AGENDA ITEM 10
September 19, 2017
Public Hearing
ME MO RAN DUM
September 15, 2017
TO:
FROM:
SUBJECT:
County Council
Amanda Mihill, Legislative Attomey(yU\~JI\))£
Public Hearing:
Bill 26-17, Forest Conservation - Amendments
cil President at
Bill 26-17, Forest Conservation - Amendments, sponsored by Lead Sponsor Coun
A Transportation,
the request of the Planning Board, was introduced on July 25, 2017.
scheduled for
Infrastructure, Energy and Environment Committee worksession is tentatively
September 28 at 10:30 a.m.
Bill 26-17 would:
Forest
• require certain administrative and minor subdivisions to comply with the
Conservation Law;
• subject certain conditional uses to the Forest Conservation Law;
• require park development plans to comply with the Forest Conservation Law;
under
• exempt certain modifications to existing residential development property
certain circumstances;
• require certain projects requiring sketch plan approval to submit a forest stand
delineation;
• modify the process for submitting a forest stand delineation;
• alter the maintenance period for forest conservation plans for certain areas;
for
• remove the requirement that tree variances be referred to the County Arborist
recommendation; and
• generally amend laws related to forest conservation.
This packet contains:
Bill 26-17
Legislative Request Report
Planning Board memo
Planning Board staff memo
Fiscal and Economic Impact statement
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26-17
Bill No.
Conservation
Concerning: Forest
Amendments
Draft No.
__l__
Revised:
7/6/2017
July
25, 2017
Introduced:
January
25, 2019
Expires:
_ _ _ _ _ _ _ __
Enacted: _
Executive: _ _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: __,_,_N= on=e"--- ----
Ch. _ _ , Laws of Mont. Co. _ _ __
COUNT Y COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Council President at the Request of the Planning Board
AN ACT
to:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
require certain administrative and minor subdivisions to comply with the Forest
Conservation Law;
subject certain conditional uses to the Forest Conservation Law;
require park development plans to comply with the Forest Conservation Law;
exempt certain modifications to existing residential development property under
certain circumstances;
require certain projects requiring sketch plan approval to submit a forest stand
delineation;
modify the process for submitting a forest stand delineation;
alter the maintenance period for forest conservation plans for certain areas;
remove the requirement that tree variances be referred to the County Arborist for
recommendation; and
generally amend laws related to forest conservation.
By amending
Montgomery County Code, Forest Conservation
Chapter 22A,
Sections 22A-3, 22A-4, 22A-5, 22A-9, 22A-l l, 22A-12, 22A-21, 22A-30, and 22A-31
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.
Deleted from 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. 26-17
1
Sec.
1.
Sections 22A-3, 22A-4, 22A-5, 22A-9, 22A-ll, 22A-12, 22A-21,
22A-30, and 22A-31 are amended as follows:
22A-3. Definitions.
In this Chapter, the following terms have the meanings indicated:
~
~
2
3
4
5
6
7
8
9
Administrative subdivision
means
plan for
proposed subdivision or
resubdivision prepared and submitted for approval
12y
the Planning Director
under Division 50.6 of Chapter 50 before preparation of~ subdivision plat.
*
*
*
Conditional use
means
~
use approved under Chapter 59-7.3 .1.
*
10
11
12
*
*
Development plan
means a plan or an amendment to a development plan
approved under Section 7.7.1.B of Chapter 59 or a floating zone plan approved
under Section 7.2.1 of Chapter 59 or referred to in Division 7.7.1.B of Chapter
59.
*
13
14
15
16
17
*
*
Lot
means for the purpose of this Chapter a tract ofland, the boundaries of which
have been established as a result of deed or previous subdivision or a larger
parcel, and which will not be subject of further subdivision, as defined under
[Section 50-1] Chapter 50, without an approved forest stand delineation and
forest conservation plan
*
*
*
18
19
20
21
22
23
24
25
Minor subdivision
means
fl
plan for
fl
proposed subdivision or resubdivision
prepared and submitted for approval
12y
the Planning Director under Chapter
50.7.
*
*
*
26
Municipal corporation
means a municipa lity without planning and zoning
authority or which has assigned its responsibilities under §5-1603(a) of the
27
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BILL
No. 26-17
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Maryland Code [Subtitle 16 of the Natural Resources Article of the Maryland
Code] to the County.
*
*
29
30
31
32
33
34
35
36
37
*
[Nontidal wetland
means an area regulated as a nontidal wetland under Title
8, Subtitle 12, of the Natural Resources Article of the Maryland Code.]
*
*
*
Park development plan
means an application submitted by the Montgomery
County Parks Departmen t for the construction and developme nt of~ specific
park.
*
*
*
38
39
Planned unit developmen t means a development comprised of a combination
of land uses or varying intensities of the same land use, having at least 20%
of the land permanentl y dedicated to green area, and under an integrated plan
that provides flexibility in land use design approved by the Planning Board
under Section 7.2.1 of Chapter 59 or referred to in Division 7.7.1.B of Chapter
59.
*
*
*
40
41
42
43
44
45
Preliminary Plan of Subdivision
means a plan for a proposed subdivision or
resubdivision prepared and submitted for approval by the Planning Board
under Chapter 50.4 before preparation of a subdivision plan.
*
*
*
46
47
48
49
50
Project plan
means a plan or an amendment to a project plan [approved under
Division 59-D-2] referred to in Division 7.7.1.B of Chapter 59.
*
*
51
52
53
54
55
*
Public utility
means any:
(1)
[the] transmission [lines and the] line or electric generating
[stations licensed under Article 78, Section 54A and 54B or 54-I
-3-
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BILL No. 26-17
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57
of the Maryland Code; and] station; or
(2)
water, sewer, electric, gas, telephone, and cable service [facilities
and lines] line.
*
58
59
*
*
60
61
Site plan
means a plan or an amendment to a site plan approved under Section
7.3
.4
of Chapter 59 or referred to in Division 7. 7. l .B of Chapter 59.
*
*
*
~
62
63
Sketch plan
means
Chapter 59.7.3.3.
~
plan or amendment to
sketch plan approved under
64
65
66
*
*
*
Special exception
means a use approved as a conditional use under Section 7.3 .1
or Section 7.7.l.B of Chapter 59 or referred to in Division 7.7.l.B of Chapter
59.
*
*
*
67
68
69
70
Subdivision
has the same meaning as stated in Chapter 50.
*
*
71
72
*
Watershed
means [all lands lying with an area described as a watershed in the
Countywide Stream Protection Strategy] any area delineated as~ watershed
in the Montgomery County Municipal Separate Storm Sewer System (MS4)
Permit Implementation Program, or any smaller area within the watershed that
is delineated by the State of Maryland as~ 12-Digit watershed.
73
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76
77
78
Wetland
means an area that is inundated or saturated
by
surface water or
groundwater at~ frequency and duration sufficient to support, and under normal
circumstances does support,
~
prevalence of vegetation typically adapted for life
in saturated soil conditions, commonly known as hydrophytic vegetation.
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BILL
No. 26-17
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22A-4. Applicability
Except as otherwise expressly provided in this Chapter, this Chapter applies to:
(a)
a person required by law to obtain an approval or amendment to a
development plan, diagrammatic plan, project plan, floating zone plan,
sketch plan, preliminary plan of subdivision, administrative subdivision,
minor subdivision, or site plan;
(b)
a person required by law to obtain approval of~ special exception or~
conditional use, [approval] or a sediment control permit on a tract of
land 40,000 square feet or larger, and who is not otherwise required to
obtain an approval under subsection (a);
*
*
*
~
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94
95
(d)
a government entity subject to a mandatory referral or
park
development plan on a tract ofland 40,000 square feet or larger which is
not exempt under subsection 22A-5(f);
*
*
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97
98
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105
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107
*
22A-5. Exemptions.
The requirements of Article II do not apply to:
*
*
*
(b)
an agricultural activity that is exempt from both platting requirements
under Section [50-9] 50-3 and requirements to obtain a sediment control
permit under Section [19-2(c)(2)] 19-2(b)(2).
Agricultural support
buildings and related activities are exempt only if built using best
management practices;
*
*
*
(i)
noncoal surface mining regulated under [Title 7 of the Natural
Resources Article of the Maryland Code] Subtitle
~
of Title
12
of the
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No. 26-17
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109
Environment Article of the Maryland Code.
*
(n)
*
*
110
111
112
113
114
115
116
117
any mmor subdivision under [Section 50-35A(a)(2)-(3) involving
conversion of an existing recorded outlot created because of inadequate
or unavailable sewerage or water service to a lot or joining two or more
existing residential lots into one lot,] Division 50.7 of Chapter 50 if:
(1)
the only development located on the resulting lot is a single family
dwelling unit or an accessory structure (such as a pool, tennis
court,o rshed) ;and
(2)
the development does not result in the cutting, clearing, or grading
of:
(A)
(B)
(C)
more than a total of 20,000 square feet of forest,
any forest in a stream buffer,
any forest on a property located in a special protection area
which must submit a water quality plan,
(D)
(E)
any specimen or champion tree, or
any tree or forest that is subject to the requirements of a
previously approved forest conservation plan or tree save
plan[.]; or
there is no proposed land disturbance and
~
declaration of intent is
filed with the Planning Director stating that the lot will not be the
subject of additional regulated activities under this Chapter within
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130
ill
2
years of the approval of the minor subdivision.
(
o)
131
132
133
The cutting or clearing of public utility rights-of-way or land for electric
generating stations licensed under [Section 54A and 54B or Section 541
of Article 78] Sections 7-205 and 7-207 or 7-208 of the Public Utility
Companies Article of the Maryland Code, if:
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No.
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(1)
any required certificates of public convenience and necessity
have been issued in accordance with Section [5-1604(f)]
5-1603(±) of the Natural Resources Article of the Maryland
Code; and
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139
(2)
the cutting or clearing of the forest is conducted so as to minimize
the loss of forest.
*
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*
*
(q)
a special exceptioni or conditional use, application if:
*
*
*
(3)
the total disturbance area for the proposed special exceptio n usei
or conditional use, will not exceed 10,000 square feet, and
clearing will not exceed a total of 5000 square feet of forest or
include any specimen or champion tree;
*
*
*
(t)
a modification to an existin&
ill
non-residential developed property if:
[(1)] (A) no more than 5,000 square feet of forest is ever cleared
at one time or cumulatively after an exemption is issued;
[(2)] ill} the modification does not result in the cutting, clearing,
or grading of any forest in a stream buffer or located on
property in a special protection area which must submit a
water quality plan;
[(3)]
.(Q
the modification does not reqmre approval of a
preliminary [plan of] or administrative subdivision plan;
and
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No.
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[(4)]
.(ill
the modification does not increase the developed area
by more than 50% and the existing development is
maintained[.]_;_ or
ill
residential developed property if:
(A)
.{fil
forest is not impacted or cleared;
the modification is not located in~ stream buffer or located
on property in~ special protection area which must submit
~
water quality plan;
.cg
the modification does not reqmre approval of a
preliminary or administrative subdivision plan;
the modification does not increase the developed area
by
more than 50%; and
the existing structure is not modified.
*
*
*
22A-9. County Highway Projects.
*
*
*
(a)
General.
*
*
*
(2)
The construction should minimize forest [cutting or clearing]
removal, land disturbance, and loss of specimen or champion
trees to the extent possible while balancing other design,
construction, and environmental standards.
The constructing
agency must make a reasonable effort to minimize land
disturbance to avoid the cutting or clearing of trees and other
woody plants.
*
*
*
-
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No. 26-17
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22A-11. Application, review, and approval procedures
(a)
General.
(1)
Coordinated with project review.
The forest stand delineation
and forest conservation plan must be submitted and reviewed in
conjunction with the review process for a development plan,
floating zone plan, project plan, sketch plan, [preliminary plan
of] subdivision plan, site plan, special exception, conditional use,
mandatory referral, park development plan, or sediment control
permit under this Section. The Planning Director must coordinate
review of the forest conservation plan with the Director of
Environmental Protection, the Director of Permitting Services,
the Washington Suburban Sanitary Commission, other relevant
regulatory agencies, and entities that will provide public utilities
to the tract, to promote consistency between the objectives of this
Chapter and other development requirements. To the extent
practicable, entities providing public utilities should design
facilities that will serve a tract in a manner that avoids identified
conservation areas and minimizes tree loss.
*
*
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202
203
204
205
*
(b)
Project requiring development plan, floating zone plan, project plan,
sketch plan, preliminary plan ofsubdivision, or site plan approval.
(1)
206
207
Forest stand delineation.
The applicant must submit to the
Planning Director a forest stand delineation with the application
for a development plan, floating zone plan, project plan, sketch
plan, preliminary plan of subdivision, or site plan, whichever
comes first. Within 30 days of receipt, the Planning Director
must notify the applicant whether the forest stand delineation is
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No. 26-17
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complete and correct.
If
the Planning Director fails to notify the
applicant within 30 days, the delineation will be treated as
complete and correct. The Planning Director may require further
information or provide for one extension of this deadline for an
additional 15 days for extenuating circumstances. The applicant
must submit revised drawings to address comments within 90
days from the date the Planning Director sends comments to the
applicant.
If
the applicant fails to submit revised drawings, the
application is deemed withdrawn. The Planning Director may
provide for one extension of this deadline for extenuating
circumstances.
(2)
Forest Conservation Plan.
(A)
Application.
After being notified that the forest stand
delineation is complete and correct, the applicant must
submit a forest conservation plan to the Planning Director.
If the development proposal will require more than one of
the approvals subject to this subsection, the applicant must
submit a preliminary forest conservation plan to the
Planning Director in conjunction with the first approval
and a final forest conservation plan in conjunction with the
last approval.
If
only one approval subject to this
~
subsection is required, an applicant must submit a
preliminary forest conservation and a final forest
conservation plan at the time of the development
application [and a final forest conservation plan before a
sediment control permit is issued for the tract, but no later
than a record plat is submitted].
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NO.
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(
c)
*
*
*
Project requiring special exception or conditional use approval.
(
1)
Forest stand delineation.
If a special exception or conditional use
proposal is subject to the requirements of this Chapter, the
applicant must submit a forest stand delineation to the Planning
Director before the Board of Appeals may consider the
application for the special exception.
The deadlines for
reviewing a forest stand delineation are the same as in paragraph
(b )(1) of this Section.
(2)
Forest conservation plan.
Upon notification that the forest stand
delineation is complete and correct, the applicant must submit a
preliminary forest conservation plan to the Planning Director. The
Board of Appeals must consider the preliminary forest
conservation plan when approving the special exception or
conditional use application and must not approve a special
exception or conditional use application that [is in conflict]
conflicts with the preliminary forest conservation plan. A final
forest conservation plan must be submitted before obtaining a
sediment control permit, or at the time of preliminary plan of
subdivision or site plan application, if required. The deadlines for
reviewing a final forest conservation plan are the same as m
paragraph (d)(2) of this Section
*
*
*
(e)
Project requiring mandatory referral or Park Development Plan.
(1)
Forest stand delineation.
A person seeking mandatory referral or
£
park development plan for a project that is subject to the
requirements of this Chapter must first submit a forest stand
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No. 26-17
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delineation to the Planning Director for review. The deadlines for
reviewing a forest stand delineation are the same as in paragraph
(b)( 1) of this Section.
(2)
Forest conservation plan.
Upon notification that the forest stand
delineation is complete and correct, the applicant must submit to
the Planning Director a preliminary forest conservation plan. The
Planning Board must consider the preliminary forest conservation
plan when reviewing the mandatory referral application or the park
development plan. The deadlines for reviewing the final forest
conservation plan are the same as in paragraph (d)(2) of this
Section.
*
*
*
273
274
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276
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278
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280
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283
284
285
ill
Proiect requiring sketch plan approval.
ill
Forest stand delineation.
The applicant must submit to the
Planning Director, for approval,
~
forest stand delineation
reviewed concurrently with the sketch plan application. The
deadlines for reviewing
~
forest stand delineation are the same as
in paragraph (b)(l) of this Section. The forest stand delineation
must be approved prior to Planning Board approval of the sketch
286
287
288
289
290
291
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293
plan.
ill
Forest conservation plan.
Upon notification that the forest stand
delineation is complete and correct, the applicant must submit
~
preliminary forest conservation plan to the Planning Director with
the first development application after approval of the sketch plan.
The deadlines for reviewing
~
preliminary and final forest
conservation plan are the same as in paragraph (b)(2)(B) and
(b)(2)(C) of this Section.
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No. 26-17
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*
*
*
.(g)_
Proiect requiring administrative subdivision approval.
ill
Forest stand delineation.
The applicant must submit to the
Planning Director
f!
forest stand delineation before the
administrative subdivision application. The deadlines for
reviewing
f!
forest stand delineation are the same as in
paragraph (b)(l) of this Section.
ill
Forest conservation plan.
Upon notification that the forest .
stand delineation is complete and correct, the applicant must
submit
f!
preliminary forest conservation plan to the
Planning Director. The Planning Director must consider the
preliminary forest conservation plan when approving the
administrative subdivision application and must not
approve an administrative subdivision application that
conflicts with the preliminary forest conservation plan. A
final forest conservation plan must be submitted and
approved before obtaining
f!
sediment control permit, or
record plat, whichever comes first. The deadlines for
reviewing
~
final forest conservation plan are the same as in
paragraph (d)(2) of this Section. If the Director defers the
approval of an administrative subdivision to the Planning
Board, the Planning Board must review and act on the
preliminary forest conservation plan with the administrative
subdivision plan. The deadlines for reviewing
f!
final forest
conservation are the same as in paragraph (2)(C) of this
Section.
22A-12. Retention, afforestation, and reforestation requirements.
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No. 26-17
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*
*
*
(e)
Standards for reforestation and afforestation.
*
*
*
(5)
Priority areas and plantings.
Afforestation and reforestation
should be directed to stream buffer areas, connections between
and additions to
forested areas,
critical habitat areas,
topographically unstable areas, and land use and road buffers.
The use of native plant materials is preferred. [Unless the
Planning Board or Planning Director order otherwise, the
required use of natural regeneration under this Chapter
supercedes any prohibition under Chapter 58.]
*
*
*
(f)
Special provisions for
afforestation.
*
minimum
retention,
reforestation
and
*
*
Forest retention
(2)
Retention, reforestation and afforestation.
should be maximized where possible on each site listed in this
subsection. At a minimum, on-site forest retention, and in some
cases reforestation and afforestation, must be required as
follows:
(A)
In an agricultural and resource area, on-site forest
retention must equal 25% of the net tract area.
(B)
In a planned development or a site development using a
cluster or other optional method of development in a one-
family residential zone, on-site forest retention must equal
the applicable conservation threshold in subsection (a).
This requirement also applies to any site seeking a waiver
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or vanance from base zone standards under [Section
59-C-l.393 (b), 59-C-1.395, 59-C-1.532, 59-C-1.621, or
59-C-7.131,] Sections 59.4.4.5.D, 59.4.4.6D, 59-4.4.7.C,
59-4.4.8.C, 59-4.4.8.C, 59-4.4.9.C, 59-4.4.1 O.C, 59-8.3.2,
59-4.9.16.B, and 59-5.2 if as a condition of the waiver or
variance the Planning Board or County Council must find
that the resulting development is environmentally more
desirable.
*
*
*
(h)
Agreements
( 1)
Maintenance agreement.
A forest conservation plan must include
a two-year binding agreement for maintenance of conservation
areas, including the watering (as practical), feeding and replanting
of areas to be afforested or reforested outside of Special Protection
Areas, and five-years for plantings inside of Special Protection
Areas. The [2-year] binding agreement for maintenance starts
upon satisfactory [final] inspection of the plantings [measures]
required under the forest conservation plan. A staged project may
have more than one agreement.
*
*
*
22A-21. Variance.
*
*
*
(c)
Referral to other agencies for non 22A-J2(b)(3) variance requests.
Before the Planning Board considers a variance not related to
22A-12(b)(3), the Planning [Board] Director must send a copy of each
request to the County Arborist[, Planning Director,] and any other
appropriate agency for a written recommendation before the Board.,_ or
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BILL
No. 26-17
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
Approved:
Planning Director,
as appropriate,
acts
on the request.
If a
recommendation on the variance is not submitted to the Planning Board,
or Planning Director, as appropriate, within 30 days after the referral, the
recommendation must be presumed to be favorable.
*
22A-30. County Arborist
*
*
*
*
*
(c)
(4)
except for requests under 22A-12(b )(3 ), review and variance
requests under Article IL
*
*
*
*
*
*
22A-31. Forest Conservation Advisory Committee
(c)
The Executive must designate a staff member from each of the
following departments to serve as an ex office member:
(A)
[Economic Development] Agricultural Services
*
*
*
Roger Berliner, President, County Council
Date
393
394
Approved:
Isiah Leggett, County Executive
Date
395
396
This is a correct copy ofCouncil action.
Linda M. Lauer, Clerk of the Council
Date
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LEGISLATIVE REQUEST REPORT
Bill 26-17
Forest Conservation
-
Amendments
DESCRIPTION:
Bill 26-17 would require certain administrative and minor subdivisions
to comply with the Forest Conservation Law, subject certain
conditional uses to the Forest Conservation Law, require park
development plans to comply with the Forest Conservation Law,
exempt certain modifications to existing residential development
property under certain circumstances, require certain projects
requiring sketch plan approval to submit a forest stand delineation,
modify the process for submitting a forest stand delineation, alter the
maintenance period for forest conservation plans for certain areas, and
remove the requirement that tree variances be referred to the County
Arborist for recommendation.
Current changes to county and state law have made some provisions
of the Forest Conservation Law out of date and in need of updating,
changing, and clarifying.
To update the code to reflect changes to state law and to streamline the
review process, codify practices, and clarify portions of the Forest
Conservation law.
Park and Planning
To be requested.
To be requested.
To be requested.
To be researched.
Amanda Mihill, Legislative Attorney, 240-777-7815
To be researched.
PROBLEM:
GOALSAND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Penalties for violations of Chapter 22A are in Section 22A-16
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MONTGOMERY COUNTY PLANNING BOARD
THE MARYLAND-NATIONAL CAPITAL PARK AND PLANN~ij 1~V~~SI1*f
I= 30
OFFICE OF THE
CHAIR
May 25, 2017
The Honorable Roger Berliner
President, Montgomery County Council
100 Maryland Avenue
Rockville, MD 20850
Dear Mr. Berliner:
On May 4, 2017, the Montgomery County Planning Board recommended 4-0 to transmit an
Expedited Bill to the County Council for changes to Chapter 22A of the County code (Forest Conservation
Law - FCL). The Forest Conservation Law needs to be updated to reflect recent changes to the County's
zoning ordinance and the subdivision of land article of the Montgomery County code, as well as changes
to State code. Other proposed changes will streamline the review process, codify practices, and clarify
portions of the Forest Conservation Law. Some of the proposed changes to the Chapter 22A of the
County code include:
1. Clarifying that Administrative and Minor Subdivisions are subject to the FCL.
2.
3.
4.
5.
Creating a process in which the Planning Director can approve Forest Conservation Plans
associated with Administrative Subdivisions.
Clarifying that Conditional Uses (formerly Special Exceptions) are subject to the FCL.
Requiring Natural Resources Inventory/Forest Stand Delineations be submitted prior to the
submission of a Sketch Plan and approved concurrently with the Sketch Plan.
Creating a 90-day time limit for applicants to resubmit revisions to Natural Resource
Inventories/Forest Stand Delineations or the plan is automatically withdrawn, unless an
extension is requested under extenuating circumstances.
6.
Clarifying that the maintenance period for all forest conservation plantings in Special Protection
Areas is 5 years. The maintenance period outside of Special Protection Areas remains at 2
years.
7.
Remove the requirement that all tree variances be referred to the County Arborist for a
recommendation. Any non-tree related variance will still be referred to the County Arborist for
a recommendation.
8.
Change the modification to an "existing developed property" exemption that allows for certain
residential uses to qualify for an exemption from submitting a forest conservation plan.
At the Planning Board discussion, staff brought up an issue that the Board felt needed to be
addressed. Just prior to the hearing, staff received a request from a property owner that both staff and
the Board felt would be a hardship if an exemption from submitting a forest conservation plan was not
8787
Georgia
Avenue, Silver Spring, Maryland 20910 Phone: 301.495.4605 Fax: 301.495.1320
www.montgomeryplanningboard.org E-Mail: mcp-chair@mncppc-mc.org
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The Honorable Roger Berliner
May 25, 2017
Page 2
granted. Staff requested permission from the Planning Board to revise the "modification to existing
development property" exemption from submitting a forest conservation plan so that certain residential
properties could qualify for an exemption from submitting a forest conservation plan. The example
presented to the Planning Board involved a residential townhouse community built in the 1970s that is
having drainage issues and all methods to alleviate the drainage issues required a sediment control
permit. In this case, the need to obtain a sediment control permit triggers the forest conservation law.
Currently, there are no exemptions from submitting a forest conservation plan for such situations. Staff
requested permission to develop a solution after the Planning Board hearing and the Board granted staff
permission to develop a solution. That language is now incorporated into the proposed amendment.
Enclosed is a complete copy of the proposed amendment that the Planning Board would like to
be introduced as an expedited bill and a copy of the staff report dated April 25, 2017. Members of the
Planning Board and staff ofThe Maryland-National Capital Park
&
Planning Commission are available to
assist the Council in its review of the proposed legislation.
Sincerely,
cc:
Jeff Zyontz
Mark Pfefferle
Enclosures
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MONTGOMERY COUNTY PLANNING DEPARTMENT
THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION
MCPB
Item No. 6
Date: 5-4-17
Forest Conservation Law Amendments - Modifications, Corrections, and Clarifications
f(lf
Mark Pfefferle, Chief, Mark.Pfefferle@montgomeryplanning.org, 301495-4730
Completed:
4-25-17
SUMMARY
Changes to the zoning ordinance and the subdivision of land article of the Montgomery County
code, as well as changes to State code, requires Chapter 22A of the County code (Forest
Conservation Law) to be updated to reflect these changes. As well, staff is taking this
opportunity to request changes that will streamline the review process, codify practices, and
clarify portions of the Forest Conservation Law (FCL). Some of the proposed changes to the
forest conservation law incl(Ide:
1. Clarifying that Administrative and Minor Subdivisions are subject to the FCL.
2. Creating a process in which the Planning Director can approve Forest Conservation Plans
associated with Administrative Subdivisions.
3. Clarifying that Conditional Uses (formerly Special Exceptions) are subject to the FCL.
4. Requiring Natural Resources Inventory/Forest Stand Delineations be submitted and
approved prior to the submission of a Sketch Plan.
5. Creating a 90 day time limit for applicants to resubmit revisions to Natural Resource
Inventories/Forest Stand Delineations or the plan is automatically withdrawn.
6. Clarifying that the maintenance period for all forest conservation plantings in Special
Protection Areas is
5
years. The maintenance period outside of Special Protection
Areas remains at 2 years.
7. Remove the requirement that all tree variances be referred to the County Arborist for a
recommendation. Any non-tree related variance will still be referred to the County
Arborist for a recommendation.
Staff requests the Planning Board to approve transmittal of the proposed changes to Chapter
22A of the County code to the Montgomery County Council President for introductions as an
expedited bill.
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PROPOSED CHANGES
Below is a more detailed discussion of the proposed changes to the FCL by Section:
Section 22A-3. Definitions
Lines 5 through 7
Inclusion of the new definition "Administrative Subdivision" to reflect a
new subdivision type created from the revisions to Chapter 50
{Subdivision of Land Article) of the County code.
Lines 9
Inclusion of the new definition "Conditional Use" to reflect change in the
zoning ordinance when Special Exceptions were replaced with
Conditional Uses.
Lines 11 and 12
Additional language to the existing definition to reflect a change in the
zoning ordinance as "Development Plan" is no longer used in the zoning
ordinance, however, there are still properties that are subject to
Development Plan.
Lines 14 through 17 Deletion of "-1" from the definition of "Lot" to reflect a change that
occurred to Chapter 50 of the County code.
Lines 19 through 21 Change to the definition "Mandatory Referral" to include the correct
citation to the Annotated Code of Maryland Code.
Lines 23 and 24
Inclusion of the new definition "Minor Subdivision" to include a
subdivision type that is currently missing from the FCL.
Lines 27 through29 Change to the definition "Municipal Corporation" to include the correct
citation to the Annotated Code of Maryland.
Lines 32 and 33
Deletion of the definition "Nontidal wetland". A new "Wetland"
definition is proposed later in FCL amendment.
Lines 36 and 37
Inclusion of the definition "Park Development Plan" to include a
development application type that is missing from the FCL, but used in
the Forest Conservation Regulation.
Lines 42 through 45 Additional language to the existing definition to reflect a change in the
zoning ordinance as "Plan Unit Development" is no longer used in the
zoning ordinance, however, there are still properties that are subject to
this plan type.
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Lines 48 through 50 Addition of ".4" to the definition "Preliminary Plan of Subdivision" to
reflect the correct reference as a result of changes to Chapter 50 of the
County code.
Lines
53
and
54
Additional language to the existing definition to reflect a change in the
zoning ordinance as "Project Plan" is no longer used in the zoning
ordinance, however, there are still properties that are subject to this plan
type.
Lines
58
through
61
Change to the definition "Public Utility" to include the exact language
used by the State in the Forest Conservation Model Ordinance.
Lines
64
through
66
Additional language to the "Site Plan" definition to reflect the changes
that occurred with changes to zoning code.
Line 68
Inclusion of the new definition "Sketch Plan" that was not previously
included in the FCL.
Lines
70
and
71
Additional language to the existing definition to reflect a change in the
zoning ordinance as "Special Exception" is no longer used in the zoning
ordinance, however, there are still properties that are subject to this plan
type.
Line 73
Inclusion of the new definition "Subdivision" that was not previously
included in the FCL but now encompasses "Preliminary Plan of
Subdivisions", "Administrative Subdivisions", and "Minor Subdivisions".
Lines 74 through 78 Revision to the existing definition "Watershed" to reflect current practice
and requirements that watersheds be tied to the Municipal Separate
Storm Sewer System Permit and no longer the Countywide Stream
Protection Strategy.
Lines 80 through 83 Inclusion of the new definition "Wetland" to replace the "non-tidal
wetland" definition that was previously included in the FCL. The new
definition is identical to the one used in the
Environmental Guidelines:
Guidelines for Environmental Management of Development in
Montgomery County,
which was published in January 2000.
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Section 22A-4. Applicability
lines
89
through
91
Addition of "Sketch Plan", "Administrative Subdivision", and "Minor
Subdivision" to the list of plan application types that are subject to the
FCL.
lines 93 and 94
Addition of "Conditional Use" as a plan application type this is subject
to the FCL.
Addition of "Park Development Plan" as a development application
type subject to the FCL. The Forest Conservation Regulation already
identifies park development plans as requiring a forest conservation
finding but by putting it into the law the approving authority is clarified.
lines 97 and
98
Section 22A-5. Exemptions
lines
103
through
106
Clarifies the reference for an agricultural exemption from submitting a
Forest Conservation Plan (FCP). Changes to Chapter
SO
of the code
required the reference change from Chapter
50-9
to
50-3
and the
reference to Chapter
19
was incorrect and is now being corrected.
Lines
109
through
126
Changes to three separate exemptions from submitting a FCP with
correct reference to the Annotated code of Maryland.
Lines
129
through137 Inclusion of "Conditional Use" in the exemption from submitting a FCP
that'is specific to "Special Exceptions".
Line 145
Inclusion of the word "forest" to clarify that the cutting, cutting, or
grading is limited forest and does not include grading of unforested
lands.
Lines 147 and 148
Inclusion of the phrase "or amendment to a preliminary plan" to clarify
that the modification to an existing property is also applicable to
Preliminary Plan amendments.
Section 22A-9. County Highway Projects
Lines 157 and 158
Replacement of the words "cutting or clearing" with "removal, land
disturbance" to clarify in order to minimize impacts to trees that it is
not just minimization of forest removal or cutting but also the
disturbance of land which causes forest removal, particularly when land
disturbance is next tree trunk.
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Line 160
Inclusion of the phrase "land disturbance to avoid" to reaffirm that
disturbance of land is the primary cursor for cutting or clearing of
forests. In some instances, by minimizing land disturbance through the
use of retaining walls or different stormwater management practices
the area of forest to removed can be reduced ..
Section 22A-ll. Application, review and approval procedures
Lines 169 and 170
The inclusion of "Sketch Plan", "Conditional Use", and "Park
Development Plan" clarifies that these plan types are subject to Article
II of the FCL. In this section "preliminary plan of subdivision" is
replaced with "subdivision plan". Using the phrase "subdivision plans"
captures all three plan types and "subdivision plans" are now defined in
section 22A-3 of the proposed revisions to the FCL.
Lines 183 through 186 Staff must review all Natural Resource Inventories/Forest Stand
Delineations (NRI/FSDs) within 30 calendar days, otherwise the plan is
automatically deemed approved. Applicants do not have a timeframe
to respond to staff's comments. The amendment proposes to create a
90 day regulatory clock for applicants to respond to staff comments
otherwise the application is automatically withdrawn. In the last "plan
status" update there were 30 NRI/FSDs in various stages of review.
Four of those plans were under review by staff and comments were
sent to the applicants for the remaining 24 plans. Twelve of 24 plans
have been outstanding for more than 365 days with an average of 784
days. Eight of the 24 plans have been stopped for more than 90 days
with an average of 197 days. Finally six of the plans have been stopped
for less than 90 days. The existing FCL does not have a process to
withdraw applications due to inactivity. In order to be consistent with
the subdivision of land article in the Montgomery Code and the Zoning
Ordinance staff believes a deadline is necessary to withdraw
applications that have prolonged inactivity.
Lines 196 through 199 In the current FCL the applicant submits a Preliminary FCP with the first
development application such as a Preliminary Plan and a final with the
Site Plan. If the development application only requires one approval,
such as a Preliminary Plan the applicant would submit the Preiiminary
Forest Conservation with the Preliminary Plan and obtain approval of
the Final FCP before approval of the Record Plat or issuance of a
Secfment Control Permit. In order to streamline the review process
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staff would like applicants to submit both a Preliminary FCP and a Final
FCP with any development_ applicant that only requires approval of one
development application. This ensures a single reviewer for both FCPs
and allows for both plans to be certified at the same time. This
requirement would require information be submitted sooner. For the
most part the difference is that applicants will need to identify the trees
to be planted, if planting is required, and specific tree protection
measures to protect on and off-site trees by the time the first
development plan is approved. In some plan types, such as those
associated with a sediment control application, the applicant is already
submitting a single FCP that satisfies the needs of both the preliminary
FCP and a final FCP.
lines 201 through 217 Inclusion of the phrase ", or Conditional Use" in this section to clearly
identify that a Conditional Use application has the same requirements
and approval process as "Special Exception" plans.
Lines 219 through 228 Inclusion of the phrase", or Park Development Plan" in this section to
identify that a Park Development Plan has the same requirements and
approval process as a Mandatory Referral.
Lines 232 through 241 This is a new subsection which will require properties subject to a
Sketch Plan to obtain approval of a NRI/FSD prior to submitting the
Sketch Plan. Staff feels this is a necessary and important requirement
particularly since the sketch plan deals with density. The NRI/FSD
documents and identifies the environmental constraints on a property
and those areas, such as stream buffers, flood plains and wetlands
which must be avoided. Approval of the NRI/FSD is necessary for it
means that both the applicant and the Planning Department agree to
the location of the onsite environmentally sensitive features. This new
section does not require an applicant to obtain approval of Preliminary
FCP at time of Sketch Plan. That will remain as a supporting document
to the Preliminary Plan of Subdivision.
lines 244 through 261 This new subsection identifies the procedure for any development
application that is subject to an Administrative Subdivision. Under the
current FCL Administrative Subdivisions are not identified and therefore
the FCPs ·associated with this plan type are being approved by the
Planning Board. This new section allows the Planning Director to
approval FCPs associated_ with an Administrative subdivision, however,
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if the Planning Director chooses not to review the administrative
subdivision the new subsection identifies that the Planning Board must
review and act on the FCP.
Section 22A-12. Retention, afforestation, and reforestation requirements
Lines 270 through 272 Staff recommends deletion any referral to natural regeneration of
forest. Natural regeneration has not worked well in Montgomery
County because the naturally regenerated native trees are either being
out competed by non-native and invasive species or are being browsed
by deer. In addition, staff has not permitted an applicant to meet their
forest conservation planting requirements through natural
regeneration for more than 15 years because it has not worked.
Lines 288 through 290 Revisions to the zoning ordinance changed references to certain
sections in the FCL that need updating. The purpose of the addition
language is to reflect the current zoning ordinance for those parts that
still exist in the zoning ordinance.
Lines 299 arid 302
Clarifies in the law that a maintenance and management for all planted
forest in Special Protection Areas is 5 years. The FCL currently identifies
a 2-year maintenance period and does distinguish for plantings within a
Special Protection Area and those outside of the special protection
area. The 5 year maintenance period is consistent with maintenance
and management found on page 37 of the
Environmental Guidelines:
Guidelines for Environmental Management of Development in
Montgomery County,
which was published in January 2000. In addition,
the standard forest conservation maintenance and management
agreement template requires that the applicant maintain the forest
planting for 5 years. This change is to codify current practices and the
Environmental Guidelines.
Section 22A-21. Variance
Lines 305 through 311 This section requires all variances to be forwarded to other agencies,
including the County Arborist for review and recommendation. In
2009, the State's enablin_g legislation changed which required a
variance to certain trees before they could be impacted by a
development application. The County Arborist is part of the
Department of Environmental Protection and the state enabling
legislation does not identify a County Arborist position. So the referral
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of variances to the County Arborist is unique to Montgomery County.
Since 2009 the number of referrals to the County Arborist has gone
from, on average
O
per year to approximately 30 per year. The
County's Streamlining Task Force members identified the exclusion of
the County Arborist to review tree variances as a positive effort.
Unfortunately, the County never produced a final report with
recommendations to streamline the development review process. The
language proposed by this amendment would remove the need for any
variance associated with trees to be forwarded to the County Arborist.
However, it does retain the need for other non-tree variances to be
forwarded to the County Arborist for a recommendation. Staff has
contacted the Montgomery County Department of Environmental
Protection and agrees with removal of need to refer "tree variances" to
the County Arborist.
Section 22A-30. County Arborist
Line 315
The proposed changes on this section eliminates, as a duty of the
County Arborist, the need to review "tree variances".
Section 22A-31. Forest Conservation Advisory Committee
Line 322
The proposed amendment modifies the composition of one member of
the Forest Conservation Advisory Committee from "Economic
Development" to "Agricultural Services". This change was precipitated
by the discontinuation of Economic Development Department. The
participant on the Committee has, for the most part, been a
representative of Agricultural Services, just now that section is an
Executive Office versus being part of the Economic Development
Department.
CONCLUSION
Staff recommends the Planning Board approval transmittal of the proposed changes to
Chapter 22A of the County code to the President of the Montgomery County Council for
introduction as an expedited bill. Staff requests the bill be expedited for it will streamline the
development review process and allow for the Planning Director to approval FCPs associated
with Administrative Subdivisions.
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ROCKVILLE, MARYLAND
MEM ORAN DUM
August 17, 2017
TO:
FROM:
Roger Berliner, President, County Council
Jennifer
A.
Hughes, Director, Office of Management and Budget
---G-\ilAlexandre
A.
Espinosa, Dirf)ctor, Departm ent of Finance
§
Jr-l
~JM\-
'\'-'
I/
~b
SUBJECT:
FEIS for BILL 26-17, Forest Conservation - Amendments (
Please find attached the fiscal and economic impact statements for the above-
referenced legislation.
JAH:fz
cc: Bonr:.ie Kirkland, Assistant Chief Administrative Officer
Lisa Austin, Offices of the County Executive
Joy Nurmi, Special Assistant to the County Executive
Patrick Lacefield, Director, Public lnfoqna tion Office
·
David Platt, Department of Finance
Dennis Hetman, Department of Finance
. Jennifer Nordin, Office of Manage ment and
Budget
Felicia
Zhang,
Office of Management and Budget
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Fiscal Impact Statement
BILL
26-17,
Forest Conservation -Amendm ents
1. Bill Summary
Bill 26-17
amends Chapter
22A -
Forest Conservation Law
to
require certain
administrative and minor subdivisions, conditional uses, and park development plans to
comply with Forest Conservation laws; exempts certain modifications
to
existing
residential development properties under certain circumstances; requires certain projects
requiring sketch plan approval to submit a forest stand delineation; modifies the process
for submitting a forest stand delineation; alters the maintenance period for forest
conservation plans for certain areas; and removes the requirement that tree variances be
referred to the County Arborist for recommendation.
These amendments update the Forest Conservation Law following changes in the County
and State code and clarify provisions of the Forest Conservation Law.
2.
An
estimate of changes in County revenues and expenditures regardless of whether the
revenues or expenditures are assumed in the recommen ded or approved budget. Includes
source of information, assumptions
1
and methodologies used.
No change to revenues or expenditures.
3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
No change to revenues or expenditures.
4.
An
actuarial analysis through the entire amortization period for each bill/regulation that
would affect retiree pension or group insurance costs.
Not applicable.
5. Later actions that may affect future revenue and expenditures if the bill/regulation
authorizes future spending.
Not applicable.
6.
An
estimate of the staff time needed to implement the bill/regulation.
No staff time is needed.
7.
An
explanation of how the addition of new staff responsibilities would affect other duties.
Not applicable.
8.
An
estimate of costs when an additional appropriation is needed.
Not applicable.
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9. A description of any variable that could affect revenue and cost estimates.
Not applicable.
10. Ranges ofrevenue
or
expenditures that are uncertain or difficult to project.
Not applicable.
11. If a Bill is likely to have no fiscal impact, why that is the case.
These amendments update the Forest Conservation Law following changes
in
the County
and State code and clarify provisions of the Forest Conservation Law.
12.
Other fiscal impacts or comments.
Not applicable.
13.
The following contributed to and concurred with this analysis,
John Kroll, MNCPPC
Rick Brush, DPS
Stan Edwards, DEP
Greg Ossont, DGS
Jennifer Nordin,
0MB
Je7erA.Hu ghes, Director
Office of Management and Budget
Date
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Economic Impact Statement
Bill 26-17, Forest Conservation - Amendments
Background:
Bill 26-17 would update the County Code to reflect changes to state law and to
streamline the review process, codify practices, and clarify portions of the Forest
Conservation Law. Specifically, Bill 26-17 would:
require certain administrative and minor subdivisions to comply with the Forest
Conservation Law;
subject certain conditional uses to the Forest Conservation Law;
require park development plans to comply with the Forest Conservation Law;
exempt cer):ain modifications to existing residential development property under
certain circumstances;
require certain projects requiring sketch plan approval to submit a forest stand
delineation;
modify the process for submitting a forest stand delineation;
alter the maintenance period for forest conservation plans for certain areas;
\
remove the requirement that tree variances be referred to the County Arborist for
recommendation; and
generally amend laws related to forest conservation.
1.
The sources of information, assumptions, and methodologies used.
The source of information is the Montgomery County Planning Department
(Planning), the Maryland-National Capital Park and Planning Commission. The
Department of Finance (Finance) made no assumptions or developed methodologies
in
the preparation of the economic impact statement. According to Planning, "the
changes to the forest conservation law do not increase the size of the regulated
communit y nor make the requirements more difficult. The purpose of the amendment
is to codify references that have already occurred to the zoning ordinance and the
subdivision of the land article of the County code."
2. A description of any variable that could affect the economic impact estimates.
Not applicable.
3. The Bill's positive or negative effect, if any on employment, spending, savings,
investment, incomes, and property values in the County.
Bill 26-17 would have no economic impact on employment, spending, savings,
investment, incomes, and property values in the County.
Page 1 of2
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Economic Impact Statement
Bill 26-17, Forest Conservation
-
Amendments
4.
If
a Bill is likely to have no economic impact, why is that the case?
Bill 26-17 would have no economic impact because it does not have an impact on
employment, spending, savings, investment, incomes or property values. As stated in
paragraph 1, "the purpose of the amendment is to codify references that have already
occurred to the zoning ordinance and the subdivision of the land article of the County
code."
5. The following contributed to or concurred with this analysis:
David Platt,
Finance.
Alexandre A. Espinosa, Drrector
Department of Finance
Page 2 of2