Bill No.
41-12
Concerning:
Streets and Roads ­
Roadside Trees - Protection
Revised:
7-23-13
Draft No.
2=0~_
Introduced:
December 11, 2012
Enacted:
July 23, 2013
Executive:
July 31, 2013
Effective:
March 1,2014
Sunset Date:
-!..!.N~on"",e<--
_ _ _ _ __
Ch.
Laws of Mont. Co.
2013
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Berliner and EIrich
AN
ACT to:
(1)
(2)
(3)
(4)
require [[a permit]] certain persons t9 file, and the Department of Permitting
Services to approve, a tree protection plan. and to obtain a right-of-way permit. for
certain activities affecting roadside trees;
require certain persons
to pay into a roadside tree
replacement fund under certain circumstances;
require the County Executive to adopt regulations specifying certain roadside tree
protection, conservation, and replacement standards; and
generally amend the law regarding streets and roads.
Chapter 49, Streets and Roads
Sections 49-35 and 49-36
By adding
hh(lp!~rJ9.
Erosion. Sediment Control and Stonn Water Management
Chapter 49, Streets and Roads
Section 49-36A
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law
by
original
bill.
Deletedfrom existing law
by
original
bill.
Added
by
amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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Bill No. 41-12
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Sec.
1.
Sections 2-112, 8-26, 49-35 and 49-36 are amended and [Section]
Sections 19-71 and 49-36A [is] are added as follows:
2-112.
Jurisdiction.
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*
(c)
*
*
5
The Board has the following appellate jurisdiction.
The Board must Those appeals involve:
hear and decide
each
appeal
taken under:
*
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*
*
[[Permits for grading and construction]] Right-of­
way permits
Section 49-35
*
8-26.
Conditions of permit.
*
*
*
*
*
(ill
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Tree protection.
If any clearing, construction. or development allowed
by any permit issued under this Chapter would result in the trimming,
cutting. removaL or iniurv of any roadside tree (as defined in Section
49-35) or any tree located in a State right-of-way in the County. the
Director must not issue that permit until:
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ill
ill
the applicant obtains a roadside tree care permit as necessary
from the State Department of Natural Resources: and
the applicant has submitted, in connection with the permit applied
for under this Chapter, and the Director has approved. a site­
specific tree protection plan that meets the requirements of
Section 49-36A(d).
The Dwartment must approve or reject each proposed plan within 30
days after receiving
it.
If the Department does not act on a proposed
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Bill No. 41-12
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plan within 30 days, the plan is approved by default. The Department
may require further information after a proposed plan is submitted, and
may extend this deadline once for an additional 15 days to receive any
needed information. The Department also may extend this deadline at
the request ofthe applicant.
(cl
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Regulations.
The Director may
recoI11Ill.~1:1(j.
and the Executive may
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adopt, regulations under Method
(2)
to specify standards and practices
needed to protect and maintain roadside trees. including construction
practices needed to prevent or minimize damage to
roadsid~Jrees.
under
subsection (n)
These regulations must
he
at least as stringent as
applicable state roadside tree care standards and requirements.
19-71.
Tree
Protection.
W
If any clearing. construction, or development allowed by any permit
issued by the Department of Permitting Services under this Chapter
would result in the trimming. cutting. removal. or injurv of any roadside
tree (as defined in Section 49-35) or any tree located in a State right-of­
way in the County, the Director must not issue that permit until:
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the applicant obtains a roadside tree care permit as necessary
from the State Department of Natural Resources: and
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the applicant has submitted. in connection with the permit applied
for under this Chapter. and the Director has approved. a site­
specific tree protection plan that meets the requirements of
Section 49-36A(d), unless the applicant is engaged in an activity
described in Section 49-36A(b)(2l.
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£hl
The Department must approve or reject each proposed tree protection
plan within 30 days after receiving it. If the Department does 1:1ot act on
a.proposed plan within 30 days. the plan is approved by default. The
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Bill No. 41-12
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Department may require further information after a proposed plan is
submitted. and may extend this deadline once for an additional 15 days
to receive any needed information. The Department also may extend
this deadline at the request of the applicant.
££)
The County Executive may adopt regulations under Method (2) to
specify standards and practices needed to protect and maintain roadside
trees. including construction practices needed to prevent or minimize
damage to roadside trees. under this Section. These regulations must be
at least as stringent as applicable state roadside tree care standards and
requirements.
49-35.
[Permits for grading and construction] Right-of-way [[and roadside
tree work)] permit.
(a)
(1)
A person must not construct any road, sidewalk, shared use path,
curb and gutter, driveway, or drainage structure[, or]; begin any
such construction (including clearing,
grading,
and tree
cutting)[,]; or perform any tree work on any roadside tree
(including removing a stump in a County right-of-way), without a
permit from the Director of Permitting Services. Any permit
issued for roadside tree work must comply with Section 49-36A.
In this Article. "roadside tree" means any plant that has a woody
stem or trunk which grows all, or in part. in the right-of-way of
any County public road.
(2)
In this Section and Sections 49-36.1 49-36A, and 49-37, unless
otherwise specified, Director refers to the Director of Permitting
Services and Department refers to the Department of Permitting
Services.
*
*
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Bill No. 41-12
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(b)
The Director must collect
~
fee, set
.!2y
Method
J.
regulation, for each
right-of-way [[and roadside tree work]] permit application. However,
the Director must not collect a fee for any permit to remove:
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[(c)]
@
a tree that endangers a person or property: or
a stump in the right-of-way.
*
*
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*
*
*
[(d)]
ill
Any violation ofthis Section is a Class A violation.
[(e)]
ill
[Half] The Director must refund half the fees required by this Section
[must be refunded] to the applicant if a permit is rejected or withdrawn
[prior to the commencement of] before construction begins.
If an
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applicant proposes to undertake a project using materials, standards, or
specifications superior to those required under this Article, the fees
charged must be computed on the estimated cost of the project as if it
met those requirements.
[(t)]
(g}
[(g)]
(hl
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*
*
*
*
*
*
49-36A.
Roadside tree work.
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ll(a)
Definitions. In this Section, the fOl/owing words have the meanings
indicated:
Certified arborist means
f!.
person who is certified as an arborist
py.
the
International Society
Q[
Arboriculture or who the Director finds has an
equivalent level
Q[
experience and training.
Critical root zone means the minimum area beneath
f!.
tree (typically
f!.
concentric circle not less than
1.5
feet per diameter/inch
Q[
the tree,
measured at
4.5
feet above ground level) that must be protected to
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Bill No. 41-12
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preserve sutJicient root mass to give the tree
g
reasonable chance
gf
long-term survival.
Licensed tree expert means gperson licensed under Title
~
Subtitle
1..
gf
the Natural Resources Article
gf
the Maryland Code or any successor
provision.
Pesticide means a:
ill
chemical or biological preparation used to kill, inhibit, or
regulate growth on
g
targeted plant, plant spore, or plant seed,
including:
fAl
fJll
(Q
an herbicide;
an insecticide;
g
tree growth regulator; and
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(D) a fungicide; or
m
substance or mixture
gf
substances intended:
fAl
(B)
{Q
to prevent, destroy, repel. or mitigate gpest;
for use as gplant regulator, defoliant, or desiccant; or
for use as
g
Wfl!J!.
adjuvant, such as
g
wetting agent or
adhesive.
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Recommended County tree list means
g
list
gf
trees approved
Ill:.
the
Director after consulting the Chief
gf
Tree Maintenance in the
Department
gf
Transportation. The recommended tree list must include
each tree that the Department identifies as suitable for planting on
specific sites and conditions in the right-o{-wQY
gf
gpublic road.
Roadside tree means any single-stem plant that has
g
woogy stem or
trunk that grows all, or in part. in the right-o{-wQY
gf
any County or
State public road or shared use trail. [[Roadside tree includes the tree's
critical root zone.
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n
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Bill No. 41-12
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Tree work means any activity affecting
f!.
roadside tree, including:
ill
removal gf
f!.
roadside tree or
f!.
remaining stump;
planting pruning, root-pruning. or trimming
f!.
roadside tree;
application gfpesticide directly to or in the [(critical root zone
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m
ill
f1l
ill
@
Q/lJ
right-oF-way abutting
f!.
roadside tree;
protection gf
f!.
roadside tree; or
treatment that may adversely affect the health or growth gf
f!.
roadside tree.
Applicability; exceptions.
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The fallowing activities do not require a right-of..way and
roadside
work permit:
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f&
cutting or clearing f!.public utility right-of..way or landfor
an electric generating station licensed under Sections
204. 7-205. 7-207, or 7-208 gf the Public Utilities Article
gfthe Maryland Code, or any successor provision,
~
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any required certificate gf public convenience and
necessity has been issued under Section 5-1603(j) gf
the Natural Resources Article gfthe Maryland Code
or any successor provision; and
(iO
f1ll
the cutting or clearing is conducted in
f!.
!!:f!.Y
that
minimizes the loss gffOrest;
routine maintenance gf
f!.
public utility right-of..way. and
cutting or clearing any tree by a public utilitv as necessary
to complY with applicable vegetation management
requirements or to maintain. repair. replace. or upgrade
any public utilitv transmission or distribution line; or
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Bill No. 41-12
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(Q
cutting or clearing
g
public utility right-ot-way or land for
g
new transmission or distribution line.
m
A licensed tree expert need not obtain
g
permit for work
performed on:
fill
(J}l
g
tree that is uprooted or truncated because
Q[
g
storm or
vehicular collision;
g
tree branch that is broken and contacts
g
telephone.
cable television, electric power. or other wire carrying
electric current; or
(Q
g
tree or tree branch that
g
certified arborist or licensed
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tree expertfinds is endangering gperson or property.
ill
A certified arborist or licensed tree expert who provides tree
work under paragraph
m
must. within one week after an action
is taken, give the Department:
fill
(B)
notice
Q[
the property address,
jf
available. and general
area where the action was taken; and
g
proposed plan to upgrade the work.
jf
necessary, to the
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tree work standards in this Section and applicable
regulations.
The Department must approve, modifY, or reject the proposed
plan. after reviewing the actions taken, within
14
receiving the information.
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rl:m!.J.
after
If
the Department does not act on the
proposed plan within
14
days, the plan is approved
bJ:
default.
The Department
~
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require further information. and
!11m!.
extend this deadline once for an additional
15
rl:m!.J.
in
extenuating circumstances. The Director also may extend this
deadline at the request
Q[
the applicant.
-8­
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Bill No. 41-12
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r2l
Right-of-way and roadside tree work permit required.
ill
The Department must not issue g building or relatedpermit to an
applicant fOr any demolition. clearing, pre-construction activity,
construction. or development that is likely to result in the
trimming, pruning, root-pruning, cutting, removal. or injury
9i
g
roadside tree unless the applicant first obtains g right-or-way and
roadside tree work permitfrom the Department.
m
11411
Except as provided in subsection
(b)(J).
utility located in
Q
right-or-way, such as a:
a right-of-wgy and
Q
roadside tree work permit is required {or any tree work on
tAl
(Jll
{fd
(D)
(Jjd
(F)
sewer;
water or gas
J2iJ2f!.;..
storm drain;
electric. telephone. or television cable or conduit;
sidewalk;
driveway;
sump pump;
gutter outflow line; or
roadway or similar structure.
{Q1
(H)
ill
m
A person
!!J:!JJ!.
receive g right-or-way and roadside tree work
permit to perform tree work
if
the person:
tAl
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holds title to the land where the roadside tree is located;
owns property abutting the right-of-wgy at the point where
the tree is
- - -
located
{fd
is g government agency that has an easement fOr the
public right-or-way where the tree is located;
(D)
is responsible {or providing tree care to the
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Bill No. 41-12
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eE)
@
is an authorized agent gfany gfthese.
Permit issuance and administration.
ill
After receiving an application fOr g right-or-wqy and roadside
tree work permit, the Department
!!1f!J::
meet with the applicant
and conduct an on-site examination gfthe proposed tree work.
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The Department should consult with the Chief gf Tree
Maintenance in the Department gf Transportation regarding any
application under which the applicant would perfOrm tree work.
ill
The Department may issue g permit
if
the applicant shows that
the proposed tree work is necessary to:
fA1
(J}l
protect the health gfthe tree;
eliminate or reduce g hazard to property. public safety. or
health;
{Q
(0)
improve or prevent g deteriorated tree condition;
improve the overall appearance Qfthe right-or-way; or
carry out g development which has received all other
applicable development approvals.
(E)
(1l
The Department may issue:
fA1
g permit fOr g specific tree or group gf trees .fOr specific
tree work fOr g term not to exceed
1
year after the permit is
issued; and
f1ll
ill
g permit ,fOr g comprehensive and continuing program gf
general tree work.
A permit issued under paragraph
(4)m)
must specifY the
~
gf
tree work it covers. as allowed
!zr.
the license gf the person who
will supervise the program.
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Bill No. 41-12
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{Ql
If the Department denies
fl.
permit application, the Department
must notifY the applicant
if
the reason.
The Department may:
(4l
ill
modifY any term or condition gf
fl.
permit to best achieve
the objectives gfthis Article; or
@
suspend or revoke
fl.
permit
if
the holder violates a
condition gfthe permit or
fl.
provision gfthis Section or the
Natural Resources Article gfthe Maryland Code.
lii
Tree work pertormance; inspection; replacement.
ill
Each permittee must take all necessary measures to protect
fl.
roadside tree from damage during all phases gf clearing,
construction, or development gf
fl.
building or other structure,
including installing protective fencing, avoiding soil compaction,
and protecting critical root zones in the right-of-way.
m
ill
A permittee must repair any damage
f!
tree sustains during
construction or development, including any broken limb, root, or
scarred trunk, and any damage caused
fu!.
soil compaction.
(4l
Betore any bond filed with the Department under this
Chapter is released, or
(jf
no bond has been filed) befOre
any certificate gf occupancy or similar final approval is
issued, the Department must inspect each a(focted
roadside tree to determine, after consulting the Chief gf
Tree Maintenance in the Department gf Transportation,
whether the tree has
fl.
reasonable chance gfachieving the
typical maximum age gf
fl.
roadside tree in that location.
@
If the Department does not find that an affocted tree has
fl.
reasonable chance gf achieving the typical maximum age
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Bill No. 41-12
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gf
f!.
roadside tree in that location. or
if
the permittee has
removed
f!.
roadside tree, the Department must require the
permittee to
J2f!J!.
an amount set
replacement fund maintained
Transportation.
(Q
!lY.
regulation into
f!.
tree
!lY.
the Department gf
!lY.
Method
1.
The amount gf J2f!J!.ment must be set
regulation; must be proportionate to the cost gf replacing
each affected tree, using
f!.
replacement ratio specified
!lY.
regulation that takes into account the survival rate gf
newly-planted trees; must be computed according to the
size gf the affected tree; may consider the species, age,
rarity. and historical value
(jf
any) gfthe affected tree; and
must not be less than
$35
per circumference/inch gf the
affected tree.
(D)
The permittee must
J2f!J!.
the required amount within 30
dill!§..
after the Director notifies the permittee that the
payment is required. The Director may treat any unpaid
funds as
f!.
lien on the property where the atfocted tree is
located, and must not issue
f!.
certificate gf occupancy or
similar final approval for the site until
fgJJ..
payment is
received.
{fl
Use gfpesticides.
ill
Any permittee who applies
f!.
pesticide directly to
f!.
roadside tree
must be certified and licensed as required
!lY.
the State
Department gf Agriculture, and must comply with applicable
state regulations.
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Bill No. 41-12
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m
Any permittee who applies g pesticide must only use g pesticide
that is registered fOr that use
f2J!.
the
u.s.
Environmental
Protection Agency and the State Department
Q[
Agriculture. Any
permittee who applies g pesticide must tollow the manufacturer's
label directions tor proper use.
ill
(1.l
BefOre applying g pesticide, g permittee must notify the
Department
Q[
the approximate time and place
Q[
application.
Unless the Department directs otherwise, g permittee must not
apply an herbicide to g tree
ifthe
tree is §.feet tall or higher.
ill
A permittee must remove dead plant material resulting from the
application
Q[
an herbicide
if
removal is necessary fOr safety
reasons.
{§l
A permittee must take reasonable precautions in selecting and
applying gpesticide on or near g roadside tree to:
U1l
avoid the use
Q[
an herbicide on vegetation that
contributes to soil retention. especially at g highway cut or
fill and any other area with g steep slope; and
(B)
prevent stream pollution and damage to any adjoining
property.
{gl
Roadside tree planting.
ill
Any tree that is planted on g public right-oEway must be
Q[
g
species and variety .from the recommended County tree list and
must confOrm to the American Standard tor Nursery Stock or
standards that the Director identifies as equivalent.
m
Each roadside tree planting must comply with g planting plan
approved
f2J!.
the Department after consulting the Chief
Q[
Tree
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Bill No. 41-12
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Maintenance in the Department Q[ Transportation. The planting
plan must cover:
f&
stump removal! including
f!
requirement to fill
resulting hole;
In
any
flll
lId
fJ2l
@
(fl
{Ql
size and!J!/2§. Q[planting stock;
planting specifications;
spacing:
species:
proximity to overhead wires;
care and maintenance; and
any other site consideration.
The County Executive must adopt regulations under
fl1l
@
RegyJations.
Method
2..
that are at least as stringent as applicable state roadside tree
standards and requirements. These regulations
!!1f!J!.
specify further:
ill
ill
criteria tor right-or-way and roadside tree work permit issuance;
roadside
tree
work standards
and practices,
including
construction practices that will minimize damage to roadside
trees;
ill
ill
W
criteria/or the use Q[pesticides; and
roadside tree planting requirements.
I]
Right-or-way permit required.
The Department must not issue a
building or related permit to an applicant for any demolition, clearing,
pre-construction activity, construction. or development that is likely to
result in the trimming. pruning. root-pruning. cutting, or removal of or
injury to. a roadside tree unless the applicant obtains a right-of-way
permit from the Department under Section 49-35.
(b)
Applicabilitv: exceptions.
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Bill No. 41-12
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ill
A person (including a government agency) may receive a right­
of-way permit to perfQ.l':I'l1 tree work on a roadside tree if the
person:
(8J
holds title to the land
\Yher~JherQadside
tree is located:
owns property abutting the right-of-way at the point where
the tree is located:
all
aJ
ill)
is a government agency that has an easement for the public
right-of-way where the tree is located:
is responsible for providing tree care to the tree:
is a public utility; or
is an authorized agent of any of these.
tID
ill
(2J
The following activities are not subject to this Section (except
subsection
(0)
and do not require a right-of-way permit:
(8J
cutting or clearing a public utility right-of-way or land for
an electric generating station licensed under Sections 7­
204, 7-205. 7-207. or 7-208 of the Public Utilities Article
ofthe Marvland Code. or any successor provision. if:
ill
any required certificate of public convenience and
necessity has been issued under Section
5-1603(0
of
the Natural Resources Article of the Maryland Code
or any successor provision; and
(in
all
the cutting or clearing is conducted in a way that
minimizes 1:l1e loss of forest:
routine maintenance of a public utility right-of-way. and
cutting or clearing any tree by a public utility as necessary
to comply with
applicable vegetation management
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Bill No. 41-12
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requirements or to maintain. repair. replace. or upgrade
any public utility transmission or distribution line: or
!1J
ill
(A)
cutting or clearing a public utility right-of-way or land for
a new transmission or distribution line.
A licensed tree expert need not obtain a right-of-way
permit for tree work performed on:
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a tree that is uprooted or severely damaged because
of a storm or vehicular collision:
a tree branch that is broken and contacts a
telephone. cable television. electric power. or other
wire carrying electric current: or
(iii)
a tree or tree branch that a licensed tree expert finds
immediately endangers a person or property.
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A licensed tree expert who provides tree work under
subparagraph (A) must. within one week after an action is
taken. give the Department:
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(ii)
notice of the property address. if available. and
general area where the action was taken; and
a proposed plan to upgrade the work. if necessary, to
the tree work standards in this Section and
applicable regulations.
The Department must approve. modify. or reject the
proposed plan. after reviewing the actions taken. within 14
days after receiving the information. If the Department
does not act on the proposed plan within 14 days. the plan
is approved by default.
The Department may require
further information. and may extend this deadline once for
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an additional 15 days in extenuating circumstances. The
applicant shows that the proposed tree work is necessary to:
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protect the health ofthe tree;
eliminate or reduce a hazard to property, public safety. or health;
improve or prevent a deteriorated tree condition;
improve the overall appearance of the right-of-way; or
carry out a development 'Which has received all other applicable
development approvals.
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Tree protection plan.
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The Department must not issue a right-of-way permit for tree
work under Section 49-35 until the applicant has submitted, and
the Department has approved, a site-specific tree protection plan
that requires the applicant to take all necessarv measures to
protect. and mInImIZe damage during development to. any
affected roadside tree.
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If the advice or consent of any County department. in its role as
owner of or otherwise responsible for the care of any tree
in
a
County right-of-way. is needed or requested before the state
Department of Natural Resources may act on a pennit allowing
tree work on a tree in a County right-of-way. that County
department must not give its adyice or consent until the
Department of Pennitting Services has approved a tree protection
plan under this subsection, Section 8-26, or Section 19-71.
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The Department must approve or reject each proposed tree
protection plan within 30 days after receiving it.
If the
Department does not act on a proposed plan within 30 days. the
J2lan is approved by default. The Department may require further
information after a proposed plan is submitted. and may extend
this deadline once for an additional 15 days to receive any needed
information. The Department also may extend this deadline at
the request ofthe applicant.
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Tree replacement.
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Each permittee who removes a roadside tree in a County right-of­
way must:
CA)
plant a tree from the recommended County tree list in a
County right-of-way, at or near the location of the original
tree, which is suitable to that location, unless the Director
waives this requirement because:
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(in
compliance at the particular site would not be
feasible: or
the removed tree was already dead or posed a
danger to persons or property; and
au
pay an amount into a Street Tree Planting Fund maintained
by the Department of Transportation, unless the Director
waives this requirement because the removed tree was
already dead or posed a danger to persons or property, at a
rate set by regulation that will allow the Department of
Transportation to plant 2 more suitable replacement trees,
or 3 more replacement trees if the Director has waived the
on-site planting requirement because compliance at the
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particular site would not be feasible. at suitable locations in
the right-of-way of a public road in the County.
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The permittee must pay the required amount within 30 days after
the Director notifies the permittee that the payment is required.
The Department of Transportation must use funds in the Street
Tree Planting Fund only to plant trees in the right-of-way of a
public road in the County. and must not use funds received under
this subsection to hire additional County staff or to supplant funds
otherwise appropriated for that pumose.
(±)
In locating. selecting. and planting trees under this subsection. the
Department must:
CA)
give highest priority to those areas of the County. such as
central business districts and other urban and suburban
areas. that have relatively low tree canopy coverage: and
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take every reasonable measure to avoid interference with
utility transmission and distribution lines.
Roadside tree planting.
In this Section.
recommended County tree list
means a list of
trees approved by the Director after consulting the Department of
Transportation. The list must only include trees that are also on
the State recommended tree list and must include each tree that
the Director identifies as suitable for planting on specific sites
and conditions in the right-of-way of a public road in the County.
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Any tree that any person plants on a public right-of-way must be
a species and variety listed on the recommended County tree list
and must conform to the American Standard for Nursery Stock.
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(g)
EnfOrcement.
In
addition to any other procedure or remedy allowed by
law, the Director may issue a stqp work order to prevent or correct any
violation of this Section or any permit issued or plan approved under
this Section. Sections 8-20 and 8-22 apply to any stop work order
issued under this Section.
.
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Regulations.
The County Executive must adopt regulations under
Method (2) to administer this Section that are at least as stringent as
applicable state roadside tree care standards and requirements. These
regulations may include:
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criteria and procedures to issue. deny. modify, suspend, or revoke
permits for work on roadside trees:
tree work standards and practices needed to protect and maintain
roadside trees. including construction practices needed to prevent
or minimize damage to roadside trees: and
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supplementary
roadside
tree
planting
requirements
and
specifications, and criteria and procedures needed to administer
the Street Tree Planting Fund.
Sec. 2. Effective Date.
This Act takes effect on March 1, 2014, and applies to
any permit applied for under Chapter 8. Chapter 19. or Section 49-35 on or after that
date.
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Approved:
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Approved:
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I;rggett,C(;unty Ex c
lye
Date
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This is a correct copy ofCouncil action.
~?h.~
Linda M. Lauer, Clerk of the Council
~3~
';;013
ate
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