Greater Fallston Association, Inc.

(This document was prepared to assist in the review of the Planning and Zoning Update on the topic below.

Interpretation was to the best of our abilities. We welcome comments, corrections and suggestions.)

Planning and Zoning Update: Forest and Tree Conservation

GENERAL COMMENTS:

1. The definition of Critical Area Habitat should be broader

The purpose of this section of the code is to provide a harmonious balance between development by man and critical habitats (i.e. the “developments” of all plants and animal species) acknowledging that forest preservation for its visual or aesthetic value to society plays a secondary role in many decisions. Therefore, the most important question to ask is, “ What are the criteria that the Planning and Zoning use in establishing critical area habits created by forests that are specific to Harford County?” and “What is the threshold that limits destruction of these critical area habitats?”. Section 42A-(04-06) (referring to fish) and 10- 2A-04 (any species of wildlife or plant) of the Annotated Code of Maryland only refer to endangered species. The Annotated Code of Maryland is the only reference used in Planning and Zoning’s definition of critical habitat area.

In that regard, the definition of Critical Habitat Area should state “in accordance with”, e.g.

1. Section 42A-(04-06) and 10- 2A-04 of the Annotated Code of Maryland,

a. Including the State Endangered Species Regulations,

b. The Federal endangered species regulations,

c. Upland habitats as dictated by the Maryland Economic Growth, Resource Protection and Planning Act of 1992, as well,

2. Provisions of the Natural Resource Element Plan of Harford County including,

a. The Chesapeake Bay Critical Habitat area,

b. The provisions of the Deer Creek Scenic River District,

c. Areas identified in the Sensitive Species Project Review Areas,

d. The Forestry Board Advisory Committee,

e. All other elements of the 1998 Harford County Natural Resources element Plan.

Specific References pertaining to the definition of Critical Area Habitat

Sections 267-36-A, 267-37- A. The code should require a licensed forester or landscape architect only to submit a forest delineation/conservation plan. The submission should certify, at the very least, that the forest delineation and conservation plans are in compliance with the above and that the proposal does not jeopardize a critical area habitat. The certification should precede or accompany the delineation plan. Allowing, “other professionals approved by the Department” to submit forest stand delineation plans is unacceptable.

Section 267-39. C This section potentially allows an applicant to destroy rare, threatened and endangered species. The statement “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:” contradicts the premise of the Maryland Annotated Code referenced previously.

2. Sections of the Code are ambiguous

The Department of Planning and Zoning is charged with implementation of the code and not interpretation of the code. While acknowledging the expertise of the members of the Department, any reference to interpretation of the code highlights a need for further clarification. Language such as “as approved by the Department” should be followed by the statement, “in accordance with”.

267-35-A.(2) “unless granted an exemption by the Department”

P&Z does not grant exemptions.

267-35-A.(3) “Shall use methods approved by the Department”

The methods should be clearly defined.

267-37-E. “may revoke”

Change to “shall revoke”.

267-40-B. “after every reasonable effort to minimize cutting or clearing..is exhausted.” Change to e.g., “ If the maximum forest retention is exceeded, the plan shall provide for reforestation.”.

267-41-C.(2) “where possible”

delete

267-42-A. “to the satisfaction of the Department….cannot be reasonably accomplished” Change to, “if the set criteria are not met”.

267-44-C. “The Department may approve a request for permission….not based soley on cost”.

Either define the acceptable species or eliminate. Suppose 80% is based on cost and 20% based on other criteria.

267-36-D.2, 267-37-C.2, 267-38-H. Failure to notify the applicant of an approval after a set time period implies automatic approval could potentially lead to an administrative oversight in favor of the applicant. The Department shall notify the applicant within the specified time period if a plan is approved or disapproved.

3. Potential Loopholes

Loophole 1 (Can this scenario happen?)

An agricultural property of 100 acres with 25 acres of forest along a roadway has 24 acres cleared in July 2000 (in compliance with and under permit of Harford County Code 214 –Sediment Control and Storm water Management) to further agricultural land. Only 40,000 square feet of forest remain along the roadway. The 25 acres of land is sold and rezoned to residential in 2006. The remaining forest of just under 40,000 square feet is totally cleared in January 2007. A subdivision, grading permit and building permit are applied for in August 2007 for low density residential use and no forest stand delineation or forest conservation plan is submitted as permitted in Section 267-34 B.(7) (c) and Section 267-38 C. Since the remaining 40,000 sq feet of forest was cleared within the past 5 years Section 267-34-B.(7)(c) applies. Using the threshold percentage of 40% specified in Section 267-40 for low density residential use, 16,000 sq feet must be reforested at 2x the acreage cleared for a total of 32,000 sq feet. (0.7 acres). Section 267-39.A.(1)(a) requires afforestation of 20% of the net tract area or 5 acres (0.20 x 25 = 5 acres). Hence, the remaining 4.6 acres must be afforested at ¼ acre per acre for a total 1.2 acres giving a total reforestation requirement of 1.9 acres . Under Section 267-42 the Department of Planning and Zoning was satisfied that afforestation could not be “reasonably” accomplished. The fee-in-lieu equivalent is 1.9 acres x 43478 sq feet/acre x $0.40 = $33,043.

Net result: for a cost of approximately $33,000, 25 acres of forest was permanently destroyed for development.

Recommendations:

Redefine the time limits applicable to Section 267-34 B.(1)(b)
Change Section 267-34.B.(7)(c)(2) “after” to “before”
Define “reasonably” in Section 267-42
Eliminate or significantly increase the fee-in-lieu option to make it prohibitive.

Loophole 2

267.38-C. The density of the residential lots should be defined. 40,000 sq feet of forest clearing on 1 acre residential lots is far different than 40,000 sq feet of clearing on 5 acre residential lots.

? Loophole 3

Is there any possibility that the abbreviated process in Section 267-38 can lead to staggered or segmental approval of 5 lots, then an additional 5 lots at a later time under a different named entity without requiring a forest delineation plan?

4 . Simplification would be better.

A formula would be better to assist a planner in determining afforestion/reforestation.

Examples to assist in interpretation of the code

*Forest Retention/Afforestation and limiting Thresholds*

Assuming 50 acres of net tract with 20 acres of forest (40%) with requested clearing of 12 acres


Use	Required	*Thresh*	*Total*	*Orig*	*Above*	x 0.25	*Cleared*	*x 2*	*Total*	*Credit*	*Fee-in lieu*
	Retention		*clear*	*forest*	*Thresh*	*Reforest*	*below*	*Reforest*	*Reforest*
	%/acres	%/acres					*Thresh*				*$0.40/acre*
			acre	acre	acre	acre	acre	acre	acre	acre
*Natural Res*	50/10	50/10	10	10	10	2.5	0	0	2.5	0	$43,478.00
*Lew den res*	50/10	40/08	10	10	10	2.5	0	0	2.5	2	$8,695.60
*Medium den res*	40/08	40/08	12	8	12	3	0	0	3	0	$52,173.60
*Institutional*	30/06	30/06	12	8	12	3	0	0	3	2	$17,391.20
*High den res*	30/06	30/06	12	8	12	3	0	0	3	2	$17,391.20
*Bus & Ind*	15/03	30/06	12	8	12	3	0	0	3	2	$17,391.20
*Bus & Ind*	15/03	30/06	17	3	14	3.5	3	6	9.5	0	$165,216.40

	Blue = 2 acres not permitted


100 Acre Property

*Example 7*

100 Acre Property
50 acres of land contains 20 acres of forest. The land is converted to business use. Required retention is
15% of the forested area or 3 acres. 17 acres of forest is cleared. The threshold for clearance is
30% or 6 acres. 14 acres must be reforested at 1/4 acre per acre cleared or 3.5 acres.
3 acres was cleared below the threshold and must be afforested at 2 acres per acre or 6 acres.
The fee in lieu is 9.5 acres x 43478 sq feet per acre x $ 0.40 per square foot or $165,216.40.

*Example 4*


50 acres of land contains 20 acres of forest. The land is converted to institutional use. Required retention is
30% of the forested area or 6 acres. 12 acres of forest is cleared. The threshold for clearance is
30% or 6 acres. 12 acres must be reforested at 1/4 acre per acre cleared or 3 acres.
However, since 2 acres were retained above the threshold, there is a credit of 2 acres.
The fee in lieu is1 acres x 43478 sq feet per acre x $ 0.40 per square foot or $17,391.20.

FYI: Annotated Code of Maryland

Article - Natural Resources

§ 10-2A-04.

(a) Any species of wildlife or plant determined to be endangered species pursuant to the Endangered Species Act shall be deemed to be an endangered species under the provisions of this subtitle and any species of wildlife or plant determined to be a threatened species pursuant to the Endangered Species Act shall be deemed to be a threatened species under the provisions of this subtitle. The Secretary may determine, in accordance with this section, that any threatened species is an endangered species throughout all or any portion of the range of the species within the State.

(b) In addition to the species deemed to be endangered or threatened pursuant to the Endangered Species Act, the Secretary, by regulation, shall determine whether any species of wildlife or plant normally occurring within the State is an endangered or threatened species due to any of the following factors:

(1) The present or threatened destruction, modification, or curtailment of its habitat or range;

(2) Overutilization for commercial, sporting, scientific, educational, or other purposes;

(3) Disease or predation;

(4) The inadequacy of existing regulatory mechanisms; or

(5) Other natural or manmade factors affecting its continued existence within the State.

(c) The Secretary shall make determinations required by subsection (b) of this section on the basis of the best scientific, commercial, and other data available to and after consultation, as appropriate, with federal agencies, other interested State agencies, other states having a common interest in the species, and interested persons and organizations. In determining whether any species of wildlife or plant is an endangered species or a threatened species, the Secretary shall take into consideration any actions being carried out or about to be carried out by the federal government, other states, other agencies of this State, or political subdivisions, or by any other person which may affect the species under consideration.

(d) Except with respect to species of wildlife or plants determined to be endangered or threatened species under the provisions of subsection (a) of this section, the Secretary may not add a species to nor remove a species from any list published unless the Secretary first:

(1) Publishes a public notice of the proposed action;

(2) Furnishes notice of the proposed action to the Governor of any state sharing a common border with the State and in which the subject species is known to exist; and

(3) Allows at least 30 days following publication for comment from the public and other interested parties.

(e) Notwithstanding the provisions of subsection (d) of this section, if the Department determines that an emergency situation exists involving the continued existence of the species as a viable component of the State's wildlife or plants, the Department may add the species to the lists if the Department publishes a public notice that an emergency situation exists together with a summary of facts which support this determination.

(f) The Secretary shall adopt regulations containing a list of all species of wildlife and plants normally occurring within the State determined to be endangered species and a list of all species determined to be threatened species. Each list shall refer to the species by scientific and common names and shall specify with respect to each species over what portion of its range it is endangered or threatened.