Md. Code Regs. 08.19.03.01 - Ordinance for Local Program
The following Model Ordinance shall be to assist and guide in the development of a local program. This Model Ordinance will further enable each unit of local government with planning and zoning authority to determine the size, location and orientation of forest to be retained, and prioritize tracts of land for reforestation and afforestation. Although it is the intention of the Department that this chapter be liberally construed to accomplish its purpose, a local authority shall demonstrate that the substantive provisions of each article are incorporated in the local program. Some local authorities may be able to adopt this Ordinance with only minor changes appropriate to each jurisdiction. Other local authorities may choose to use elements of this Ordinance to amend existing laws, statutes, or Ordinances.
Model Forest Conservation Ordinance Ordinance Number______
An Ordinance for the purpose of prohibiting certain development projects from cutting or clearing certain forests within the Community of_________________unless a forest stand delineation and a forest conservation plan are in effect.
Article I
Purpose and
General Provisions.
1.1 Purpose.
The County Council has determined that to meet the requirements of Natural Resources Article, §§5-1601 -5-1612, Annotated Code of Maryland, the provisions of this Ordinance must be enacted.
Article II
Forest and Tree Conservation Definitions.
In this Ordinance the following terms have the meanings indicated.
2.1 "Afforestation" means:
A. Establishment of a forest on an area from which
forest cover has been absent for a long period of time; or
B. Planting of open areas which are not presently
in forest cover.
2.2
"Agricultural activity" means farming activities including plowing, tillage,
cropping, installation of best management practices, seeding, cultivating, and
harvesting for production of food and fiber products (except commercial logging and
timber harvesting operations), the grazing and raising of livestock, aquaculture,
sod production, orchards, nursery, and other products cultivated as part of a
recognized commercial enterprise.
2.3
"Agricultural and resource areas" means undeveloped areas zoned for densities of
less than or equal to one dwelling unit per 5 acres and corresponds to (Name of
County) County Zoning Classification(s) _____.
2.4 "Applicant" means a person who is applying for
subdivision or project plan approval or a grading or sediment control permit, or who
has received approval of a forest stand delineation or forest conservation
plan.
2.5 "Approved forest management
plan" means a document:
A. Approved by the
Department of Natural Resources forester assigned to the county in which the
property is located; and
B. Which
operates as a protective agreement for forest conservation as described in the
Natural Resources Article, §§5-1607(e)
-(f), Annotated Code of Maryland.
2.6 "Caliper" means the diameter measured at 2
inches above the root collar.
2.7
"Champion tree" means the largest tree of its species within the United States, the
State, county, or municipality;
2.8
Repealed.
2.9 "Commercial and industrial
uses" means manufacturing operations, office complexes, shopping centers, and other
similar uses and their associated storage areas, yarding and parking areas, and
corresponds to (Name of County) County Zoning Classification(s) _______.
2.10 "Commercial logging or timber harvesting
operations" means the cutting and removing of tree stems from a site for commercial
purposes, leaving the root mass intact.
2.11 "Critical habitat area" means a critical
habitat for an endangered species and its surrounding protection area. A critical
habitat area shall:
A. Be likely to contribute to
the long-term survival of the species;
B. Be likely to be occupied by the species for the
foreseeable future; and
C. Constitute
habitat of the species which is considered critical under Natural Resources Article,
§§ 4-2 A-04 and 10-2A-06, Annotated Code of Maryland.
2.12 "Critical habitat for endangered species"
means a habitat occupied by an endangered species as determined or listed under
Natural Resources Article, §§ 4-2 A-04 and 10-2A-04, Annotated Code of
Maryland.
2.13 "Declaration of intent"
means:
A. A signed and notarized statement by a
landowner or the landowner's agent certifying that the activity on the landowner's
property:
(1) Is for certain activities exempted
under this Ordinance or Natural Resources Article, §§5-103 and
5-1601 -5-1612,
Annotated Code of Maryland,
(2) Does not
circumvent the requirements of this Ordinance or Natural Resources Article,
§§5-103 and
5-1601 -5-1612,
Annotated Code of Maryland, and
(3) Does
not conflict with the purposes of any other declaration of intent;
or
B. The document required
under COMAR 08.19.01.05 or this
Ordinance.
2.14 "Department"
means the Department charged with implementing the local forest conservation
program.
2.15 Development Project.
A. "Development project" means the grading or
construction activities occurring on a specific tract that is 40,000 square feet or
greater.
B. "Development project"
includes redevelopment.
2.16
"Development project completion" means for the purposes of afforestation,
reforestation, or payment into a fund:
A. The
release of the development bond, if required;
B. Acceptance of the project's streets, utilities,
and public services by the Department; or
C. Designation by the Department or State that a:
(1) Development project has been completed,
or
(2) Particular stage of a staged
development project, including a planned unit development, has been
completed.
2.17
Forest.
A. "Forest" means a biological community
dominated by trees and other woody plants covering a land area of 10,000 square feet
or greater.
B. "Forest" includes:
(1) Areas that have at least 100 live trees per
acre with at least 50 percent of those trees having a 2-inch or greater diameter at
4.5 feet above the ground and larger; and
(2) Areas that have been cut but not
cleared.
C. "Forest" does not
include orchards.
2.18 "Forest
Conservancy District Board" means the forestry board created for each State forest
conservancy district under Natural Resources Article, §§5-601 -5-610, Annotated
Code of Maryland.
2.19 "Forest
conservation" means the retention of existing forest or the creation of new forest
at the levels set by the State or Department.
2.20 "Forest Conservation and Management
Agreement" means an agreement as stated in Tax-Property Article, §8-211,
Annotated Code of Maryland.
2.21 "Forest
Conservation Technical Manual" means the (Name of county) County technical manual
incorporated by reference, used to establish standards of performance required in
preparing forest stand delineations and forest conservation plans.
2.22 "Forest conservation plan" means a plan
approved pursuant to Natural Resources Article, §§5-1606 and
5-1607, Annotated Code
of Maryland.
2.23 "Forest cover" means
the area of a site meeting the definition of forest.
2.24 "Forest management plan" means a plan
establishing best conservation and management practices for a landowner in
assessment of the resource values of forested property.
2.24-1 "Forest mitigation bank" means an area of
land which has been intentionally afforested or reforested for the express purpose
of providing credits for reforestation requirements.
2.24-2 "Forest mitigation bank agreement" means an
agreement entered into by an individual owning a forest mitigation bank and the
Department or local government which commits the banker to certain procedures and
requirements when creating and operating the forest mitigation bank.
2.24-3 "Forest mitigation bank plan" means a plan
submitted for approval of a forest mitigation bank to the Department, or a local
government with an approved local program, by an individual proposing to establish a
forest mitigation bank.
2.25 "Forest
stand delineation" means the methodology for evaluating the existing vegetation on a
site proposed for development, as provided in the (Name of County) County Forest
Conservation Technical Manual.
2.26
"Growing season" means the period of consecutive frost-free days as stated in the
current soil survey for this county published by the National Cooperative Soil
Survey Program, 16 U.S.C. § 590(a) -(f).
2.27 "High density residential areas" means areas
zoned for densities greater 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, and corresponds to the (Name of County)
County Zoning Classification(s) of _____.
2.28 "Institutional development area" means
schools, colleges and universities, military installations, transportation
facilities, utility and sewer projects, government offices and facilities, golf
courses, recreation areas, parks, and cemeteries and corresponds to the (Name of
County) County Zoning Classification(s) of _____.
2.29 "Intermittent stream" means a stream in which
surface water is absent during a part of the year as shown on the most recent 7.5
minute topographic quadrangle published by the United States Geologic Survey as
confirmed by field verification.
2.30
"Landscaping plan" means a plan:
A. Drawn to
scale, showing dimensions and details for reforesting an area at least 35 feet wide
and covering 2,500 square feet or greater in size;
B. Using native or indigenous plants when
appropriate; and
C. Which is made part
of an approved forest conservation plan.
2.30-1 "Linear project" means a project which:
A. Is elongated with nearly parallel
sides;
B. Is used to transport a utility
product or public service not otherwise contained in an application for subdivision,
such as electricity, gas, water, sewer, communications, trains, and vehicles;
and
C. May traverse fee simple
properties through defined boundaries, or established easement
rights.
2.31 "Local agency"
means each unit in the executive, legislative, or judicial branch of a county or
municipal government, including an office or department of public works.
2.32 "Lot" means a unit of land, the boundaries of
which have been established by subdivision of a larger parcel, and which will not be
the subject of further subdivision, as defined by Natural Resources Article, §5-1601, Annotated Code
of Maryland, and this Ordinance without an approved forest stand delineation and
forest conservation plan.
2.33
"Maintenance agreement" means the short-term management agreement associated with
afforestation or reforestation plans required under Natural Resources Article,
§5-1605, Annotated Code
of Maryland, and this Ordinance.
2.34
"Medium density residential areas" means areas zoned for densities greater 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, and corresponds to the (Name
of County) County Zoning Classification(s) of _____.
2.35 "Minor development project" means a project:
A. On less than 5 acres of land containing not
more than four lots per acre; or
B.
Substantively similar as defined by the Department and approved by the
State.
2.36 "Mixed use
development" means a single, relatively high density development project, usually
commercial in nature, which includes two or more types of uses, and corresponds to
the (Name of County) County Zoning Classification(s) of _____.
2.37 "Natural regeneration" means the natural
establishment of trees and other vegetation with at least 400 woody, free-to-grow
seedlings per acre, which are capable of reaching a height of at least 20 feet at
maturity.
2.38 "Net tract area" means:
A. Except in agriculture and resource areas, the
total area of a site, including both forested and nonforested areas, to the nearest
1/10 acre, reduced by that area where forest clearing is restricted by another local
ordinance or program;
B. In agriculture
and resource areas, the part of the total tract for which land use will be changed
or will no longer be used for primarily agricultural activities, reduced by that
area where forest clearing is restricted by another local ordinance or program;
and
C. For a linear project:
(1) The area of a right-of-way width, new access
roads, and storage; or
(2) The limits of
disturbance as shown on an application for sediment and erosion control approval or
in a capital improvements program project description.
2.39 Nontidal Wetlands.
A. "Nontidal wetlands" means an area that is:
(1) Inundated or saturated by surface or
groundwater at a frequency and duration sufficient to support, and under normal
conditions does support, a prevalence of vegetation typically adapted for life in
saturated soil conditions, commonly known as hydrophytic vegetation; and
(2) Considered a nontidal wetland in accordance
with the publication known as the "Federal Manual for Identifying and Delineating
Jurisdictional Wetlands," published in 1989 and as may be amended and interpreted by
the U.S. Environmental Protection Agency.
B. "Nontidal wetlands" does not include tidal
wetlands regulated under Natural Resources Article, Title 9, Annotated Code of
Maryland.
2.40 "Offsite" means
outside of the limits of the area encompassed by the tract.
2.41 "Onsite" means within the limits of the area
encompassed by the tract, including an area classified as a 100-year
floodplain.
2.42 "100-year flood" means
a flood which has a 1 percent chance of being equalled or exceeded in any given
year. Except for Class III waters (natural trout streams), a body of water with a
watershed less than 400 acres is excluded
2.43 "100-year floodplain" means an area along or
adjacent to a stream or body of water, except tidal waters, that is capable of
storing or conveying floodwaters during a 100-year frequency storm event, or a
100-year flood.
2.44 "Perennial stream"
means a stream containing surface water throughout an average rainfall year, as
shown on the most recent 7.5 minute topographic quadrangle published by the United
States Geologic Survey, as confirmed by field verification.
2.45 "Person" means the federal government, the
State, a county, municipal corporation, or other political subdivision of the State,
or any of their units, or an individual, receiver, trustee, guardian, executor,
administrator, fiduciary, or representative of any kind, or any partnership, firm,
association, public or private corporation, or any of their affiliates, or any other
entity.
2.46 "Planned unit development"
means a development comprised of a combination of land uses or varying intensities
of the same land use in accordance with an integrated plan that provides flexibility
in land use design approved by (Name of County) County with at least 20 percent of
the land permanently dedicated to open space and corresponds to (Name of County)
County Zoning Classification _____.
2.47
"Priority funding area" means an area designated as a priority funding area under
State Finance and Procurement Article, § 5-7 b-02, Annotated Code of
Maryland.
2.48 "Project plan" means a
construction, grading, or sediment control activity on an area of 40,000 square feet
or greater by a local agency.
2.49
"Public utility" means any:
A. Transmission line
or electric generating station; or
B.
Water, sewer, electric, gas, telephone, or television cable service
line.
2.50 Reforestation.
A. "Reforestation" or "reforested" means the:
(1) Creation of a biological community dominated
by trees and other woody plants containing at least 100 live trees per acre with at
least 50 percent of those trees having the potential of attaining a 2-inch or
greater diameter measured at 4.5 feet above the ground, within 7 years; or
(2) Establishment of a forest according to
procedures set forth in the (Name of county) County Forest Conservation Technical
Manual.
B. "Reforestation" or
"reforested" includes landscaping of areas under an approved landscaping plan
establishing a forest at least 35 feet wide and covering 2,500 square feet or more
of area.
C. "Reforestation" or
"reforested" for a linear project involving overhead transmission lines may consist
of a biological community dominated by trees and woody shrubs with no minimum height
or diameter criteria.
2.51
"Regulated activity" means any of the following activities, when that activity
occurs on a unit of land which is 40,000 square feet or greater:
A. Subdivision;
B. Grading;
C. An activity that requires a sediment control
permit; or
D. Project plan of a local
agency.
2.52 "Retention" means
the deliberate holding and protecting of existing trees, shrubs, or plants on the
site according to established standards as provided in the (Name of County) County
Forest Conservation Technical Manual.
2.53 "Sediment control permit" means the
authorization of an activity regulated under a sediment control plan as provided in
Environment Article, Title 4, Annotated Code of Maryland.
2.54 "Seedling" means an unbranched woody plant,
less than 24 inches in height and having a diameter of less than 1/2 inch measured
at 2 inches above the root collar.
2.55
"Selective clearing" means the careful and planned removal of trees, shrubs, and
plants using specific standards and protection measures under an approved forest
conservation plan.
2.56 "Stream buffer"
means all lands lying within 50 feet, measured from the top of each normal bank of a
perennial or intermittent stream.
2.57
"Stream restoration project" means an activity that:
A. Is designed to stabilize stream banks or
enhance stream function or habitat located within an existing stream, waterway, or
floodplain;
B. Avoids and minimizes
impacts to forests and provides for replanting on-site an equivalent number of trees
to the number removed by the project;
C.
Maybe performed under a municipal separate storm sewer system permit, a watershed
implementation plan growth offset, or another plan administered by the State or
local government to achieve or maintain water quality standards; and
D. Is not performed to satisfy stormwater
management, wetlands mitigation, or any other regulatory requirement associated with
proposed development activity.
2.58 "Subdivision" means any division of a unit of
land into 2 or more lots or parcels for the purpose, whether immediate or future, of
transfer of ownership, sale, lease, or development.
2.59 Timber Harvesting.
A. "Timber harvesting" means a tree-cutting
operation affecting 1 or more acres of forest or developed woodland within a 1-year
interval that disturbs 5,000 square feet or more of forest floor.
B. "Timber harvesting" does not include grubbing
and clearing of root mass.
2.60 "Tract" means property or unit of land
subject to an application for a grading or sediment control permit, subdivision
approval, project plan approval, or areas subject to this law.
2.61 "Tract for a planned unit development" means
the entire property subject to a planned unit development.
2.62 "Tree" means a large, branched woody plant
having one or several self-supporting stems or trunks that reach a height of at
least 20 feet at maturity.
2.63
Variance.
A. "Variance" means relief from Natural
Resources Article, §§5-1601 -5-1612,
Annotated Code of Maryland, or this Ordinance.
B. "Variance" does not mean a zoning
variance.
2.64 "Watershed"
means all land lying within an area described as a subbasin in water quality
regulations adopted by the Department of the Environment under COMAR 26.08.02.08.
2.65 "Whip" means an unbranched woody
plant greater than 24 inches in height and having a diameter of less than 1 inch
measured at 2 inches above the root collar.
Article III Application.
3.1 Except as provided in § 3.2 of this
article, this Ordinance applies to:
A. A person
making application for a subdivision, project plan, grading, or sediment control
approval on units of land 40,000 square feet or greater after the effective date of
this Ordinance;
B. A public utility not
exempt under § 3.2E and F of this article;
C. A unit of county or municipal government,
including a public utility or public works project, making application for a
subdivision, project plan, grading, or sediment control approval on areas 40,000
square feet or greater.
3.2
This Ordinance does not apply to:
A. Highway
construction activities under Natural Resources Article, §5-103, Annotated Code of
Maryland;
B. Areas governed by the
Chesapeake Bay Critical Area Protection Law, Natural Resources Article, §§8-1801 -8-1817,
Annotated Code of Maryland, including those areas into which Critical Area forest
protection measures have been extended under Natural Resources Article, §5-1602(c),
Annotated Code of Maryland;
C.
Commercial logging and timber harvesting operations, including harvesting conducted
subject to the forest conservation and management program under Tax-Property
Article, §8-211, Annotated Code of Maryland, that are completed:
(1) Before July 1, 1991; or
(2) After July 1, 1991, on property which:
(a) Has not been the subject of application for a
grading permit for development within 5 years after the logging or harvesting
operation, and
(b) Is the subject of a
declaration of intent as provided for in § 3.3 of this article, approved by the
Department;
D.
Agricultural activities not resulting in a change in land use category, including
agricultural support buildings and other related structures built using accepted
best management practices, except that a person engaging in an agricultural activity
clearing 40,000 square feet or greater of forest within a 1-year period, may not
receive an agricultural exemption, unless the person files a declaration of intent
as provided for in § 3.3 of this article which includes:
(1) A statement that the landowner or landowner's
agent will practice agriculture on that portion of the property for 5 years from the
date of the declaration; and
(2) A
sketch map of the property which shows the area to be cleared;
E. The cutting or clearing of public utility
rights-of-way licensed under Public Utility Companies, §§7-207 and 7-208
or 7-205, Annotated Code of Maryland, or land for electric generating stations
licensed under Public Utility Companies, §§7-207 and 7-208 or 7-205,
Annotated Code of Maryland, if:
(1) Required
certificates of public convenience and necessity have been issued in accordance with
Natural Resources Article, §5-1603(f),
Annotated Code of Maryland; and
(2)
Cutting or clearing of the forest is conducted to minimize the loss of
forest;
F. Routine maintenance
or emergency repairs of public utility rights-of-way licensed under Public Utility
Companies, §§7-207 and 7-208 or 7-205, Annotated Code of
Maryland;
G. Except for a public utility
subject to § 3.2F of this article, routine maintenance or emergency repairs of
a public utility right-of-way if:
(1) The
right-of-way existed before the effective date of this Ordinance; or
(2) The right-of-way's initial construction was
approved under this Ordinance;
H. A residential construction activity conducted
on an existing single lot of any size of record at the time of application, or a
linear project not otherwise exempted under this Ordinance, if the activity:
(1) Does not result in the cumulative cutting,
clearing, or grading of more than 20,000 square feet of forest;
(2) Does not result in the cutting, clearing, or
grading of a forest that is subject to the requirements of a previous forest
conservation plan approved under this Ordinance; and
(3) Is the subject of a declaration of intent
filed with the Department, as provided for in § 3.3 of this article, stating
that the lot will not be the subject of a regulated activity within 5 years of the
cutting, clearing, or grading of forest;
I. Strip or deep mining of coal regulated under
Environment Article, Title 15, Subtitle 5 or 6, Annotated Code of
Maryland;
J. Noncoal surface mining
regulated under Environment Article, Title 15, Subtitle 8, Annotated Code of
Maryland;
K. An activity required for
the purpose of constructing a dwelling house intended for the use of the owner, or a
child of the owner, if the activity:
(1) Does not
result in the cutting, clearing, or grading of more than 20,000 square feet of
forest; and
(2) Is the subject of a
declaration of intent filed with the Department, as provided for in § 3.3 of
this article, which states that transfer of ownership may result in a loss of
exemption;
L. A preliminary
plan of subdivision or a grading or sediment control plan approved before July 1,
1991;
M. A planned unit development
that, by December 31, 1991, has:
(1) Met all
requirements for planned unit development approval; and
(2) Obtained initial development plan approval by
the Department;
N. A real
estate transfer to provide a security, leasehold, or other legal or equitable
interest, including a transfer of title, of a portion of a lot or parcel, if:
(1) The transfer does not involve a change in land
use, or new development or redevelopment, with associated land-disturbing
activities; and
(2) Both the grantor and
grantee file a declaration of intent, as provided for in § 3.3 of this
article;
O. An activity on a
previously developed area covered by impervious surface and located in the priority
funding area;
P. Maintenance or
retrofitting of a stormwater management structure that may include clearing of
vegetation or removal and trimming of trees, if the maintenance or retrofitting is
within the original limits of disturbance for construction of the existing
structure, or within any maintenance easement for access to the structure;
or
Q. A stream restoration project, as
defined in Article II 2.57 of this ordinance, for which the applicant for a grading
or sediment control permit has executed a binding maintenance agreement of at least
5 years with the affected property owner or owners.
3.3 Declaration of Intent.
A. The purpose of the declaration of intent is to
verify that the proposed activity is exempt under Natural Resources Article,
§§5-103 and
5-1601 -5-1612,
Annotated Code of Maryland, and this Ordinance.
B. A person seeking an exemption under §
3.2C, D, H, K, and N of this article shall file a declaration of intent with the
Department.
C. The declaration of intent
is effective for 5 years.
D. The
existence of a declaration of intent does not preclude another exempted activity on
the property subject to a declaration of intent, if the activity:
(1) Does not conflict with the purpose of any
existing declaration of intent; and
(2)
Complies with the applicable requirements for an exempted
activity.
E. If a regulated
activity on the area covered by the declaration of intent occurs within 5 years of
the effective date of the declaration of intent:
(1) There shall be an immediate loss of exemption;
or
(2) There may be a noncompliance
action taken by the Department, as appropriate, under this
Ordinance.
F. An applicant may
apply for a regulated activity on that area of the property not covered under the
declaration of intent if the requirements of this Ordinance are satisfied.
G. The Department may require a person failing to
file a declaration of intent or found in noncompliance with a declaration of intent
to:
(1) Meet the retention, afforestation, and
reforestation requirements established in Articles III-XIII of this
Ordinance;
(2) Pay a noncompliance fee
of 30 cents per square foot of forest cut or cleared under the declaration of
intent;
(3) Be subject to other
enforcement actions appropriate under Natural Resources Article, §§5-1601 -5-1612,
Annotated Code of Maryland, and this Ordinance; or
(4) File a declaration of intent with the
Department.
H. In its
determination of appropriate enforcement action, the Department may consider whether
failure to file a declaration of intent by a person required to file is a knowing
violation of this Ordinance.
I.
Commercial Logging and Timber Harvesting. The requirements for a declaration of
intent may be satisfied by a forest management plan for the entire tract, prepared
by a forester licensed in Maryland according to Business Occupations and Professions
Article, Title 7, Annotated Code of Maryland, which outlines management practices
needed to meet the stated objectives for a minimum of 5 years.
J. Agricultural Activities or Commercial Logging
and Timber Harvesting. A declaration of intent may be part of an amended sediment
and erosion control plan which ensures that the activity meets the conditions for an
exemption as stated in Article III, § 3.2C and D of this
Ordinance.
Article
IV General Requirements.
4.1 A person
making application after the effective date of _____, for subdivision or local
agency project plan approval, a grading permit, or a sediment control permit for an
area of land of 40,000 square feet or greater shall:
A. Submit to the Department a forest stand
delineation and a forest conservation plan for the lot or parcel on which the
development is located; and
B. Use
methods approved by the Department, as provided in the (Name of County) County
Forest Conservation Technical Manual, to protect retained forests and trees during
construction.
4.2 If a local
agency or person using state funds makes application to conduct a regulated
activity, the provisions of COMAR
08.19.04.01D-G
apply.
Article V Forest Stand
Delineation.
5.1 Criteria.
A. A forest stand delineation shall be submitted
at the initial stages of subdivision or project plan approval, before a grading
permit application, or before a sediment control application is submitted for the
tract being developed.
B. The
delineation shall be prepared by a licensed forester, licensed landscape architect,
or a qualified professional who meets the requirements stated in COMAR
08.19.06.01A.
C. The delineation shall be used during
the preliminary review process to determine the most suitable and practical areas
for forest conservation and shall contain the following components:
(1) A topographic map delineating intermittent and
perennial streams, and steep slopes over 25 percent;
(2) A soils map delineating soils with structural
limitations, hydric soils, or soils with a soil K value greater than 0.35 on slopes
of 15 percent or more;
(3) Forest stand
maps indicating species, location, and size of trees and showing dominant and
codominant forest types;
(4) Location of
100-year floodplains;
(5) Information
required by the (Name of county) County Forest Conservation Technical Manual;
and
(6) Other information the Department
determines is necessary to implement this Ordinance.
D. If approved by the Department, a simplified
delineation, a concept plan or plat, preliminary plat or plan, sediment control
plan, or other appropriate document, verified by a site visit, if appropriate, may
substitute for the forest stand delineation if:
(1) No forest cover is disturbed during a
construction activity; and
(2)
Designated to be under a long term protective agreement.
E. The Department shall consider a simplified
forest stand delineation, or other substitute plan described in § 5.1D,
complete if it includes:
(1) All requirements under
§ 5.1C(1), (2), (4), and (5) of this article;
(2) A map showing existing forest cover as
verified by field inspection; and
(3)
Other information required by this Ordinance.
F. An approved forest stand delineation may remain
in effect for a period not longer than 5 years.
G. Time for Submittal.
(1) Within 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 30 days, the delineation shall be treated as complete and
correct.
(3) The Department may require
further information or provide for an additional 15 calendar days under extenuating
circumstances.
Article
VI Forest Conservation Plan.
6.1
General Provisions.
A. In developing a forest
conservation plan, the applicant shall give priority to techniques for retaining
existing forest on the site.
B. If
existing forest on the site subject to a forest conservation plan cannot be
retained, the applicant shall demonstrate to the satisfaction of the Department:
(1) How techniques for forest retention have been
exhausted;
(2) Why the priority forests
and priority areas specified in Natural Resources Article, §5-1604(c)(1),
Annotated Code of Maryland, cannot be left in an undisturbed condition:
(a) If priority forests and priority areas cannot
be left undisturbed, how the sequence for afforestation or reforestation will be
followed in compliance with Natural Resources Article, §5-1607, Annotated Code
of Maryland;
(b) Where on the site in
priority areas afforestation or reforestation will occur in compliance with Natural
Resources Article, §5-1607, Annotated Code
of Maryland; and
(3) How the
disturbance to the priority forests and priority areas specified in Natural
Resources Article, §5-1607(c)(2),
Annotated Code of Maryland, qualifies for a variance.
C. The applicant shall demonstrate to the
satisfaction of the Department that the requirements for afforestation or
reforestation onsite or offsite cannot be reasonably accomplished if the applicant
proposes to make a payment into the local forest conservation fund or to purchase
credits from a forest mitigation bank.
D. Nontidal Wetlands. A regulated activity within
the net tract area that occurs wholly or partly in areas regulated as nontidal
wetlands under Environment Article, Title 9, Annotated Code of Maryland, is subject
to both the nontidal wetlands regulatory requirements and the requirements of this
law, subject to the following:
(1) Any area of
forest in the net tract area, including forest in nontidal wetlands that is
retained, shall be counted towards forest conservation requirements under this
law;
(2) For the purpose of calculating
reforestation mitigation under this Ordinance, a forested nontidal wetland permitted
to be cut or cleared and required to be mitigated under Environment Article, Title
9, Annotated Code of Maryland, shall be shown on the forest conservation plan and
subtracted on an acre-for-acre basis from the total amount of forest to be cut or
cleared as part of a regulated activity;
(3) Nontidal wetlands shall be considered to be
priority areas for retention and replacement;
(4) Forested nontidal wetland identification and
delineation should be included at the earliest stage of planning to assist the
applicant in avoidance and reduction of impacts to the nontidal wetlands and to
avoid delay in the approval process.
6.2 Preliminary Forest Conservation Plan.
A. A preliminary forest conservation plan shall be
prepared by a licensed forester, a licensed landscape architect, or a qualified
professional who meets the requirements stated in COMAR
08.19.06.01A.
B. A preliminary forest conservation
plan shall:
(1) Be submitted with the preliminary
plan of subdivision or proposed project plan;
(2) Include the approved forest stand delineation
for the site;
(3) Include a table that
lists the proposed values of the following, in square feet:
(a) Net tract area,
(b) Area of forest conservation required,
and
(c) Area of forest conservation that
the applicant proposes to provide, including both onsite and offsite
areas;
(4) Include a clear
graphic indication of the forest conservation provided on the site drawn to scale,
showing areas where retention of existing forest or afforestation or reforestation
is proposed;
(5) Include an explanation
of how the provisions of § 6.1 of this article have been met;
(6) In the case of afforestation or reforestation,
include a proposed afforestation or reforestation plan;
(7) Include a proposed construction timetable
showing the sequence of forest conservation procedures;
(8) Show the proposed limits of
disturbance;
(9) Show proposed stockpile
areas;
(10) Incorporate a proposed
2-year maintenance agreement that shows how areas designated for afforestation or
reforestation will be maintained to ensure protection and satisfactory
establishment; and
(11) Other
information the Department determines is necessary to implement this
Ordinance.
C. The review of
the preliminary forest conservation plan shall be concurrent with the review of the
preliminary site plan.
D. During the
different stages of the review process, the preliminary forest conservation plan may
be modified provided the Department approves of the changes.
6.3 The Final Forest Conservation Plan.
A. A final forest conservation plan shall be
prepared by a licensed forester, a licensed landscape architect, or a qualified
professional who meets the requirements stated in COMAR
08.19.06.01A.
B. A final forest conservation plan
shall:
(1) Be submitted with the following:
(a) A final subdivision plan,
(b) A final project plan,
(c) An application for a grading permit,
or
(d) An application for a sediment
control permit;
(2) Show
proposed locations and types of protective devices to be used during construction
activities to protect trees and forests designated for conservation;
(3) In the case of afforestation or reforestation,
include an afforestation or reforestation plan, with a timetable and description of
needed site and soil preparation, species, size, and spacing to be used;
(4) Incorporate a binding 2-year maintenance
agreement specified in COMAR
08.19.05.01 that details how the areas
designated for afforestation or reforestation will be maintained to ensure
protection and satisfactory establishment, including:
(a) Watering, and
(b) A reinforcement planting provision if survival
rates fall below required standards, as provided in the (Name of County) County
Forest Conservation Technical Manual;
(5) Incorporate a long-term binding protective
agreement as specified in COMAR
08.19.05.02 that:
(a) Provides protection for areas of forest
conservation, including areas of afforestation, reforestation, and retention,
and
(b) Limits uses in areas of forest
conservation to those uses that are designated and consistent with forest
conservation, including recreational activities and forest management practices that
are used to preserve forest;
(6) Include the substantive elements required
under § 6.2B(2) -(5), (7)-(9), and (11) of this article, as finalized elements
of the forest conservation plan; and
(7)
Other information the Department determines is necessary to implement this
Ordinance.
C. Time for
Submittal.
(1) Within 45 calendar days after
receipt of the final 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 additional 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 final forest conservation plan shall be concurrent with the
review of the final subdivision or project plan, grading permit application, or
sediment control application associated with the project.
E. The Department may revoke an approved forest
conservation plan if it finds that:
(1) A 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. The Department may issue a stop work order
against a person who violates a provision of this Ordinance or a regulation, order,
approved forest conservation plan, or maintenance agreement.
G. Before revoking approval of a forest
conservation plan, the Department shall notify the violator in writing and provide
an opportunity for a hearing.
Article VII Afforestation and Retention.
7.1 Afforestation Requirement. A person making
application after the effective date of this Ordinance for subdivision or project
plan approval, a grading permit, or a sediment control permit for an area of land of
40,000 square feet or greater, shall:
A. Conduct
afforestation on the lot or parcel in accordance with the following:
(1) A tract having less than 20 percent of the net
tract area in forest cover shall be afforested up to at least 20 percent of the net
tract area for the following land use categories:
(a) Agriculture and resource areas, and
(b) Medium density residential
areas;
(2) A tract with less
than 15 percent of its net tract area in forest cover shall be afforested up to at
least 15 percent of the net tract area for the following land use categories:
(a) Institutional development areas,
(b) High density residential areas,
(c) Mixed use and planned unit development areas,
and
(d) Commercial and industrial use
areas;
B. Comply
with the following when cutting into forest cover that is currently below the
afforestation percentages described in § 7.1A(1) and (2) of this article:
(1) The required afforestation level shall be
determined by the amount of forest existing before cutting or clearing begins;
and
(2) Forest cut or cleared below the
required afforestation level shall be reforested or afforested at a 2 to 1 ratio and
added to the amount of afforestation necessary to reach the minimum required
afforestation level, as determined by the amount of forest existing before cutting
or clearing began.
7.2 Retention. The following trees, shrubs,
plants, and specific areas are 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 reasonably be altered:
A. Trees, shrubs, and plants located in sensitive
areas including the 100-year floodplain, intermittent and perennial streams and
their buffers, coastal bays and their buffers, steep slopes, nontidal wetlands, and
critical habitats; and
B. Contiguous
forest that connects the largest undeveloped or most vegetated tracts of land within
and adjacent to the site.
7.2-1 Retention. The following trees, shrubs,
plants, and specific areas are 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 the applicant qualifies for a variance in
accordance with Section 14.1 of this article:
A.
Trees, shrubs, or plants determined to be rare, threatened, or endangered under:
(2) The Maryland Nongame and Endangered Species
Conservation Act, Natural Resources Article, §§ 10-2 A-01-10-2A-09,
Annotated Code of Maryland, and
(3)
COMAR 08.03.08;
B. Trees that:
(1) Are part of an historic site,
(2) Are associated with an historic structure,
or
(3) Have been designated by the State
or the Department as a national, State, or county champion tree;
and
C. Any tree having a
diameter measured at 4.5 feet above the ground of:
(1) 30 inches or more, or
(2) 75 percent or more of the diameter, measured
at 4.5 feet above the ground, of the current State champion tree of that species as
designated by the Department of Natural Resources.
Article VIII
Reforestation.
8.1 Forest Conservation Threshold.
A. There is a forest conservation threshold
established for all land use categories, as provided in Subsection B of this
article. The forest conservation threshold means the percentage of the net tract
area at which the reforestation requirement changes from a ratio of 1/4 acre planted
for each acre removed above the threshold to a ratio of 2 acres planted for each
acre removed below the threshold.
B.
After reasonable efforts to minimize the cutting or clearing of trees and other
woody plants have been exhausted in the development of a subdivision or project
plan, grading and sediment control activities, and implementation of the forest
conservation plan, the forest conservation plan shall provide for reforestation,
purchase of credits from a forest mitigation bank, or payment into the forest
conservation fund, according to the formula set forth in Subsections B and C of this
article and consistent with § 6.1 of this article, and the following forest
conservation thresholds for the applicable land use category:
| Category of Use | Threshold Percentage |
| (1) Agricultural and resource areas | 50 percent; |
| (2) Medium density residential areas | 25 percent; |
| (3) Institutional development areas | 20 percent; |
| (4) High density residential areas | 20 percent; |
| (5) Mixed use and planned unit development areas | 15 percent; |
| (6) Commercial and industrial use areas | 15 percent. |
C.
Calculations.
(1) For all existing forest cover
measured to the nearest 1/10th acre cleared on the net tract area above the
applicable forest conservation threshold, the area of forest removed shall be
reforested at a ratio of 1/4 acre planted for each acre removed.
(2) Each acre of forest retained on the net tract
area above the applicable forest conservation threshold shall be credited against
the total number of acres required to be reforested under paragraph (1) of this
subsection. The calculation of the credit shall be according to the criteria
provided in the (Name of County) County Forest Conservation Technical
Manual.
(3) For all existing forest
cover measured to the nearest 1/10th acre cleared on the net tract area below the
applicable forest conservation threshold, the area of forest removed shall be
reforested at a ratio of 2 acres planted for each acre removed below the
threshold.
Article
IX Priorities and Time Requirements for Afforestation and
Reforestation.
9.1 Sequence for Afforestation and
Reforestation.
A. After techniques for retaining
existing forest on the site have been exhausted, the preferred sequence for
afforestation and reforestation, as determined by the Department, is as follows:
(1) Forest creation in accordance with a forest
conservation plan using one or more of the following:
(a) Transplanted or nursery stock,
(b) Whip and seedling stock, or
(c) Natural regeneration where it can be
adequately shown to meet the objective of the State Forest Conservation Technical
Manual;
(2) In a municipal
corporation with a tree management plan and in an existing population center
designated in a county master plan that has been adopted to conform with the
Economic Growth, Resource Protection, and Planning Act of 1992, or in any other
designated area approved by the Department, the use of:
(a) Street trees as a permissible step in the
priority sequence for afforestation or reforestation and with a mature canopy
coverage may be granted full credit as a mitigation technique, and
(b) Acquisition of an off-site protection easement
on existing forested areas not currently protected in perpetuity as a mitigation
technique, in which case the afforestation or reforestation credit granted may not
exceed 50 percent of the area of forest cover protected;
(3) When all other options, both on-site and
off-site, have been exhausted, landscaping as a mitigation technique conducted under
an approved landscaping plan that establishes a forest at least 35 feet wide and
covering at least 2,500 square feet of area.
B. A sequence other than the one described in
Subsection A of this article 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 considered
a priority for afforestation and reforestation:
(1)
Those techniques that enhance existing forest and involve selective clearing or
supplemental planting on-site;
(2)
On-site afforestation or reforestation where the retention options have been
exhausted, using methods selected in accordance with Subsection F of this section,
and the location being selected in accordance with this subsection;
(3) Off-site afforestation or reforestation in the
same watershed or in accordance with an approved master plan where the applicant has
demonstrated that no reasonable alternative on-site exists, or where:
(a) Any on-site priority areas for afforestation
or reforestation have been planted in accordance with this subsection; and
(b) The applicant has justified to the
Department's satisfaction that environmental benefits associated with off-site
afforestation or reforestation exceed those derived from on-site
planting.
D. In the
cases cited in Subsection C of this section, the method shall be selected in
accordance with Subsection F of this section and the location shall be selected in
accordance with Subsection C of this section.
E. Off-site afforestation or reforestation may
include the use of forest mitigation banks which have been so designated in advance
by the Department.
F. Standards for
meeting afforestation or reforestation requirements shall be established using one
or more of the following methods:
(1) Establish or
enhance forest buffers adjacent to intermittent and perennial streams, and coastal
bays and their buffers, to widths of at least 50 feet;
(2) Establish or increase existing forested
corridors to connect existing forests within or adjacent to the site and, where
practical, forested corridors should be a minimum of 300 feet in width to facilitate
wildlife movement;
(3) Establish or
enhance forest buffers adjacent to critical habitats where appropriate;
(4) Establish or enhance forested areas in the
100-year floodplains;
(5) Establish
plantings to stabilize slopes of 25 percent or greater and slopes of 15 percent or
greater with a soil K value greater than 0.35 including the slopes of ravines or
other natural depressions;
(6) Establish
buffers adjacent to areas of differing land use when appropriate, or adjacent to
highways or utility rights-of-way;
(7)
Establish forest areas adjacent to existing forests to increase the overall area of
contiguous forest cover, when appropriate; and
(8) Use native plant materials for afforestation
or reforestation, when appropriate.
G. A person required to conduct afforestation or
reforestation under this article shall accomplish it within 1 year or two growing
seasons, whichever is a greater time period, following development project
completion.
Article
X Payment Instead of Afforestation and Reforestation.
10.1 Forest Conservation Fund.
A. There is established a forest conservation fund
in the local program that meets the requirements of Natural Resources Article,
§5-1610(h-l),
Annotated Code of Maryland.
B. If a
person subject to this Ordinance demonstrates to the satisfaction of the Department
that requirements for reforestation or afforestation onsite or offsite cannot be
reasonably accomplished and appropriate credits generated by a forest mitigation
bank in the same county or watershed are not available, the person shall contribute
money into the county forest conservation fund:
(1) For a project inside a priority funding area,
as defined in Natural Resources Article, §5-1610, Annotated Code
of Maryland, at a rate of 30.5 cents per square foot of the area of required
planting with the amount adjusted by the Department based on the previous year's
inflation rate and
(2) For a project
outside a priority funding area, at a rate of 36.6 cents per square foot of the area
of required planting
C. Money
contributed instead of afforestation or reforestation under this article shall be
paid within 90 calendar days after development project completion.
D. The county shall accomplish the reforestation
or afforestation for the equivalent number of acres for which the money is deposited
within 2 years or 3 growing seasons, whichever is a greater time period, after
receipt of the money.
E. Money deposited
in the local forest conservation fund:
(1) May be
spent on the costs directly related to reforestation and afforestation, including
site identification, acquisition, preparation, maintenance of existing forests, and
achieving urban canopy goals;
(2) Shall
be deposited in a separate forest conservation fund; and
(3) May not revert to the general
fund.
F. Sites for
Afforestation or Reforestation Using Fund Money.
(1) Except as provided in Subsection G(2) of this
section, the reforestation or afforestation requirement under this article shall
occur in the county and watershed in which the project is located.
(2) If the reforestation or afforestation cannot
be reasonably accomplished in the county and watershed in which the project is
located, then the reforestation or afforestation shall occur in the county or
watershed in the state in which the project is located.
G. If there is no local forest conservation fund
established, a person may contribute to the State fund. The Department of Natural
Resources shall determine when contribution is allowable under COMAR
08.19.02.02I.
Article X-1 Payment
by Credits From a Forest Mitigation Bank.
10.1.1
Use of Forest Mitigation Bank
A. If a person
subject to this Ordinance demonstrates to the satisfaction of the Department that
requirements for reforestation or afforestation onsite or offsite cannot be
reasonably accomplished, the person may contribute credits from a forest mitigation
bank. A credit is required for each tenth of an acre of an area of required
planting.
B. The credits shall be
debited from an approved forest mitigation bank within 90 calendar days after
development project completion.
Article X-2 Establishing Forest Mitigation Banks.
10.1.2 Forest Mitigation Banks.
A. A person may create a forest mitigation bank
from which applicants may purchase credits to meet the afforestation and
reforestation requirements of this Ordinance.
B. The forest mitigation bank shall:
(1) Afforest or reforest an area of land in
accordance with a forest mitigation bank agreement;
(2) Be protected by an easement, deed
restrictions, or covenants which require the land in the bank to remain forested in
perpetuity and are enforceable by the Department and the Department of Natural
Resources;
(3) Limit the use of the land
in the bank to those activities which are not inconsistent with forest conservation
such as recreational activities, forest management under a forest conservation and
management program under Tax-Property Article, §8-211, Annotated Code of
Maryland, or activities specified in a forest management plan prepared by a licensed
forester and approved by the Department;
(4) Use native plant materials for afforestation
or reforestation unless inappropriate; and
(5) Cause trees to be planted which:
(a) Establish or enhance forested buffers adjacent
to intermittent and perennial streams and coastal bays to widths of at least 50
feet;
(b) Establish or increase existing
forested corridors, which, where practical, should be a minimum of 300 feet in width
to facilitate wildlife movement, to connect existing forests within or adjacent to
the site;
(c) Establish or enhance
forest buffers adjacent to critical habitats where appropriate;
(d) Establish or enhance forested areas in
100-year floodplains;
(e) Stabilize
slopes of 25 percent or greater;
(f)
Stabilize slopes of 15 percent or greater with a soil K value greater than 0.35
including the slopes of ravines or other natural depressions;
(g) Establish buffers adjacent to areas of
differing land use where appropriate, or adjacent to highways or utility
rights-of-way; or
(h) Establish forest
areas adjacent to existing forests to increase the overall area of contiguous forest
cover, when appropriate.
C. A person proposing to create a forest
mitigation bank shall submit to the Department a:
(1) Completed application on a form approved by
the Department which has been signed by an authorized individual in conformance with
COMAR 08.19.04.02I;
(2) Forest mitigation bank plan which contains a:
(a) Vicinity map of the proposed mitigation bank
site;
(b) Simplified forest stand
delineation which meets the criteria in COMAR
08.19.04.02;
(c) Detailed afforestation or reforestation plan,
which shall include a timetable and description of the site and soil preparation
needed, species, size, and spacing to be utilized, prepared by a licensed Maryland
forester, a licensed landscape architect, or a qualified professional who meets the
requirements stated in COMAR
08.19.06.01A;
and
(d) Proposed 2-year maintenance
agreement that:
(i) Sets forth how the areas
afforested or reforested will be maintained to ensure protection and satisfactory
establishment,
(ii) Complies with COMAR
08.19.04.05C(4)(a),
and
(iii) Includes watering and
reinforcement planting provisions if survival falls below required
standards;
(3) Copy
of the deed to the property;
(4) Survey
or other legally sufficient description of the bank site for inclusion in the deeds
of easement, deed restrictions, or covenants;
(5) Title report or other assurance that:
(a) The property is not encumbered by any
covenants or other types of restrictions which would impair the property's use as a
forest mitigation bank; and
(b) There is
legally sufficient access to the forest mitigation bank site which can be used by
the Department and its assignees to inspect the forest mitigation bank;
and
(6) Description of the
system to be used by the person owning and operating the forest mitigation bank to
identify and keep track of which portions of the bank have been debited to meet an
applicant's offsite afforestation or reforestation requirements.
D. The owner of an approved forest mitigation bank
shall enter into an agreement with the Department which contains:
(1) The approved reforestation or afforestation
plan;
(2) The approved system for
marking and tracking which portions of the bank have been debited; and
(3) An acknowledgment that the bank may not debit
any portion of the afforested or reforested land until 2 years of successful growth
has been achieved unless the banker has posted a bond or alternate form of
security.
Article
XI Recommended Tree Species.
11.1
Recommended Tree Species List.
A. Tree species
used for afforestation or reforestation shall be native to the county, when
appropriate, and selected from a list of approved species established by the
Department.
B. The Department shall
adopt a list of tree species to be used for any required afforestation or
reforestation and incorporate it into the (Name of county) County Forest
Conservation Technical Manual.
Article XII Financial Security for Afforestation
and Reforestation.
12.1 Bonding.
A. A person required to conduct afforestation or
reforestation under this article shall furnish financial security 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 the associated maintenance agreement 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 and reforestation; and
(3) Be in a form and of a content approved by the
Department.
B. After one
growing season, the person required to file a bond under § 12.1A of this
article may request reduction of the amount of the bond or other financial security
by submitting a written request to the Department with a justification for reducing
the bond or other financial security amount, including estimated or actual costs to
ensure afforestation or reforestation requirements are met.
C. The Department shall determine whether a lesser
amount is sufficient to cover the cost of afforestation or reforestation, taking
into account the following:
(1) The number of
acres;
(2) The proposed method of
afforestation or reforestation;
(3) The
cost of planting materials or replacement materials;
(4) The cost of maintenance of the afforestation
or reforestation project; and
(5) Other
relevant factors.
D. If,
after two growing seasons, the plantings associated with the afforestation or
reforestation meet or exceed the standards of the (Name of County) County Forest
Conservation Technical Manual, the amount of the cash bond, letter of credit, surety
bond, or other security shall be returned or released.
E. A local forest conservation program may
incorporate the financial security set forth in § 12.1A -D of this article or
in COMAR 08.19.05.01B.
Article XIII
Standards for Protecting Trees from Construction Activities.
13.1 Protection Devices.
A. The County shall adopt standards for the
protection of trees from construction activity.
B. Before cutting, clearing, grading, or
construction begins on a site for which a forest conservation plan is required by
this article, the applicant shall demonstrate to the Department that protective
devices have been established.
Article XIV Variances.
14.1 Procedure.
A. A person may request a variance from this
Ordinance or the requirements of Natural Resources Article, §§5-1601 -5-1612,
Annotated Code of Maryland, if the person demonstrates that enforcement would result
in unwarranted hardship to the person.
B. An applicant for a variance shall:
(1) Describe the special conditions peculiar to
the property which would cause the unwarranted hardship;
(2) Describe how enforcement of these rules will
deprive the applicant of rights commonly enjoyed by others in similar
areas;
(3) Verify that the granting of
the variance will not confer on the applicant a special privilege that would be
denied to other applicants;
(4) Verify
that the variance request is not based on conditions or circumstances which are the
result of actions by the applicant;
(5)
Verify that the request does not arise from a condition relating to land or building
use, either permitted or nonconforming, on a neighboring property; and
(6) Verify that the granting of a variance will
not adversely affect water quality.
C. The Department shall make findings that the
applicant has met the requirements in Subsections A and B of this article before the
Department may grant a variance.
D.
Notice of a request for a variance shall be given to the Department of Natural
Resources within 15 days of receipt of a request for a variance.
E. There is established by this Ordinance the
right and authority of the Department of Natural Resources to initiate or intervene
in an administrative, judicial, or other original proceeding or appeal in the State
concerning an approval of a variance under Natural Resources Article, §§5-1601 -5-1612,
Annotated Code of Maryland, or this Ordinance.
Article XV Penalties.
15.1 Enforcement.
A. Noncompliance Fees.
(1) A person found to be in noncompliance with
this Ordinance, regulations adopted under this Ordinance, the forest conservation
plan, or the associated 2-year maintenance agreement, shall be assessed by the
Department the penalty of 30 cents per square foot of the area found to be in
noncompliance with required forest conservation.
(2) Money collected under Subsection A(1) of this
article shall be deposited in the forest conservation fund as required by Article X
of this Ordinance, and may be used by the Department for purposes related to
implementing this Ordinance.
B. Violation.
(1) In addition to the provisions under Subsection
A of this article, a person who violates a provision of this Ordinance or a
regulation or order adopted or issued under this Ordinance is liable for a penalty
not to exceed $1,000, which may be recovered in a civil action brought by the
Department.
(2) Each day a violation
continues is a separate violation.
C. The Department may seek an injunction requiring
the person to cease violation of this Ordinance and take corrective action to
restore or reforest an area.
D. The
local program may adopt the enforcement provisions under COMAR 08.19.06.03.
E. The local program shall provide to
the Department notice of an enforcement action within 15 days after the commencement
of enforcement by the local program.
Article XVI Annual Report.
16.1 On or before March 1 of each year, the
Department shall submit to the Department of Natural Resources a report which
contains the:
A. Number, location, and type of
projects subject to the provisions of this Ordinance;
B. Amount and location of acres cleared,
conserved, and planted, including any areas located in the 100 year floodplain, in
connection with a development project;
C. Amount of reforestation and afforestation fees
and noncompliance penalties collected and expended, the number of acres for which
the fees were collected, and the number of acres reforested, afforested, or
conserved using the fees;
D. Costs of
implementing the Forest Conservation Program;
E. Location and size of all forest mitigation
banks approved during the past year with a description of the priority areas
afforested or reforested by the bank;
F.
Number of acres debited from each forest mitigation bank since the last annual
report;
G. Forest mitigation banks
inspected since the last annual report;
H. Number, location, and types of violations and
types of enforcement activities conducted; and
I. The size and location of all conserved and
planted forest areas shall be submitted in an electronic geographic information
system or computer aided design format if possible. If not possible, the location
shall be given by Maryland State Plane Grid Coordinates and 8 digit
subwatershed.
Article
XVII
Biennial Review by the Department of Natural
Resources.
17.1 The Department shall submit
the necessary documentation to comply with COMAR 08.19.02.04.
Article XVIII
Effective Date and Subsequent
Amendments.
18.1 This Ordinance is hereby
enacted and becomes effective ________, 20____. This Ordinance may be amended as
required. All amendments to this Ordinance are subject to the approval of the
Department of Natural Resources.
Notes
Regulation .01 amended effective 42:6 Md. R. 511, eff. 3/30/2015; amended effective 46:22 Md. R. 976, eff.
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