ARTICLE VA

~~Forest and Tree Conservation [Added by Bill No. 91-31]~~

REVIEW OF DEFINITIONS NOT INCLUDED IN THE P&Z WORKGROUP UPDATE AND THERFORE ARE SHOWN AS STRIKEOUT FOR COMPARISON PURPOSES ONLY.

~~§ 267-30.1. Definitions.~~

~~In this Article the following terms have the meanings indicated.~~

AFFORESTATION -- Means the creation, in an area that is not presently in forest cover, of a biological community dominated by trees and other woody plants at a density of at least 100 trees per acre with at least 50% of the trees having the capability of growing to a DBH of 2 inches or more within 7 years.

~~CRITICAL HABITAT AREA -- Means a habitat that:~~

~~A. Is occupied by an endangered species, as determined or listed under the Natural Resources Article, § 4-2A-04 or 1O-2A-04 of the Annotated Code of Maryland.~~

~~B .Is likely to contribute to the long-term survival of the species;~~

~~C .Is likely to be occupied by the species for the foreseeable future; and~~

~~D. Constitutes habitat deemed critical under the Natural Resources Article, § 10-2A-06 of the Annotated Code of Maryland.~~

~~FOREST:~~

~~A. "Forest" means a biological community dominated by trees and other woody plants covering a land area of 10,000 or more square feet.~~

~~B. "Forest" includes:~~

~~(1) An area having at least 100 trees per acre, if at least 50% of the trees have a DBH of2 inches or more; and~~

~~(2) Forest that has been cut but not cleared.~~

~~C. "Forest" does not include orchards.~~

~~FOREST CONSERVATION -- Means the retention of existing forest or the creation of new forest.~~

~~FOREST COVER -- Means the area of a parcel meeting the definition of forest.~~

~~HIGH-DENSITY RESIDENTIAL USE~~ -- Means land zoned for densities of more than 1 dwelling unit per acre, including both existing and planned development and their associated infrastructure, such as roads, utilities, and water and sewer service.

~~LOW-DENSITY RESIDENTIAL USE -- Means undeveloped land zoned for densities of less than or equal to 1 dwelling unit per 5 acres.~~

MEDIUM-DENSITY RESIDENTIAL USE -- Means land zoned for a density of more than 1 dwelling unit per 5 acres and less than or equal to 1 dwelling unit per acre, including both existing and planned development and their associated infrastructure, such as roads, utilities, and water and sewer service.

REFORESTATION -- Means the creation of a biological community dominated by trees and other woody plants at a density of at least 100 trees per acre with at least 50% of the trees having the capability of growing to a DBH of 2 inches or more within 7 years.

ARTICLE VI Forest and Tree Conservation

§ 267~~-30.2.~~ 34 Applicability.

A Except as provided in Subsection B of this section, this Article applies to any person, including the county, who applies after January 1, 1992, for subdivision approval, a grading permit, or a building permit for an area of land of 40,000 [0.92 acres] square feet or more.

B. This Article does not apply to:

(1) Cutting or clearing conducted in accordance with a forest harvest permit issued under Chapter 214 of this Code, if the cutting or clearing:

(a) Is completed before July 1, 1991; or

(b) Is completed on or after July 1, 1991, and the property on which the cutting or clearing is conducted is not the subject of an application for a grading permit within 5 years after the cutting or clearing;

(2) Cutting or clearing in the Chesapeake Bay Critical Area Overlay District established under § 267-~~41.1~~ 63 of this chapter;

(3) Cutting or clearing to further agriculture, if the land on which the cutting or clearing is conducted is not the site of development within 5 years after the clearing or cutting;

(4) Forest management activities conducted in accordance with a federal, state, or local forestry or woodland incentives program;

(5) If conducted so as to minimize the loss of forest, cutting or clearing of:

(a) Public utility rights-of-way; and

(b) Land for an electrical generating station approved by the Public Service Commission under Article 78, §§ 54A, 54B, or 541 of the Annotated Code of Maryland;

(6) Routine maintenance of public utility rights-of-way;

(7) ~~[Amended by Bill No. 93-11]~~ Any development conducted on a single residential parcel described in the land records of January 1, 1992, of any size, if the development:

(a) Does not result in the cutting, clearing, or grading of more than 40,000 square feet of forest; and

(b) Does not result in the cutting, clearing, or grading of any forest that is subject to a previous forest conservation plan prepared under this Article; and

(8) Any strip or deep mining of coal regulated under the Natural Resources Article, Title 7 of the Annotated Code of Maryland, and any noncoal surface mining regulated under the Natural Resources Article, Title 7 of the Annotated Code of Maryland. [Amended by Bill No. 93-11]

C.(7)( c) If land on which cutting or clearing has been conducted in accordance with an exemption under Subsections B(I)(b) or B(3) of this section is developed:

(1) Within five (5) years after the cutting or clearing, the development is subject to this Article and the required forest conservation shall be calculated based on the acreage of forest that existed before the cutting or clearing; and

( 2) More than five (5) years after the cutting or clearing, the development is subject to this Article and the required forest conservation shall be calculated based on the acreage of forest that exists after the cutting or clearing.

§ 267-~~30.3~~. 35 General requirements.

A. A person who applies after January 1, 1992, for subdivision approval, a grading permit, or a building permit for an area of land of forty thousand (40,000) square feet or more:

(1) Shall submit to the Department in accordance with the Forest Cover Conservation and Replacement Manual:

(a) A forest stand delineation for the lot or parcel on which the development is located; and

(b) A forest conservation plan for the lot or parcel on which the development is located;

(2) Shall not, unless granted an exemption by the Department, perform any construction activity in the dripline of a tree that is to be retained; and

(3) Shall use methods approved by the Department to protect retained trees during construction.

B. Notwithstanding any other provision of this Article, the Department of Public Works shall plant at least one (1) tree for every two (2) trees of a DBH of eight (8) inches or more that it cuts or clears as part of a project to widen a county road.

C. When planting trees in accordance with Subsection B of this section, the Department of Public Works shall meet the following criteria:

(1) The trees planted shall:

(a) Have at maturity approximately the same area of canopy as the trees that were cut or cleared; and

(b) Have a caliper of at least one and one-half (1~) inches;

(2) The trees shall be planted:

(a) If feasible, on the site or in the right-of-way used for the project; or

(b) If the owner of the abutting property requests, on property that abuts the site or the right-of-way used for the project;

(3) The trees shall be of the same species as those cut or cleared if:

(a) The owner of the abutting property so requests; and

(b) They are planted on abutting property;

(4) If the owner of the abutting property requests, the Department of Public Works shall pay the owner a fee in an amount equal to the cost of the trees that would have been planted on the abutting property under this section, and payment of the fee relieves the Department of Public Works of the duty to plant the trees.

§ 267-~~30.4~~. 36 Forest stand delineation.

A. A forest stand delineation shall be submitted before a preliminary subdivision plan, a grading permit application, or a building permit application is submitted for the lot or parcel being developed.

B. The delineation shall be prepared by a licensed forester, licensed landscape architect, or other professional approved by the Department.

C. The delineation shall include:

(1) A topographic map delineating intermittent and perennial streams, and steep slopes over twenty-five percent (25%);

(2) A soils map delineating soils with structural limitations, hydric soils, and soils with a soil K Value greater than thirty-five hundredths (0.35) on slopes of fifteen percent (15%) or more;

(3) Forest stand maps indicating species, location, and size of trees, and showing dominant and codominant forest types; and

(4) Limit of non-tidal wetlands and required buffer;

(5) Limit of 100 year floodplain; and

(6) Any other information required by the Department

D. Action by Department.

(1) Within thirty (30) calendar days after receipt of the forest stand delineation, the Department shall notify the applicant whether the forest stand delineation is complete and correct.

(2) If the Department fails to notify the applicant within thirty (30) calendar days the delineation shall be treated as complete and correct.

(3) The Department may require further information or extend the deadline for an additional fifteen (15) calendar days under extenuating circumstances.

§ 267-~~30.5~~. 37 Forest conservation plan.

A. A forest conservation plan shall be prepared by a licensed forester, a licensed landscape architect, or other professional approved by the Department

B. A forest conservation plan shall:

(1) Be submitted with the first of the following submitted for the site:

(a) A preliminary subdivision plan;

(b) An application for a grading pennit; or

(2) Include a map of the site drawn at the same scale as the grading or subdivision plan;

(3) Include a table that lists, in square feet;

(a) The net tract area;

(b) The total area of forest conservation required; and

(c) The total area of forest conservation that the applicant proposes to provide, including both on-site and off-site areas;

(4) Include a clear graphic indication of the forest conservation provided on the site, showing areas where retention of existing forest or afforestation is planned;

(5) Include a construction timetable indicating the phasing of the project and showing the sequence for tree conservation procedures;

(6) Include an afforestation and reforestation plan with a proposed schedule and description of needed site and soil preparation, species, size, and spacing to be utilized;

(7) Show locations and types of protective devices to be used during construction activities to protect trees and areas of forest designated for conservation;

(8) Show the planned limits of disturbance;

(9) Show planned stockpile areas;

(10) Incorporate a commitment to complete all required afforestation and reforestation in accordance with the schedule established by the Department in the approved forest conservation plan;

(11) Incorporate a binding 2-year management agreement that details how the areas designated for afforestation or reforestation will be maintained to insure protection or satisfactory establishment, including:

(a) Watering; and

(b) Reinforcement planting provisions if survival rates fall below required standards;

(12) Include any plan for individual tree plantings proposed under § 267-~~30.10~~ 43 of this Article;

(13) Incorporate a binding protective agreement that:

(a) Provides protection for areas of forest conservation, including areas of afforestation, reforestation, retention, and individual tree plantings;

(b) Limits uses in areas of forest conservation to those uses that are consistent with forest conservation, including recreational activities and any forest management practice that is used to preserve forest; and

(14) Any other information the Department requires.

C. Action by Department.

(1) Within 45 calendar days after receipt of the forest conservation plan, the Department shall notify the applicant whether the forest conservation plan is complete and approved.

(2) If the Department fails to notify the applicant within 45 calendar days, the plan shall be treated as complete and approved.

(3) The Department may require further information or extend the deadline for an addition 15 calendar days under extenuating circumstances.

(4) At the request of the applicant, the Department may extend the deadline under extenuating circumstances.

D. The Department's review of a forest conservation plan shall be concurrent with the review of the subdivision plan, grading permit application, or building permit application associated with the project.

E. ~~[Amended by Bill No. 93-11]~~ The Department may revoke an approved forest conservation plan if it finds that:

(1) Any provision of the plan has been violated;

(2) Approval of the plan was obtained through fraud, misrepresentation, a false or misleading statement, or omission of a relevant or material fact; or

(3) Changes in the development or in the condition of the site necessitate preparation of a new or amended plan.

F. In revoking an approved forest conservation plan under Subsection E of this section, the Department shall follow the procedure for revocation of zoning certificates that is set forth in § 267-8E F (Zoning Certificates) of this chapter~~. [Amended by Bill No. 93-11]~~

G. [Amended by Bill No. 93-11] If a forest conservation plan is required by this Article, a person may not cut, clear, or grade on the development site:

(1) Until the Department has approved the plan; or

(2) In violation of the approved plan.

§ 267-~~30.5.1.~~ 38 Abbreviated process. ~~[Added by Bill No. 93-11]~~

A. In this section, "parcel" means a parcel described in the land records as of the effective date of County Council Bill No. 93-11.

B. This section applies only to the first 5 lots created from a parcel.

C. A person is not required to submit a forest stand delineation or a forest conservation plan for a subdivision of 5 or fewer residential lots if:

(1) Development will not result in the cutting, clearing, or grading of:

(a) A cumulative total of more than 40,000 square feet of forest on the parcel; and

(b) Forest that is subject to an approved forest conservation plan;

(2) The person files with the preliminary subdivision plan a declaration of intent stating that development will be conducted in accordance with Paragraph (1) of this subsection; and

(3) The forest to be retained on the parcel is designated as such on the preliminary subdivision plan and the final subdivision plat.

D. A person may file an abbreviated forest stand delineation for a subdivision of 5 or fewer residential lots if:

(1) Development will result in the cutting, clearing, or grading of a cumulative total of more than 40,000 square feet of forest on the parcel;

(2) Development will not result in the cutting, clearing, or grading of forest that is subject to an approved forest conservation plan;

(3) The abbreviated forest stand delineation is prepared in accordance with the standards for such delineations in the Department's Forest Conservation Manual; and

(4) A forest conservation plan is also submitted for the site.

E. A person who tiles an abbreviated forest stand delineation may file the delineation and the forest conservation plan for the site at the same time.

F. Within 60 calendar days after receipt of the abbreviated forest stand delineation and the forest conservation plan, the Department shall notify the applicant as to whether the delineation and plan are complete and approved.

G .If the abbreviated forest stand delineation and the forest conservation plan are submitted separately, the period of 60 calendar days established by Subsection F of this section starts from the later date of submission.

H .If the Department fails to notify the applicant within 60 calendar days, the delineation and the plan shall be treated as complete and approved.

I. The department may require further information or extend the deadline for an additional 15 calendar days under extenuating circumstances.

§ 267-~~30.6~~.39 Retention and afforestation.

A. A person who applies after January 1, 1992, for subdivision approval, a grading permit, or a building permit for an area of land of 40,000 square feet or more:

(1) Shall conduct afforestation on the lot or parcel in accordance with the following:

(a) For the following land use categories, a site with less than twenty percent (20%) of its net tract area in forest cover shall be afforested up to at least twenty percent (20%) of the net tract area:

[1] Natural resources;

[2} Medium-density residential uses; and

[3] Low-density residential uses; and

(b) For the following land use categories, a site with less than fifteen percent (15%) of its net tract area in forest cover shall be afforested up to at least fifteen percent (15%) of the net tract area:

[1] Business uses;

[2] Industrial uses;

[3] Institutional uses; and

[4] High-density residential uses; and

(2) Shall retain at least the following minimum percentages of the existing forest on the lot or parcel:

Type of Use Minimun Percental!e of Forest to be Retained

Natural resources and low-density residential uses 50%

Mediwn-density residential uses 40%

Institutional uses 30%

High-density residential uses 30%

Business and industrial uses 15%

B. Subsection A(2) of this section does not apply to the development of a water line, a sewer line, or a sanitary landfill.

C. The following trees, shrubs, plants, and specific areas shall be considered priority for retention and protection and shall be left in an undisturbed condition unless the applicant has demonstrated, to the satisfaction of the Department, that reasonable efforts have been made to protect them and the plan cannot be reasonably altered:

(1) Trees, shrubs, and plants located in sensitive areas, including the Floodplain District established under Chapter 131 of this Code, intermittent and perennial streams and their buffers, steep slopes, and critical habitat areas;

(2) Contiguous forest that connects the largest undeveloped or most vegetated tracts of land within and adjacent to the site;

(3) Trees, shrubs, or plants identified on the list of rare, threatened, and endangered species of the United States Fish and Wildlife Service or the State Department of Natural Resources;

(4) Trees that:

(a) Are part of a historic site;

(b) Are associated with a historic structure; or

(5) Trees having a DBH of:

(a) Twenty-four (24) inches or more; or

(b) Seventy-five percent (75%) of the DBH of the current state champion tree of that species.

D. Subsection C of this section does not require retention of:

(1) A tree that is dead or diseased;

(2) A tree that has been substantially damaged through natural causes and is not expected to survive; or

( 3) Unless it is located in an area of forest to be retained, a non-champion tree with a DBH of thirty (30) inches or more.

E. No forest retentiona area easements shall be permitted on residential lots with a net tract of less than 20,000 square feet. No more than 25% of any lot with a net lot area between 20,000 square feet and 60,000 dquare feet shall be encumbered by a forest retention easement.

§ 267-~~30.7.~~ 40 Reforestation.

A. There is a forest conservation threshold established for each land use category, as provided in Subsection B of this section. The forest conservation threshold means the percentage of the net tract area at which the reforestation requirement changes from a ratio of one-fourth ('i4) acre planted for every acre removed to a ratio of two (2) acres planted for every acre removed.

B. After every reasonable effort to minimize the cutting or clearing of trees and other woody plants is exhausted in the development of a subdivision plan and grading and sediment control activities and implementation of the forest conservation plan, the forest conservation plan shall provide for reforestation, or payment into the forest conservation account, according to the formula set forth in Subsection C of this section and consistent with the following forest conservation threshold for the applicable land use category:

Category of Use Threshold Percentage

Natural resources uses 50%

Low-density and medium-density residential uses 40%

Institutional uses 30%

High-density residential uses 30%

Business and industrial uses 30%

C. Subject to Subsection D of this section, for all existing forest cover measured to the nearest one-tenth acre cleared on the net tract area above the threshold established by this section, the area of forest removed shall be reforested at a ratio of 'i4 acre planted for every acre removed. [Amended by Bill No. 93-11] ,

D. Each acre of forest retained on the net tract area above the threshold shall be credited against the total number of acres required to be reforested under Subsection C of this section. [Amended by Bill No. 93-11]

E. For all existing forest cover measured to the nearest one-tenth acre cleared on the net tract area below the threshold established by this section, the area of forest removed shall be reforested at a ratio of2 acres planted for every acre removed. ~~[Added by Bill No. 93-11]~~

F. No afforestation or reforestation shall be permitted on any residential lot with a net lot area of less than 20,000 square feet. No more than 25% of any lot with a net tract area between 20,000 square feet and 60,000 square feet shall be permitted for reforestation or afforestation planting.

§ 267-~~30.8~~. 41 Priorities and time requirements for afforestation and reforestation.

A. The required sequence for forest conservation, after techniques for retaining existing forest on the site have been exhausted, is as follows:

1) Selective clearing and supplemental planting on site;

2) On-site afforestation, if economically feasible, using transplanted or nursery stock that is greater than one and one-half (1~) inches DBH;

3) On-site afforestation using whip and seedling stock with protective tree tubes (shelters):

4) On-site individual tree plantings conducted in accordance with § 267-~~30.10~~ 43 (Individual Tree Planting), of this Article;

5) Landscaping of areas under a landscaping plan that establishes a forest that is at least thirty-five (35) feet wide and covers at least two thousand five hundred (2,500) square feet of area;

(6) Off-site afforestation using transplanted or nursery stock that is greater than one and one-half (1~) inches DBH;

(7) Off-site afforestation using whip and seedling stock with protective tree tubes (shelters):

(8) Natural regeneration on-site; and

(9) Natural regeneration off-site.

B. A sequence other than the one described in Subsection A of this section may be used for a specific project if necessary to achieve the objectives of the County Land Use Plan or county land use policies or to take advantage of opportunities to consolidate forest conservation efforts.

C. The following are priorities for reestablishment:

(1) Forest buffers adjacent to intermittent and perennial streams, to widths of at least 50 feet;

(2) Forest corridors, connecting existing forests within or'adjacent to the site, to widths of at least 300 feet where possible;

(3) Forest buffers adjacent to critical habitat areas;

~~(4)~~ 5 Plantings to stabilize slopes of 25% or greater and slopes of 15% or greater with a soil K Value greater than 0.35, including the slopes of ravines or other natural depressions;

~~(5) 4~~ Plantings in the Natural Resources District established under § 267-41 62 of this chapter;

(6) Buffers adjacent to areas of differing land use, where appropriate, or adjacent to highways or utility rights-of-way; and

(7) Forested areas adjacent to existing forests so as to increase the overall area of contiguous forest cover, when appropriate.

D. A person required to conduct aforestation or reforestation under this Article shall accomplish the afforestation or reforestation in accordance with the schedule established by the Department in the approved forest conservation plan. The Department shall ensure that the schedule is structured to:

(1) Require completion of the afforestation or reforestation within 2 years;

(2) Provide an optimum opportunity for successful afforestation;

(3) Avoid delay to development and construction activities; and

(4) Take into consideration the phasing of the development project.

§ 267-~~30.9~~. 42 Payment in lieu of afforestation and reforestation.

A. If a person required to conduct afforestation or reforestation under this Article demonstrates to the satisfaction of the Department that reforestation or afforestation on-site or off-site cannot be reasonably accomplished, the person shall contribute money at a rate of 40 cents per square foot of the area of required planting to the county.

B. Money contributed in lieu of afforestation or reforestation under this subsection shall be paid within 90 calendar days after issuance of the grading permit or building permit for the development project, whichever occurs first.

~~C. The county shall accomplish the reforestation or afforestation for which the money is deposited within 3 years after receipt of the money.~~

D. Money contributed under this section shall remain in the account for a period of 3 years, and at the end of that time any portion that has not been used to meet the reforestation requirements shall be returned to the person who provided the money.

E. Money contributed under this section:

(1) May be used only for reforestation and afforestation, including site identification, acquisition, and preparation;

(2) Shall be deposited in a separate forest conservation account; and

(3) Shall not revert to the general fund.

§ 267-~~30.10~~. 43 Individual tree plantings.

A. Individual tree plantings conducted in accordance with § 267-~~30.8A~~ 41 (Priorities and Time Requirements for Afforestation and Reforestation), of this Article shall be credited towards the remaining forest conservation requirement in an amount equal to ~~the square footage of the area of mature canopy of the individual trees planted. [Amended by Bill No. 93-11]~~ 500 square feet for each individual tree planted.

B. To qualify for a credit under this section, the plantings shall:

(1) Be conducted in accordance with a landscaping plan submitted with the forest conservation plan;

(2) Be conducted in areas protected in accordance with § 267-~~30.5B(13)~~ 37 (Forest Conservation Plan), of this Article; and

(3) Include trees of a caliper of at least one and one-half (1-1/2) inches.

C. The landscaping plan shall include:

(1) A list of the proposed tree species to be utilized;

(2) The number of trees to be planted;

(3) A calculation of the square footage ~~of the mature canopy of the trees~~ for all individual trees planted; and

(4) An overlay showing the location of the trees on the preliminary subdivision plan or the concept plan.

D. The location, spacing, and species of trees planted in accordance with this section shall be as approved by the Department in the forest conservation plan, and the Department shall encourage plantings along streets, between buildings, in parking lots, and in other common-area sites where the plantings may provide buffering, energy conservation, and other environmental benefits..

E. Planting under this section shall be conducted in accordance with urban forestry standards recognized by the Forestry Division of the Maryland Department of Natural Resources.

§ 267-~~30.11~~. 44 Required tree species.

A. Tree species used for afforestation and reforestation shall be native to the county and selected from a list of approved species established by the Department.

B. Tree species for individual tree plantings conducted in accordance with § 267-30.10 of this Article shall be selected from a list of approved species established ~~by the Department.~~ In the Forest Cover Conservation and Replacement Manual.

C. The Department may approve a request for permission to use a species that is not on the list of approved species if the request:

(1) Is in writing;

(2) Describes the circumstances that make use of the species appropriate; and

(3 )Is not based solely in economic factors.

D. On or before December 31, 1991, the Department shall issue guidelines establishing a list of tree species to be used for afforestation, reforestation, and individual tree plantings. [Amended by Bill No. 91-72]

§ 267-~~30.12~~. 45 Surety for forest conservation.

A. Before receiving a grading permit or a building permit, a person required to conduct afforestation, reforestation, or individual tree plantings under this Article shall furnish surety in the form of a bond, an irrevocable letter of credit, or other security approved by the Department. The surety shall:

(1) Assure that the afforestation, reforestation, and individual tree plantings are conducted and maintained in accordance with the approved forest conservation plan;

(2) Be in an amount equal to the estimated cost, as determined by the Department, of afforestation, reforestation, and individual tree plantings;

(3) If the development is scheduled to be constructed in phases, cover the portion of the development within the limits of disturbance delineated in the grading permit application; and

(4) Be in a form and of a content approved by the County Attorney.

B. If after 1 growing season the afforestation, reforestation, and'individual tree plantings meet or exceed the standards of the forest cover conservation and replacement manual, twothirds of the amount of any cash bond that has been posted shall be returned. If the surety has been given in the form of a letter of credit, a surety bond, or another form of surety, the county shall notify the appropriate entity that liability has been reduced by two-thirds (2/3).

C. If after two (2) growing seasons the afforestation, reforestation, and individual. tree plantings meet or exceed the standards of the Forest Cover Conservation and Replacement Manual, the remaining amount of the cash bond, letter of credit, surety bond, or other surety shall be returned or released.