31-32,
many
park capital projects involve work under tree canopy and the Department strives to avoid,
3
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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.
Committee recommendation: exempt the County Parks Department from this Bill.
5) What other exemptions (if any) should be allowed?
Several organizations or
individuals requested exemptions from the fee requirement:
• 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). Because
agricultural activities are normally not required to apply for a sediment control permit, we
concur with Executive branch staff that this exemption would be unnecessary.
• Bill 35-12 would exempt any non-coal surface mining conducted in accordance with
applicable state law (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,
©119-12J).
We see no reason to do so; a quarry
normally would have little tree cover, but if it does the requirements should apply.
Committee recommendation: do not adopt either amendment.
• Pepco (see Pasternak email,
©J
83) asked for an amendment, similar to language in the
redraft of Bill 41-12, to clarify that utility vegetation management activities are not
subject to this Bill. While Council staff concurs with Executive branch staff that those
activities likely would not be covered by this Bill because, among other reasons, those
activities don't require a sediment control permit, we agree with Pepco that inserting
language similar to that in lines 100-106 of draft 16 of Bill 41-12 on line 136 of this Bill
would avoid negative implications and make that result certain.
• BIA requested that Bill 35-12 exempt lots covered by the Forest Conservation Law in
order to "avoid double indemnity" and promote tree conservation. BIA stated that a
property owner may have a disincentive to planting trees on potential lots because they
would not be given any credit for those trees and the subsequent lot owner would still be
required to plant trees on their lot in spite of the compliance with the Forest Conservation
Law. Council staff notes that while both 35-12 and the Forest Conservation law currently
would both apply to a given lot, the trees on the lot are not governed by both. Under Bill
35-12, canopy that is subject to a forest conservation plan is not subject to mitigation fees
(©211, lines 301-305).
6) What
is
the appropriate mitigationjee level?
Bill 35-12 would require the payment
of a mitigation fee set by Method 3 regulation. The fee would not apply to the first 5% of the
tree canopy disturbed and, as already mentioned, would not apply to canopy that is subject to
forest conservation law restrictions. 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 trees. The Planning Board was concerned that Bill 35-12 does not
set a specific mitigation rate.
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When Committee members pressed Executive staff for proposed fee levels, DEP staff
submitted a fee scale based on the forest conservation law's fee-in-lieu payment ($1.05/square
foot at 40,000 square feet) (see
©J28-J
35). To show how the fee is calculated on sample sites,
DEP submitted a Powerpoint presentation (see
©J84-J98).
Committee members expressed an intent to insert whatever fee level that is approved into
the law, at least as the initial fee, possibly subject to revision through a regulation that the
Council would have to approve (not a Method 3 regulation, as the Bill proposed). In the
worksessions so far, Committee members have not discussed in detail what fee levels are
appropriate.
Bill 35-12 would set a fee based on the amount of tree canopy within the limits of
disturbance, regardless of how much if any canopy is actually removed. Should the fee structure
instead be measured by how much canopy would be removed?
7) What mitigation credits should be allowed?
Some environmental organizations and
building community representatives 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, a custom builder, 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 are now required to install on lots to capture
stormwater, which can require some trees to be removed.
Just before the April worksession, DEP staff submitted an outline of a potential credit
program for tree protection and tree planting (see
©J59-J6J).
Much of the detail in this proposal
could be contained in the implementing regulation, but the basic thrust and the minimum or
maximum credits would need to be inserted into the Bill. Executive staff later submitted
amendments to do that (see ©199-218, especially ©211-212).
8) Should the uses of the Tree Conservation Fund be restricted?
Environmental and
builder representatives raised concerns about the Tree Conservation Fund. Conservation
Montgomery and Ashton Manor Environmental urged that the Bill be amended to assure that the
fund is not used for salaries and other administrative expenses. In Council staffs view, this can
be regulated through the operating budget process; if too much of the Fund turns out to be used
for less important purposes, the annual operating budget resolution can include appropriate
restrictions.
9) 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.
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Executive branch staff proposed a relatively narrow transition clause, which Council staff
would redraft as follows:
Sec. 2. Transition. This Act does not apoly to any lot where a sediment control pennit
or final forest conservation plan. or an exemption from submitting a forest conservation plan.
was approved before March 1. 2014. unless the property owner later submits an application to
the Planning Director to amend the approved final forest conservation plan.
Building industry representatives prefer a transition clause which exempts any lot where
an application for a building pennit, sediment control pennit, or forest conservation plan was
submitted before that date.
Executive redraftlRenewing Montgomery option
After the June 24 worksession, Executive staff submitted a redraft which incorporates
their proposed fee schedule and broad authorization for onsite tree planting and protection. (See
©199-218, especially ©211-212.) Otherwise, this redraft is essentially identical to Bill 35-12 as
introduced.
Renewing Montgomery proposal As an alternative to the fee and credit structure that
DEP advocates, a group of small builders, Renewing Montgomery, proposed an option for
smaller lots (smaller than 20,00 square feet) that in their view would be less expensive, fairer,
less subject to administrative discretion, and result in more trees being replanted onsite. For the
RM option, see ©219-225. BIA endorsed their approach (see BIA letter, ©226.)
Essentially Renewing Montgomery would allow, at the ownerlbuilder's option, the
applicant to commit to plant a certain number of trees onsite, regardless of whether any trees
were previously there or were removed. The applicant would have the option to pay a set in-lieu
fee, somewhat lower than DEP proposed, that would be based on the cost to plant a replacement
tree. Proceeds from that fee (as with the fee proposed under this Bill) would be used to plant
trees somewhere in the County. Renewing Montgomery's fonnula for trees on-site and in-lieu
fees is shown on ©221, and site-specific examples are shown on ©222-225. RM's option has
not yet been drafted as an amendment to Bill 35-12.
Since the June 24 worksession, Renewing Montgomery representatives and DEP staff
met and maintained a dialogue about the RM proposal. This dialogue is shown in the messages
and letters on ©227-232. In its notes of a June 27 meeting (see ©232), DEP staff conceded that
RM's option could be a "potentially workable alternative" if the required number of trees to be
planted on a specific-sized lot were increased to account for the mortality rates of newly-planted
trees.
Variations on RM's option could include:
• requiring a certain minimum number of shade trees (say half of those proposed) to
be planted onsite in all cases unless in its plan review the Department of
Pennitting Services (DPS) finds that exceptional circumstances make planting the
required trees onsite infeasible; and/or
6
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• limiting the use of this option to lots where application of state and County
stormwater management requirements results in the loss of all or most trees, as
Renewing Montgomery argues is often the case.
If planting trees onsite is allowed as an alternative to a mitigation fee, in our view a
builder's warranty of at least 2 years should be required for each tree planted.
This packet contains:
In February
25,
April 1, and June
24
Committee packets
Bill 35-12
Legislative Request Report
Memo from County Executive
Fiscal and Economic Impact Statement
In February
25
Committee packet
Selected testimony and correspondence
Executive staffpresentation
County Attorney opinion
In April 1 Committee packet
More selected testimony and correspondence
Revised Executive staffpresentation with proposed fee levels
USDA Forest Service Study on urban tree canopy
Summaries ofselected tree laws in other jurisdictions
DEP outline ofpotential credit program
In June
24
Committee packet
DEP comparisons with other jurisdictions
Renewing Montgomery proposal
BfA email endorsing Renewing Montgomery proposal
Pepcoemail
DEP Powerpoint presentation onfee calculation process
Circle #
1
19
20
22
29
63
97
102
122
136
146
159
162
175
182
183
184
199
219
226
227
233
In
this packet
Bill with Executive amendments
Renewing Montgomery proposal
BlA email endorsing Renewing Montgomery proposal
DEP and Renewing Montgomery dialogue
Planning Board amendment re enforcement
F:\LAW\B ILLS\l 235 Tree Canopy Conservation Program\T&E Memo 5.Doc
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Bill No.
35-12
Concerning: Trees - Tree Canopy
Conservation
Revised: 6-29-13
Draft No.
Introduced:
November 27. 2012
Expires:
May 27.2014
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
-.!.!.N~on~e~
_ _ _ _ __
Ch. _ _ Laws of Mont. Co. _ __
I
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 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 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 bracketsD
'* '* '*
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill
The County Council for Montgomery County, Maryland approves the following Act:
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BILL
35-12
1
2
3
4
5
Sec.
1.
Chapter 55 is added as follows:
Article
1.
Purpose and General Provisions.
55-1. Short title.
This Chapter may be cited as the Montgomery County Tree Canopy
Conservation Law.
55-2. Findings and purpose.
6
7
8
9
10
11
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
~
result of development
and other land disturbing activities is
~
serious problem in the County.
12
13
14
15
16
Oil
Purpose.
The purposes of this Chapter are to:
17
18
19
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;
~
20
21
result of
22
23
24
(i)
provide for mitigation when tree canopy is lost or disturbed;
and
25
26
ill
establish
~
fund for tree canopy conservation projects, including
plantings of individual trees, groups of trees, or forests, on
.- 2­
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BILL
35-12
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
private and public property.
55-3. Definitions.
In this Chapter, the following terms have the meanings indicated:
Critical Root Zone
means the minimum area beneath
~
tree. The critical
root zone is typically represented
Qy
~
concentric circle centering on the tree
trunk with
~
radius equal in feet to 1.5 times the number of inches of the
trunk diameter.
Development plan
means
~
plan or an amendment to
~
plan approved under
Division 59-D-1 of Chapter 59.
Director of Environmental Protection
means the Director of the
Department of Environmental Protection or the Director's designee.
Director of Permitting Services
means the Director of the Department of
Permitting Services or the Director's designee.
Forest conservation plan
means
~
plan approved under Chapter 22A.
Forest stand delineation
means the collection and presentation of data on
the existing vegetation on
~
site proposed for development or land disturbing
activities.
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.
Limits of disturbance
means a clearly designated area
III
which land
disturbance is planned to occur.
Limits of tree canopy disturbance
means all areas within the limits of
disturbance where tree canopy or forest exists.
-3­
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BILL
35-12
53
54
55
56
57
58
59
60
61
62
63
64
Lot
means !! tract of land, the boundaries of which have been established by
subdivision of !! larger parcel, and which will not be the subject of further
subdivision, as defined by Section 50-1, without an approved forest stand
delineation and forest conservation plan.
Mandatory referral
means the required review by the Planning Board of
projects or activities to be undertaken by government agencies or private and
public utilities under Section 20-302 of the Land Use Article of the
Maryland Code.
Natural resources inventory
means!! 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:
65
66
ill
To the extent allowed by law, any agency or instrument of the federal
government, the state, any county, municipality, or other political
subdivision of the state, or any of their units;
67
68
69
70
71
72
(Q}
An
individual, receiver, trustee, guardian, executor, administrator,
fiduciary, or representative of any kind;
(£)
Any partnership, firm, common ownership community or other
homeowners' association, public or private corporation, or any of their
affiliates or subsidiaries; or
73
74
75
@
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.
76
77
78
Planning Director
means the Director of the Montgomery County Planning
Department or the Director's designee.
-4­
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BILL35-12
79
80
81
82
83
84
85
86
87
88
Preliminary plan of subdivision
means
~
plan for
~
proposed subdivision
or resubdivision prepared and submitted for approval
by
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 OS.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
~
89
90
91
92
93
94
95
96
97
single ownership, or contiguous and under diverse
ownership, where development is performed as part of
~
unit, subdivision, or
project.
Site plan
means
~
98
99
100
101
102
103
104
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
point, and generally refers to the S-digit hydrologic unit codes.
Technical Manual
means
~
~
single
detailed guidance document adopted under
Section 55-13 and used to administer this Chapter.
-5­
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BILL 35-12
105
106
107
108
109
110
111
112
113
114
Tree
means
!!
large, woody plant having one or several self-supporting
stems or trunks and numerous branches that can grow to
!!
height of at least
20
at maturity.
Tree
includes the critical root zone.
Tree canopy
means the area of one or many crowns of the trees on
!!
site
including trees in forested areas.
Tree Canopy Conservation Fund
means
!!
special fund maintained
Qy
the
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.
115
116
117
118
55-4. Applicability.
Except
otherwise provided under Section 55-5, this Chapter applies to any
119
120
121
122
123
124
125
126
person required
Qy
law to obtain
!!
sediment control permit.
55-5. Exemptions.
This Chapter does not
ill2P1Y
to:
W
®
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
22i\;
(£)
127
128
129
130
131
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:
ill
the person cutting or clearing the trees has obtained
!!
certificate
of public convenience and necessity required under Sections 7­
- 6­
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BILL
35-12
132
133
134
135
136
137
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 stormwater
management facility, including an existing access road, if the person
performing the maintenance has obtained all required permits;
138
139
140
141
142
143
ill
(g)
any stream restoration project if the person performing the work has
obtained all necessary permits;
the cutting or clearing any tree
Qy
an existing airport currently operating
with all applicable permits to comply with applicable provisions of any
federal law or regulation governing the obstruction of navigable
airspace if the Federal Aviation Administration has determined that the
trees create
f!:
hazard to aviation;
144
145
146
147
148
.au
ill
cutting or clearing any tree to comply with applicable provisions of any
federal, state, or local law governing the safety of dams; or
any non-coal surface mining conducted in accordance with applicable
state law.
149
150
151
152
153
Article 2. Tree Canopy Conservation Requirements, Procedures, and
Approvals.
55-6. Tree Canopy
=
General.
154
155
156
157
158
ill
Submissions.
A person that is subject to this Chapter must submit to
either the Director of Permitting Services or the Planning Director the
following information on the amount of disturbance of tree canopy.
ill
Any person required
Qy
law to obtain
f!:
sediment control permit
for land disturbing activity that is not subject to Chapter 22A
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159
must submit
~
limits of tree canopy disturbance concurrently with
the sediment control permit application to the Director of
Permitting Services under Section 55-7.
160
161
162
m
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.
163
164
165
166
167
168
169
170
171
172
(hl
Timing
q[
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.
(£}
173
174
Incomplete submissions.
The Director of Permitting Services or the
175
176
177
178
Planning Director must not approve an incomplete submission.
@
Review
q[
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.
179
180
181
182
ill
Coordination
q[
review.
The Director of Permitting Services and the
Planning Director may coordinate the review of any information
submitted under subsection
ill
with other agencies as appropriate. The
reviews may be performed concurrently, and in accordance with, any
review coordination required under Chapter 19 or Chapter 22A.
183
184
ill
Time frame
q[
validity.
An approved limits of tree canopy disturbance
185
submission
=-:::.=== - - ­
remains valid for:
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35-12
186
187
188
189
190
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
191
192
193
issued
Qy
the Director of Permitting Services and remains valid;
ill
{g}
2
years if the accuracy of the limits of tree canopy disturbance
has been verified
Qy
~
qualified professional.
The Director of Permitting
~
194
195
Issuance
Q[
sediment control permit.
Services must not issue
~
196
197
sediment control permit to
person that is
required to comply with this Article until:
198
199
200
ill
the Planning Board or Planning Director, as appropriate, or the
Director of Permitting Services has approved an applicant's
limits of disturbance; and
201
202
203
204
205
206
207
208
209
210
ill
the applicant
lli!Y§
any fee required under this Article.
55-7.[[ Tree Canopy
=
]]Submissions to the Director of Permitting Services.
W
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.
(Q)
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.
211
212
f£)
The limits
Q[
tree canopy disturbance.
The limits of tree canopy
disturbance information for the subject site must include:
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35-12
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
ill
!!
map delineating:
CA)
the property boundaries;
the proposed limits of disturbance including any off-site
areas;
@
(Q
the aerial extent of existing tree canopy cover on the
subject site,
.!:!Q
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]]
ill}
any [[additional information specified
Qy
regulation]] area
of canopy protected; and
any surface area associated with tree planting;
ill
!!
table summarizing the square footage of:
CA)
the property;
the limits of disturbance of the proposed activity;
the aerial extent of existing tree canopy cover;
the limits oftree canopy disturbance; [[and])
@
(Q
CD)
[[E]]a:J the area of canopy protected by tree save measures;
(QJ
(3)
the surface area associated with tree planting;
any plans. prepared by a qualified professional. for on-site
mitig~tion
in the form of tree planting or proposed measures to
protect the remaining trees; and
(1)
@
any additional information specified
Qy
regulation.
The Director of
Modification to limits
Q[
tree canopy disturbance.
Permitting Services may approve
!!
modification to an approved limits
of tree canopy disturbance if:
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ClUlopy
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35-12
239
240
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
241
242
243
244
245
246
247
ill
ill
the action is otherwise required in an emergency.
Qualification gfpreparer.
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
~
248
249
250
251
252
253
254
255
256
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]] Submissions to the Planning Director.
W
General.
The limits of tree canopy disturbance information submitted
to the Planning Director must document the extent of existing tree
canopy and the total area of tree canopy to be disturbed
Qy
the proposed
activity. The Planning Director may use the information to identify the
most suitable and practical areas for tree conservation and mitigation.
257
258
259
260
261
262
(hl
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.
(£)
Incorporation gf the limits gf tree canopy. the natural resources
inventory/forest stand delineation. and forest conservation plan.
If an
263
264
265
applicant is required to submit
~
natural resources inventory/forest stand
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35-12
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
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
cons~rvation
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.
@
Modification to limits
gf
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
the action is required because of an emergency.
W
Submission tor special exception.
If!! special exception application is
subject to this Chapter, the applicant must submit to the Planning Board
any infonnation necess!!fY 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 Mitieate]) Disturbance Mitigation - Fees and
Credits.
W
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.
- 12 ­
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35-12
292
293
294
295
296
297
298
299
300
301
(Q)
Fees paidfor mitigation.
[[Mitigation required to compensate for the]]
loss
or disturbance
~
tree canopy must [[take]]
~~~~
through a fee calculated according to the square footage oftree canopy
~~
the [[form of fees set
lIT
regulation under Method
JJ]
.~~g
~~~~
which the applicant
~
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
.2.
percent of the area of
tree canopy disturbed.]]
Canopy identified as part of any forest
Q!
302
303
304
delineated In an approved natural
inventory/forest stand delineation and subject to
~
resources
forest conservation
plan [[is]] are not subject to mitigation fees under this [[Chaptedl
Section. Until modified or superseded by regulation under Method 3,
the schedule of fees authorized under this Section is:
Incremental Area (sq.
ft.)
From
To
Incremental
Fee ($/sq.
305
306
Q
2,001
4,001
6.001
8,001
10,001
15.001
20,001
30.001
40,001
55,001
2,000
4,000
6,000
8,000
10,000
15,000
20,000
30,000
40,000
55,000
70,000
and above
fU
$0.25
$0.35
$0.45
$0.55
$0.65
$0.75
$0.85
$0.95
$1.05
$1.15
$1.25
$1.35
307
308
!£)
Credits fOr on-site mitigation.
The Director of Permitting Services or
the Planning Director must credit an applicant that mitigates tlle loss of, '
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35-12
309
310
311
312
313
or disturbance to. tree canopy through on-site tree planting or by
protecting trees existing on the property. For each tree planted. the
credit is equal to 25 percent of the assumed area of a crown at 20-years
for different categories of trees if the minimum area of open soil surface
exists as shown in following table. For tree protection. the credit is
equal to the area of canopy protected by approved measures.
Catego~
314
of
Tree Size
Assumed Area of
Cano~~
at
20-~rs
(fel
400
800
1.600
Minimum
O~en
Soil
Surface Area
(ft
2
l
100
200
400
Small
Medium
Large
315
316
317
318
319
320
321
322
323
324
325
326
327
328
329
330
Article 3. Enforcement and Appeals.
55-10. Inspections and notification.
(ill
Permission to gain access.
The Director of Permitting Services or the
Planning Director may enter any property subject to this Chapter to
inspect, review, and enforce.
(hl
Plan to be on site; field markings.
A
£Q2Y
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.
!£l
Inspections.
ill
The Director of Permitting Services must conduct field
inspections concurrently with inspections required for
£I:
sediment control permit under Article! of Chapter
12
for any
activity subject to Section 55-7.
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35-12
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
ill
The Planning Director must conduct
field
inspections
concurrently with inspections required for
~
forest conservation
plan for any activity subject to Section 55-8.
ill
The Director of Permitting Services or the Planning Director
may authorize additional inspections or meetings as necessary
to administer this Chapter.
@
Timing
gf
inspections.
The inspections required under this Section
must occur:
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
ill
the Director of Permitting Services within the time required to
schedule an inspection under Section 19-12; or
the Planning Director within the time required to schedule an
inspection under Section 22A-15.
Coordination.
The Department of Permitting Services and the
Planning Department must coordinate their inspections to avoid
inconsistent activities relating to the limits of tree canopy disturbance.
352
353
354
355
55-11. Penalties and enforcement.
ill
Enforcement authority.
The Department of Permitting Services has
enforcement authority for any activity approved under Section 55-7
356
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35-12
357
358
359
360
361
362
363
364
365
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
and the Planning Board has enforcement authority for any activity
approved under Section 55-8.
®
Enforcement action.
The Director of Permitting Services or the
~
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.
W
Civil penalty.
The maximum civil penalty for any violation of this
Chapter or any regulation adopted under this Chapter is $1,000. Each
day that
~
violation continues is
~
separate offense.
@
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.
W
Administrative order.
In addition to any other remedy allowed
.Qy
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:
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
- 16­
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BILL 35-12
383
384
385
386
387
388
389
390
391
392
393
394
395
396
397
398
399
easement, deed restriction, covenant, or other appropriate legal
instrument; or
ill
(hl
submit
S!
written report or plan concerning the violation.
Effectiveness
gf
order.
An order issued under this Section is effective
when it is served on the violator.
Article 4. Administration
55-13. General.
ill
Regulations.
The County Executive must adopt regulations, including
technical manuals, to administer this Chapter, under Method
The
regulations must include procedures to amend
S!
limits of tree canopy
disturbance.
(hl
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;
400
401
ill
monitoring and enforcing the limits of disturbance and the
limits of tree canopy disturbance; and
402
403
ill
!£)
other appropriate guidance for program requirements consistent
with this Chapter and applicable regulations.
404
405
406
Administrative fee.
The Planning Board and the County Executive
may each,
Qy
Method
J
regulation, establish
S!
schedule of fees to
administer this Chapter.
407
408
@
Reports.
On or before March
1
of each year, the Department of
Permitting Services, the Planning Board, and the Department of
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35-12
410
Environmental Protection each must submit an annual report on the
County tree conservation program to the County Council and County
Executive.
411
412
413
ill
Com12.rehensive
plan
for
mitigation.
The
Department
and
maintain
of
a
414
415
416
417
418
419
420
421
422
423
424
425
426
427
428
429
430
431
432
433
434
435
436
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,
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
£!
person to submit an application for
£!
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 a 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,
£!
sediment
control permit would be required.
55-14. Tree Canopy Conservation Fund.
ill
General.
There is
£!
County Tree Canopy Conservation Fund. The
Fund must be used in accordance with the adopted County budget and
as provided in this Section.
(hl
Mitigation fees paid into the Tree Canopy Conservation Fund.
Money
deposited in the Tree Canopy Conservation Fund to fulfill mitigation
- 18 ­
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35-12
437
438
439
440
441
442
443
444
445
446
447
448
449
450
451
452
453
454
455
456
457
458
459
460
461
462
@
(£}
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
disturbance occurs.
~
site within the same subwatershed where the
Fines paid into the Tree Canopy Conservation Fund.
collected for noncompliance with
~
Any fines
limits of tree canopy disturbance
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:
(A)
ill)
establish tree canopy;
enhance existing tree canopy through non-native invasive
and
native
InVaSIVe
specIes
management
control,
supplemental planting, or
~
combination ofboth;
.cg
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.
.em
ill
The canopy established under paragraph (l)(A) should shade
impervious surfaces, manage stormwater runoff, and generally
increase tree canopy coverage. Trees native to the Piedmont area
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35-12
463
464
465
466
467
468
469
470
471
472
473
474
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 sub watershed where
the project is located. Otherwise the tree canopy may be
established anywhere in the County.
Sec. 2. Transition.
This Act does not apply to any person that had an
approved sediment control permit before this Act took effect. or to any person that
had an approved fmal forest conservation plan as required under Chapter 22A before
this Act took effect unless the property owner submits to the Planning Director an
application to amend the approved final forest conservation plan.
Approved:
475
476
Nancy Navarro, President, County Council
477
Date
Approved:
478
479
Isiah Leggett, County Executive
480
Date
This is a correct copy ofCouncil action.
481
482
Linda M. Lauer, Clerk of the Council
Date
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,"'(1/
\' .
r~~
renewlngmontgomery
·
Tree Canopy Bm 35-12 was introduced without including comments from the
building industry so it is flawed beyond the ability to amend it. There has
never been any study or data that demonstrates there is a problem that
requires legislation.
The most recent MNCPPC study shows our canopy is
thriving by any standard.
Why rush to this far reaching legislation that is
based on anecdotal evidence. Renewing Montgomery has a better proposal.
Our proposal provides more incentives for the property owner to replant trees
on their property and avoids devaluing properties that have trees. In addition
our proposal increases the County canopy by requiring replanting even on
properties without any trees.
County regulations require the removal of the trees
so
the focus should be on replanting a renewable resource.
In summary our
proposal allows the property owner and their neighbors to benefit from
replanting trees, thereby providing an incentive to replant.
The following is a list of the specific improvements our proposal includes:
1. The new trees will be planted where trees are removed and will thrive.
2. The new trees will add value to the property.
3. This alternative will both replace and increase the County tree canopy.
4. The fee in lieu is based on the value of a new tree - not satellite imagery
of canopy square footage, which will include invasive species and canopy
overhanging from adjacent properties. Basing the fee on the value of a
tree will avoid establishing a fee that may be used as a deterrent to home
improvements.
5. All properties subject to a sediment control plan will have a tree planting
requirement - regardless if there were existing trees.
6. Tree replacement requirements will be based on a chart that accounts for
the size of the property to establish a realistic replanting plan.
7. The required trees will be listed on the sediment control plan; therefore
they will be bonded and inspected by the County - exactly like the trees
planted in the right of way. No additional plans, plan review, or County
inspections are needed.
8. We request the Council authorize a County canopy study to identify if
there is a problem to address. The new state law requires the state to do
a canopy coverage assessment for each county, every 5 years. The state
goal is 40%, the current coverage is 50% for Montgomery County. Our
County has 20% more canopy coverage than Fairfax County.
9. The County will educate the general public and citizen associations on
the benefits of trees. The County will promote the various Tree Planting
Tax Incentives that are contained within the new state tree bill before
generating new fees, new regulations, and new staff positions.
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We oppose this Bill because it will not result in planting trees or increasing the
canopy where the trees are removed. Other than a deterrent for home
improvements, it is just another fee that is unnecessary since the County
already has over 6 million dollars to plant trees. The Bill will require additional
engineering and consultant fees both on the private and public side, which will
quickly negate any incentive to replant trees. The fee will add no value to the
lot and effectively transfers the responsibility for replanting trees from the
property owner to the County. The Bill will actually encourage property owners
to remove trees to avoid the fee, and the general public will be outraged that
the County is now regulating trees on their private property which they planted
and maintained.
The advantages of our alternative over the proposed Bill.
1.
Trees will be planted where they are removed not somewhere else.
2. The private sector can plant a tree at a far less cost and faster than
the County.
3. Trees will be planted even if no trees are removed thereby increasing
the County canopy.
4. Will not regulate trees on private property which has historically been
a basic inherent property right.
5. Will not penalize or devalue those who own properties with trees.
6. The new trees will have an immediate impact on those most affected
by the removal of trees.
7. There are no fees that may act as a deterrent to home improvements
or the removal of hazardous trees.
8. The required plan is simple and inexpensive and does not require
additional costs for arborists or engineers.
9. The County has over 6 million dollars for trees. Why essentially tax
only those property owners seeking to improve their property. The
Bill
will
not produce much revenue but will act as a deterrent to those
who want to improve their property.
10. No additional County staff, satellite overlays, or plans are needed
to implement this alternative.
11. Will not penalize property owners for removing invasive species
such as bamboo and mulberry trees.
12. Will not penalize or discourage property owners for removing
dangerous trees prone to storm damage such as poplars and locust
trees.
13. The current source of funding for County-Wide tree planting is
appropriately tax revenue generated on a County-Wide basis. This
Bill avoids targeting only property owners who remove trees on their
private property.
14. A current canopy study will allow the County to evaluate the
existing canopy and evaluate the effectiveness of our proposal.
15. Will allow time for community associations to be educated on the
benefits of trees, incentives, and to provide input.
 PDF to HTML - Convert PDF files to HTML files
19-Jun-13
-
6,001
8,001
10,001
12,001
14,001
16,001
r
to
to
to
to
to
to
to
Tree Canopy Planting Requirement min 1.5" caliper trees for future canopy goals
Optional SF at Maturity Canopy
Coverage
Total
Fee in Lieu
Canopy
Total
#of
#of
lot Size
(2)
Planted
(1)
(% of lot)
Trees Rqd
Ornamental
trees/acre
Shade
6,000
2
1
1
17.4
400.00
1,900
38%
$
8,000
3
18.7
49%
2
1
650.00
3,400
$
10,000
4,900
4
1
19.4
900.00
54%
3
$
5
5,300
12,000
48%
3
19.8
2
$
1,050.00
6
6,800
14,000
4
52%
20.1
2
$
1,300.00
7
8,300
16,000
5
55%
2
20.3
$
1,550.00
8,300
20,000
7
5
16.9
2
46%
J
$
1,550.00
------­
I
I
~
~
;~
,---:i9%l
~
Canopy Area, Diameter, Radius and Estimated DBH of Tree Trunk
!
At Maturitll
SF
Diameter
DBH
Radius
Shade Tree
1500
43.71
29
21.86
=
Om. Tree
11.29
15
400
22.57
=
Athens - Clarke County, Georgia: Mature Tree Canopy Sizes for Trees Growing in Urban Areas
Very Small Canopy: 150 square feet (approximately
12
x
12 feet)
Small Canopy: 400 square feet (20
x
20 feet)
Medium Canopy: 900 square feet (30 x 30 feet)
Large Canopy: 1600 square feet (40
x
40 feet)
~
ICost for 1.5" caliper tree:Ornamental
is
$150 And Shade
is
$250. *
*Based on Montgomery County DPS Bond Estimate for a Street Tree - see link below
http://permittingservices.montgomer'illlLJotYmcl.govjDPSLboocl/l3ondsEstimate.gspx
file:v3(4)
®
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TREE CANOPY
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6,000 SO.FT.
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Q
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20010 FISHER AVENUE, SUITE
F'
POOLESVILLE, MARYLAND
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MAXIMUM CQVERAGE:28.0% PER
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~--~
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:::::::::::J
TREE CANOPY
EXHIBIT-2
R-60 ZONE
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POTOMAC VALLEY
SURVEYS
DATEI06-13-13
20010 FISHER AVENUE, SUITE F
POOLESVILLE, MARYLAND
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DATEI06-13-13
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TREE CANOPY
EXHIBIT-3
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 PDF to HTML - Convert PDF files to HTML files
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TREE CANOPY
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Page 1 of2
Faden,
Michael
From:
Sent:
To:
Cc:
Robert Kaufman [rkaufman@mncbia.org]
Thursday, June 20,201310:34 AM
Faden, Michael
Floreen's Office, Councilmember; Riemer's Office, Councilmember; Berliner's Office, Councilmember;
larry@cafritzbuilders.com; todd@toddwood.com; Clark Wagner; cw@carterbuildersmd.com;
mimibkress@aol.com; Chuck Sullivan
Subject: Tree Canopy Amendments
The Renew Montgomery organization, a separate organization unconnected to MNCBIA, recently submitted a
proposal to amend the canopy bill that allows builders an alternative to the canopy calculation and fee
recommended by the County Executive. Under their proposal, a property owner will be required to plant a
specific number of trees on a lot that is being improved with a sediment control permit based on the size of the
lot. The property owner can choose to plant the required number of trees or pay into a fund a fee based on the
cost of a tree replacement using DPS calculations. The addition to the sediment control permit will include a
bond amount for the tree and will include the cost of the tree in determining the application fee based on the
Method 3 Regulations for Land Development permits.
The MNCBIA position has always been to support the canopy goals of the County with an effort to add, save or
replace trees on a lot not covered by the existing Forest Conservation Law during development and if it is not
feasible or desirable to plant the trees on site than to allow the builder/owner to pay into a fund for planting
trees elsewhere in the community. The fee should be based on the actual costs of a planting a new tree
selected from the list of acceptable trees. The high cost (can be up to $8000) of removing mature trees on in-fill
sites serves as a natural deterrent to removing mature trees. Additionally, the value of the lot can be enhanced
with healthy trees offering a further incentive to save trees and plant trees on site.
The alternative proposed by Renew Montgomery meets the objectives of the MNCBIA and therefore the
MNCBIA removes our objection to the bill with the addition of this amendment. We note however that the
proposal shows a gap between lots larger than 20,000 square feet and less than 40,000 square feet. Our
recommendation is to allow the property owner the choice to follow the replacement chart for canopy
disturbance below 20,000 sq. ft. and require the property owner to meet the canopy calculation and pay the fee
for disturbances between 20,000 sq. ft. and 40,000 sq. ft. While there may be occasions where a property
owner may need to clear a significant portion of the lot to meet storm water management grading
requirements, this is likely to be rare and unusual. Perhaps DPS can consider an exemption for storm water
management where the grading of the site may be necessary to clear cut the site to provide the best
management of the flow.
The MNCBIA observes that the County, including the developed parts often called down-county, shows a
significant canopy of over 49% throughout the County and over 60% in Bethesda. Perhaps the best it has been
in the past 200 years. We also note, that the major reason that builders today clear trees on in-fill sites is to
meet the recently passed storm water requirement for 100% management ON-SITE. Given the extraordinary
existing canopy and the conflict with the County's own regulations, the canopy bill remains problematic at best.
But we can still make a reasonable contribution to conserving our precious tree canopy. We can help by
removing old trees or invasive species or trees inappropriate for urban environments and replace them with
trees more appropriate. This can help minimize damage during severe storms and may help reduce
maintenance costs and still add value to our neighborhoods. As an industry, we are proud of our contribution to
the canopy of the County through the Forest Conservation Law and through our efforts to save or plant trees as
part of our landscape designs. Trees clearly add value to a home, a community and a County.
S. Robert
Kaufman
6/20/2013
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Page 1 of 1
Faden, Michael
From:
Edwards, Stan
Sent:
Friday, June 21,20132:35 PM
To:
Berliner's Office, Councilmember; Riemer's Office, Councilmember; Floreen's Office, Councilmember;
Faden, Michael; 'Iarry@cafritzbuilders.com'; 'todd@toddwood.com'; 'cw@carterbuildersmd.com';
'mimibkress@aol.com'; 'cwagner@pleasants.org'; 'chuck.csh@verizon.net'
Hoyt, Bob; Miller, Laura; Boucher, Kathleen; Jones, Diane; Brush, Rick; Etheridge, Mark; Mihill, Amanda
Cc:
All,
Thank you for the proposed canopy bill alternative offered by Renewing Montgomery. We have had a chance to
do a quick review of it and offer the following initial thoughts:
1.
One goal of Bill 35-12 was to encourage the retention of existing canopy by encouraging a reduction in the
size of the LOD on the lot, to possibly avoid removing trees and to reduce the fee. The addition of a credit
for protecting trees further encourages retention of existing canopy. There doesn't seem to be any
incentive in the Renewing Montgomery proposal to retain trees because a developer that attempted to
conserve trees on a lot would have the same planting/fee requirement as a developer who would clear the
same lot.
Renewing Montgomery's proposal requires all lots to plant a minimum number of trees. This imposes
requirements on lots with no trees to impact or on lots with trees even if none are impacted. Bill 35-12
imposes no requirements on activity that does not impact canopy.
The proposed credit for tree planting under Bill 35-12 included a requirement of a minimum amount of soil
area to ensure that planted trees have a reasonable chance to grow to their expected size. Does the
Renewing Montgomery proposal include such a requirement?
Builders have suggested (and we have not argued otherwise) that there is no room on many small lots to
plant trees once the market required house/driveway, utilities, stormwater management features, etc. are
taken into account. However, the drawings provided with the proposal don't include this infrastructure. In
addition, while our experience may be limited, it seems there are very few new homes without at least a 2­
car driveway, and most have much larger patios/decks than shown in the sample drawings. Inclusion of
all of these features might alter the ability to plant the trees shown on the drawings, and would certainly
affect the likelihood that the trees would grow to maturity.
The Renewing Montgomery proposal appears to require the planting of trees even where they may not be
wanted by the ultimate owner of the property (which makes it unlikely that the tree once planted will
survive). An important consideration of Bill 35-12 was that it did not mandate that property owners plant
trees where they were not desired. Rather it provides for the development of a comprehensive canopy
program along with the funds to plant and care for trees.
Given the issues noted in #4, it would appear in many cases the proposal would result in the payment of a
fee in lieu as opposed to the plantings shown on the drawings. A quick analysis of the 9,000 square foot
lot that we included in our presentation for the June 24 work session shows that the fees due under Bill 35­
12, not including any credit for protecting existing trees or planting new ones, would be $2,278. The fee
under the Renewing Montgomery proposal (assuming no trees are planted) would be $900.
2.
3.
4.
5.
6.
We look forward to further discussion of these issues.
Stan Edwards
Division of Environmental Policy & Compliance
Department of Environmental Protection
Montgomery County, MD
240-777-7748
6/2112013
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July 2, 2013
Dear Council Members,
We would like to thank Council members Hans Riemer and Nancy Floreen for their time and input in
considering our alternative to Tree Canopy Bill 35-12. In addition we truly appreciate the meetings with
Stan Edwards and Laura Miller as we reviewed newly constructed homes in Bethesda to resolve practical
issues. The result of this collaboration is the attached truly progressive Tree Planting Plan that is
designed to maintain the 50% canopy the County currently enjoys.
Through the process of these meetings we agreed on the following issues:
• The County and property owners seeking to improve their homes have a shared goal of
maintaining tree canopy in the same areas where trees are removed.
• Tree preservation on lots under 20,000 sq ft is not feasible because of storm water management,
driveways, utilities, and concerns over the long term safety of trees whose critical root zone may
be impacted by development activity. Accordingly neither the Bill nor the Tree Planting Plan
saves trees but instead focuses on planting trees.
• There is sufficient room on redeveloped lots for newly planted trees to have a reasonable chance
to grow to maturity. DEP will allow the use of the right of way to be included in the needed tree
planting area.
• No matter what legislation is adopted, or even if nothing is adopted, data on the existing canopy,
the number and types of trees planted, location of trees planted, survival rates, etc. would be
valuable information to evaluate tree concerns, goals, and progress.
The Tree Planting Plan will result in the following advantages over the Bill:
1. Trees will be planted by the Permittee immediately following construction on the property where
the trees were removed.
2. The Renewing Montgomery proposal is more stringent than the Canopy Bill because it requires
planting trees even on lots where no trees were removed.
3. The tree planting will be bonded as part of the sediment control plan.
4. No additional consultants, plans or permits are required; it is easy and inexpensive to implement.
5. A simple tree requirement chart will allow for the necessary flexibility to locate the tree after
construction is completed.
6. Tree species and planting specifications will be determined by the County.
7. This plan will not cause some to either take down existing trees to avoid the fee, or discourage
some from planting trees to avoid the fee.
8. If tree planting is not possible, a fee in lieu will be required before the bond is released.
9. The fee in lieu is based on the value of a tree as determined by County bonding requirements
instead of an interpreted methodology.
10. Properties with existing trees are not devalued because of tree removal fees.
11. This plan avoids the concern that the regulation of trees on private property infringes on property
rights.
12. This plan is not anti-business or anti-development and provides certainty so that infill
development will continue to improve storm water management and triple tax revenue.
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Modifications to the previously submitted Tree Planting Plan
• It
is the experience of builders that over 85% of the trees we plant survive as they all come with a
one-year warranty and homeowners do an excellent job at maintenance. DEP estimates only 25%
of newly planted trees survive. However we both agree that there is no reliable data to know the
survivability rate of trees planted on private property in down-County areas that are maintained
by homeowners. In an effort to account for an 80% survival rate, we have increased our "shade
tree" planting requirements by 25%.
• At the request ofDEP we have also revised our chart to include all properties under 40,000 sq ft,
which will address all properties not subject to the Forest Conservation Law. This addresses
DEP's preference to have one regulation that applies to all properties instead of alternatives.
Therefore the Tree Planting Plan would replace the proposed Tree Canopy Bill.
• In addition, we have specified a certain mandatory number of trees that must be planted on the
improved property to ensure that some trees will be planted to start the next generation of tree
canopy.
• In exchange for this compromise we request that no further tree legislation be considered until a
tree canopy study can demonstrate over at least a 5-year period the effects of this progressive
Tree Planting Plan.
These are complicated and far reaching issues that involve property rights, property values, and who pays
for a public benefit. We believe this Tree Planting Plan achieves all the stated goals of the parties who
participated in this collaboration. Your consideration of this request is greatly appreciated.
Sincerely,
Laurence Cafritz
Renewing Montgomery
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Renewing Montgomery Proposed Tree Canopy Planting Requirement min 1.5" caliper trees for future canopy goals
7/2/2013
Total
Lot Size
Trees Rqd
2
3
4
5
6
7
7
7
*
#
of
Shade
1
2
3
3
4
5
5
5
Optional
SF at Maturity
Canopy
Planted (1)
1,900
3,400
4,900
5,300
6,800
8,300
8,300
8,300
#
of
Ornamental
1
1
1
2
2
2
2
2
Total
trees/acre
17.4
18.7
19.4
19.8
20.1
20.3
16.9
10.2
Fee in Lieu
$
$
$
$
$
$
$
$
Canopy.
Coverage
(% of lot)
38%
49%
54%
48%
52%
55%
46%
38%
-
6,001
8,001
to
to
6,000
8,000
10,000
12,000
14,000
16,000
20,000
40,000
to
10,001 to
12,001 to
14,001 to
16,001
20,001
to
<
(2)
400.00
650.00
900.00
1,050.00
1,300.00
1,550.00
1,550.00
1,550.00
~
r-s.tl
~~:~
I
SF
Diameter
I48%l
~
Canopy Area, Diameter, Radius and Estimated DBH of Tree Trunk
!
DBH
Radius
1500
43.71
21.86
29
Orn. Tree
400
22.57
11.29
15
Athens - Clarke County, Georgia: Mature Tree Canopy Sizes for Trees Growing in Urban Areas
At
Maturit~
Shade Tree
=
=
Very Small Canopy: 150 square feet (approximately 12 x 12 feet)
Small Canopy: 400 square feet (20 x 20 feet)
Medium Canopy: 900 square feet (30 x 30 feet)
Large Canopy: 1600 square feet (40 x 40 feet)
~
Cost for 1.5" caliper tree:Ornamental is $150 And Shade is $250. *
*Based on Montgomery County DPS Bond Estimate for a Street Tree see link below
httR:LLRermittingservices.montgomer~count~md.govlDPSLbondLBondsEstimate.asQx
*
Increase shade tree planting count by 25% to account for survivability.
Then round up when reaching 0.5 above whole number.
On lots greater than 8000 SF, a minimum of 2 shade trees must be planted on site.
file:v3(5)
@
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Notes Regarding June 27, 2013 DEPlRenewing Montgomery Meeting
Items where we appear to agree:
l.
We have a shared goal of maintaining and improving the tree canopy in the County through the
conservation of healthy trees where possible, the removal of unhealthy trees where prudent, and
the planting and care of new trees where appropriate.
2. The public could benefit from information about (a) the benefits of trees, (b) procedures for
proper tree care, and (c) the availability of incentives that support the planting of new trees.
3. There is a great deal of passion in the community about trees, but there is no consensus on the
need for, or approach to, additional tree regulations.
.
4. The basis for mitigation under Bill 35-12 is the amount of canopy that is disturbed as a result of
development activity. The basis for mitigation under the Renewing Montgomery proposal is the
size of the lot where the development occurs.
5.
It
is difficult, if not impossible, to preserve trees during the approved redevelopment of smaller
lots due to the new larger house, driveway, and other structural elements;
gas,
electric, water, and
other utilities; requirements for stormwater management on the property; and concerns over the
long-term safety of trees whose critical root zone may have been impacted by development
activities.
6. Neither proposed Bill 35-12 nor the Renewing Montgomery alternative require the saving of trees
during the development process.
7. Ideally, when canopy is lost due to development, new canopy of a similar character (e.g., new
canopy trees to replace removed canopy trees) with a reasonable chance to grow to maturity
would be planted on the same lot. This holds true with both the Renewing Montgomery proposal,
as well as Bill 35-12.
8. There is sufficient room on some redeveloped lots for newly planted trees to have a reasonable
chance to grow to maturity.
DEP believes:
1.
There should be one tree canopy law that applies to lots of all sizes.
2. No matter what legislation is adopted (or even if nothing is adopted), we think data on the number
and types of trees planted, location of trees planted, survival rates, etc. would be valuable
information.
3. Property owners will not necessarily maintain new trees that they did not request. This is
understandable as the property owner may want open space for a lawn, a place for children to
play, sunlight to a garden, etc.
4. Trees are living things and, like most living things, have remarkable adaptations. Many trees
grow, and even thrive, in harsh conditions. However, the presence oflarge trees does not mean
that every tree will behave the same way. We cannot see the many trees that were planted (or
grew naturally) that did not survive. This mortality rate varies due to a number of factors. The
2.3
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proposed planting credit under Bill 35-12 assumes four trees must be planted to under reasonable
conditions in order for one to reach maturity. However, there is scientific research that suggests a
much higher number is needed and other jurisdictions, such as DC, require more trees. Renewing
Montgomery suggests their proposal will result in 50% tree canopy coverage over time. This
would only occur if 100% of the planted trees survive to maturity.
5. The relative stringency of Bill 35-12 and the Renewing Montgomery proposal, and the potential
replacement of lost canopy under each, depends on the character of the lot being developed, as
well as the nature of the redevelopment.
6. Bill 35-12 is a reasonable approach to replacing some of the canopy lost through the development
process. Reasonable modifications could be considered, such as increasing the credit for planting
trees, and allowing part of the ROW to be included in surface area requirements.
7. The Renewing Montgomery proposal is not DEP's preferred option but could be a potentially
workable alternative if
it
including the following:
a. A minimum required planting area specified for each type oftree (canopy, ornamental,
etc.) planted, which may include the area in the ROW between the house and the
sidewalk and outside of public utility easements.
b. An increase in the required number of trees to be planted on each lot to account for
mortality.
Note: The Renewing Montgomery proposal may raise legal issues that need to be reviewed
by the County Attorney related to the relationship between the activity being conducted on
the lot (i.e., the removal of trees) and the mitigation required.
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Amended staff recommendations presented to the Planning Board on January 10,
2013.
Replace staff recommendations 7 and 8 of the staff report with new
recommendation #7 below
55-11. Penalties and enforcement.
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.
®
Civil Enforcement
actions.
For any activity subject to Chapter 55-7
or 55-8 t:fhe Director of Permitting Services or the Planning Director
may bring any civil action authorized by law under Sections 1-18, 1­
19, and 1-20 to enforce this Chapter or any regulation adopted under it
except that the maximum civil fine permitted is as stated in 55­
II(c).may issue a notice of violation, corrective order, stop work
order, or civil citation to
Q!:!Y
person that causes or allov/s a violation
of
this
Chapter.
W
Civil fincpcBaltics.
The maximum civil tlnepenalty for any violation
of this Chapter or any regulations adopted under· this Chapter is
$1,000. Each day that
f!
violation continues is g separate offense.
@
Other remedies.
In
addition to ooy other penalty under this Section,
the Planning Board
mm:
seek
any
illmf:Opriate relief authorized under
Section 22A 16.
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ADDENDUM
T&EITEM2
July 8, 2013
Worksession 5
MEMORANDUM
TO:
FROM:
Transportation, Infrastructure, Energy & Environment Committee
.}..~Michael
Faden, Senior Legislative
Attorn~e~
._iJ).j
\ Amanda Mihill, Legislative Attorney
()f1V<fV'
- .
Worksession 5:
Bill 35-12, Trees
Tree Canopy Conservation
SUBJECT:
After the Council staff packet went to print, we received the attached documents: DEP
Response to the Renewing Montgomery Alternative, dated July 5, and Trees Matter Coalition
letter, dated July 8.
F:\LAW\BILLS\1235 Tree Canopy Conservation Program\T&E Memo 5.Doc
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DEP Response to the June 2, 2013 Renewing Montgomery Alternative to Bill 35-12
The Department of Environmental Protection (DEP) has reviewed the revised proposal submitted by
Renewing Montgomery dated July
2,2013
and offers the following comments. The dialogue we have
had with Carter Willson, Chuck Sullivan, Todd Wood, Mimi Kress, Bob Kaufman and other
representatives of the building community has been informative and has led to a shared understanding
on a number of issues. Although the County Executive's original proposal remains our preferred option
because it ties a property owner's obligation directly to the extent of the damage to the resource (tree
canopy) caused by the development activity, the alternative approach offered by Renewing
Montgomery is a potentially workable concept, as we have noted previously. Aside from making a
property owner's obligations the same irrespective of whether trees are lost or damaged, the main
stumbling block for DEP remains the concept's assumption that all newly planted trees wtlilive to full
maturity.
DEP has reviewed literature, discussed mortality with other jurisdictions, and had extensive discussions
with the building community about tree mortality and the correct planting ratio to use to ensure that at
least one tree grows to maturity. DEP cited Washington, DC's law, which may require up to
12
trees to
be planted to replace one mature tree. Other jurisdictions use an "inch for inch" replacement
philosophy, i.e., when a tree that is
20"
in diameter is removed,
10
two-inch trees must be planted in its
place. Renewing Montgomery's original proposal was essentially a one-to-one ratio, meaning they
assume every tree that is planted will grow to maturity. Renewing Montgomery's revised proposal
increases the number of shade trees required to be planted by 25% over their original proposal (because
the numbers are small the effective increase is one additional tree per lot). This still does not provide a
reasonable expectation that the trees that are planted will result in canopy that replaces the canopy
that is lost as part of the development process.
To address this concern, DEP offers two alternative proposals. Option 1 would be to double the number
of trees that would need to be planted under the original Renewing Montgomery proposal. Option
2
would be to triple the number of shade trees planted under the original Renewing Montgomery
proposal and eliminate the required planting of ornamental trees. The attached spreadsheet provides
the rationale for these options. There is a lot of data on this spreadsheet, and DEP will be prepared to
discuss it in detail at the July
8, 2013
work session if necessary.
There are two tables on the spreadsheet. The first table shows the assumed canopy that would be
achieved over time under the various proposals if all the planted trees grew to their assumed mature
canopy size. Renewing Montgomery has stated that the goal of their proposal is to result in 50% canopy
coverage, which we think is a reasonable objective. DEP's Option
1
results in approximately twice as
much canopy as required to achieve 50% canopy coverage if all the planted trees grew to their assumed
mature canopy size. In other words, under this proposal the expectation is that two trees would need to
be planted to have one grow to maturity. Option
2
results in approximately three times as much canopy
as required to achieve 50% canopy coverage if all the planted trees grew to their assumed mature
canopy size. In other words, under this proposal the expectation is that three canopy trees would need
to be planted to have one grow to maturity. While DEP believes both of these options realistically
address mortality of small trees, Option
2
will result in the most potential for mature canopy.
The second table shows the fiscal implications of the various proposals, assuming fees were paid under
each option.
July 5,
2013
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A couple of other things should be noted:
DEP thinks that it is best for the County to use one approach to regulating canopy not covered
by the Forest Conservation Law. Our modifications to the Renewing Montgomery concept
should, logically, be applied to properties of any size.
DEP proposes that the limits of disturbance (LOD), rather than lot size, be used in these
calculations. We believe this is a fairer approach, particularly for larger lots, where the
development plan may be more easily altered to reduce the LOD and save trees. Not only
would this provide a potential incentive to limit the disturbance to the minimum area necessary
for the development activity, it would also be more reasonable, for example, in cases where a
Sediment Control Permit is required to put in a pool. This activity might disturb 5,000 square
feet on a 40,000 square foot lot. It would not be reasonable to expect the planting of trees as if
the whole lot had been disturbed.
The alternatives proposed herein are DEP's. We have not had the opportunity to review them in detail
with the Department of Permitting Services or the Planning Department, which would be the
implementing agencies of Bill 35-12 as originally proposed. Nor have we had a chance to review this
with the County Executive.
We look forward to continued discussion of these issues.
July 5, 2013
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Suggested DEP Alternatives in Response to Renewing Montgomery's July 2, 2013 Proposal
Projected Canopy Coverage Assuming 100% Survival of All Trees Planted
Assumed
LOD
for
LOD
Calculation
6,000
6,000
0 to
8,000
7,000
6,001 to
8,001 to
10,000
9,000
12,000
10,001 to
11,000
12,001 to
14,000
13,000
16,000
15,000
14,001 to
18,000
16,001 to
20,000
40,000
30,000
20,001 to
See Notes for LODs above 40,000 sq. ft.
Dollars
Assumed
LOD
for
Calculation
Assumed
50%
Canopy
Sq.
Ft.
3,000
3,500
4,500
5,500
6,500
7,500
9,000
15,000
Assumed
50%
Canopy
Sq.Ft.
3,000
3,500
4,500
5,500
6,500
7,500
9,000
15,000
Assumed
Bi1l3S-12
Canopy
Sq. Ft.
4,500
6,000
9,000
12,000
15,000
18,000
22,500
49,500
Original RM
Shade
1
2
3
3
4
5
5
5
Orn.
1
1
1
2
2
2
2
2
Sq. Ft.
1,900
3,400
4,900
5,300
6,800
8,300
8,300
8,300
Revised RM
Increase Shade Trees 25%
Shade
Orn.
Sq.
Ft.
1
3
4
4
5
6
6
6
1
1
1
2
2
2
2
2
1,900
4,900
6,400
6,800
8,300
9,800
9,800
9,800
Proposed DEP 2
Proposed DEP 1
Double Original #'s for All Trees Triple Original #'s Shade Trees
Sq. Ft.
Shade
Sq. Ft.
Shade
Orn.
Orn.
2
4
6
6
8
10
10
10
2
2
2
4
4
4
4
4
3,800
6,800
9,800
10,600
13,600
16,600
16,600
16,600
3
6
9
9
12
15
15
15
0
°
°
°
4,500]
9,00°1
13,500
i
13,500
18,000,
22,500
22,500
22,500
°
0
0
°
Original RM
Bill 35-12
Fee
$850
$1,025
$1,425
$1,875
$2,375
$2,925
$3,850
$8,250
Shade
1
2
3
3
4
5
5
5
Orn.
1
1
1
2
2
2
2
2
In-Lieu
$400
$650
$900
$1,050
$1,300
$1,550
$1,550
$1,550
LOD
6,000
6,000
° to
7,000
8,000
6,001 to
8,001 to
10,000
9,000
10,001 to
11,000
12,000
12,001 to
14,000
13,000
16,000
15,000
14,001 to
20,000
18,000
16,001 to
40,000
30,000
20,001 to
See Notes for LODs above 40,000 sq. ft.
Revised RM
Proposed DEP 1
Proposed DEP 2
Increase Shade Trees 25%
Double Original #'s for All Trees Triple Original #'s Shade Trees
In-Lieu
In-Lieu
In-Lieu
Shade
Orn.
Shade
Orn.
Shade
Om.
1
1
$400
2
2
$800
$750
3
4
$1,300
a
$1,500
3
1
$900
2
6
2
4
1
$1,150
6
$1,800
9
$2,250
a
2
$1,300
6
4
9
$2,250
4
$2,100
2
$1,550
8
4
$2,600
12
$3,000
5
0
6
2
$1,800
4
$3,100
15
$3,750
10
°
6
2
$1,800
10
4
$3,100
15
$3,750
a
6
2
$1,800
4
$3,100
10
15
$3,750
a
°
°
Notes
(1) Planting may occur anywhere on the lot (including outside the LOD) as long as sufficient space is available.
(2) Assumes minimum open surface planting area of 400 sq. ft. for shade trees and 100 sq. ft. for ornamentals (area may include ROW between the house and the sidewalk
outside of any public utility easement)
(3) Assumes Renewing Montgomery's proposed costs for trees based on DPS bond requirements ($250/shade tree, $lS0/ornamental tree)
(4) Assumes Renewing Montgomery's proposed canopy coverage for mature trees (1,500 sq. ft./shade tree
@
29" dbh, 400 sq. ft./ornamental tree
@
15" dbh)
(5) For LODs greater than 40,000 sq. ft., prorate the 40,000 sq. ft. rate to the total LOD. Example: 100,000 sq. ft. LOD requires 2.5 times the 40,000 sq. ft. rate
(100,000 sq. ft. divided by 40,000 sq. ft. :: 2.5; then 2.5 times the number of trees required under the 40,000 sq. ft. rate equals the number of required plantings)
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TREES MATTER COALlTlON
- - - - - - . - - - -
.........
---~-
..
- - . -
...
July 8, 2013
COII,,!:'rv;ltion
Montgomery
The Honorable Roger Berliner, Chair, and Committee Members
Montgomery County Council Transportation & Environment Committee
100 Maryland Avenue
Rockville, MD 20850
Robert Hoyt, Director
Montgomery County Department of Environmental Protection
255 Rockville Pike
Rockville, MD 20850
Dear Chair Berliner, Councilmembers Riemer and Floreen and Director Hoyt:
Thank you for the exhaustive work the committee and Department of Environmental Protection (DEP)
has done to date on the urban canopy bill, Bill 35-12. We are renewing our support for Bill 35-12.
After years of discussions with opponents of this bill and many compromises and negotiations along
the way, we stand in support of Bill 35-12, Option 2 and the recommendations as outlined in the
attached document:
DEP Response to the June
2,
2013 Renewing Montgomery Alternative to Bill 35­
12. We urge the committee to move forward, vote favorably on Bill 35-12 and recommend thatthe
bill be moved out ofthe T&E Committee on July 8
th
and sent forward for Council action.
We agree with the concept of assigning financial value to the tree canopy we need for a healthy and
sustainable quality of life in Montgomery County. As we have noted in the past, mature tree canopy
offers not only a multitude of environmental services but provides economic return in terms of energy
efficiency, efficient stormwater management and financial value added to residential and commercial
property.
It
is imperative that the Council pass Bill 35-12 in a form that will offer the highest level of
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replacement of mature over-story trees that are lost to new development. For too long, our county has
relied solely on a Forest Conservation Law (FCL) that has shown modest results for forested areas but
was never intended to address loss of tree canopy in urban areas as well as trends in development that
have changed significantly since the FCL was drafted in the early 1990s. Therefore, our coalition
stands behind the Executive's Bill 35-12 and the regulation that the bill provides for an important
natural asset. In particular, we support a countywide tree planting plan as a component of Bill 35-12.
A well-coordinated countywide tree-planting plan must be incorporated into Bill 35-12. We hope to
see language strengthened in the Bill that will address coordination between the DEP, the Department
of Transportation street tree program, the Maryland-National Capital Parks and Planning Commission
and the Department of Permitting Services.
Option 2 as described in the DEP response provides for a 3:
I
planting ratio for shade trees and
eliminates the required planting of ornamental -- under story -- trees. We believe this is a sound
approach since over-story or major shade trees will provide the best canopy benefits over the years.
DEP's rationale is correct for the 3: 1 ratio as
it
considers survival rates that point to maintaining a 50%
countywide canopy percentage, and notes that at least three canopy trees need to be planted in
order for one newly planted shade tree to survive and grow to full size.
We also agree with DEP's proposal that limits of disturbance (LOD), rather than lot size, be used in
calculations for canopy replacement. As DEP's response notes, using LOD will offer more
opportunities to either save existing trees on a lot or replanting more and larger shade trees by reducing
the LOD on a development plan. However, we would like to see regulations addressing options for
WFST MONTGOMERY
CoUNTY CITIZENS
AsSOCI"TlON
NoRBECK MEAOOWS
CIVIC AsSOCI"TION
CHEVY CHASE WFST
NEIGHBORHOOD
Associ"
TlON
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protecting tree roots on adjacent lots as part of a larger tree-save scenario if the LOD is used in the calculations. While using
the LOD seems fair, we would like to point out that reducing the LOD should not mean damaging the critical root zone of
mature shade on adjacent sites when a site is being developed.
In addition to DEP's "Option 2" for a replanting ratio in Bill 35-12 and the use of the LOD in calculations for replacement, we
suggest that the bill language be amended to address the following:
• Instead of the tiered fee structure DEP proposes, we propose a flat fee of $1.00 per square foot for canopy
removal. This will simplity the fee structure and streamline the collection of fees.
• A county-wide planting plan coordinated with DOT, DEP and Parks and Planning involved and reporting on an
annual basis to the Council, the Executive and Planning Board Chair regarding progress.
• An arborist must be involved in the tasks that DPS will undertake to implement Bill 35-12. The legislation
proposes to delegate DPS with a new role in implementation of tree canopy regulations, yet DPS is being assigned
a role for which they presently have no experience or expertise. There must be an ISA-certified arborist within
DPS who has the technical knowledge to determine what trees can be saved on a plan or should be saved, or what
species and size should be replanted to replace canopy that is destroyed. Only an ISA-certified arborist and staff
can fully implement the legislation and regulations in an accompanying technical manual for both tree bills.
The time has come for urban canopy legislation that will protect our canopy for future generations. Bill 35-12 must be
adopted to cover what is not addressed in the existing FCL so that our tree legislation will keep pace with trends in
development patterns.
Thank you for allowing us to comment on the DEP response. Before closing, we emphasize that this legislation must not be
withdrawn or tabled to accommodate one small group of infill builders and that - rather than an alternative to no legislation­
a coordinated county-wide planting plan be a component of Bill 35-12. We urge you to move Bill 35-12 forward to the
Council.
Sincerely,
Caren Madsen
Conservation Montgomery, on behalf of the TREES MATTER coalition members
Cc: County Executive Isiah Leggett
Council President Nancy Navarro
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PROPERlY ZONED:· R-60
FRONT YARD: 25.0' OR EBL
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REAR YARD: 20.0'
MAXIMUM COVERAGE: 30%
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i
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-----,
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SCALE: 1"=20'
POTOMAC VALLEY
SURVEYS
DATEI06-13-13
TREE CANOPY
EXHIBIT-1
R-60 ZONE
6.000 SO.FT. LOT
20010 FISHER AVENUE, SUITE F
POOLESVILLE, MARYLAND
1-888-349-5090
 PDF to HTML - Convert PDF files to HTML files
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-----_
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-
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SCALE: 1"=20'
POTOMAC
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 PDF to HTML - Convert PDF files to HTML files
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 PDF to HTML - Convert PDF files to HTML files
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