Subject
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Introduction of an ordinance to amend Chapter 10.5 of the Rockville City Code, entitled “Forest and Tree Preservation,” to bring the chapter into conformance with current State law and make various modifications to improve the administration of the chapter
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Department
CPDS - Development Review
Recommendation
Staff recommends the Mayor and Council introduce the proposed ordinance to amend Chapter 10.5 of the City Code and, after introduction, vote to instruct staff to hold a public hearing on the introduced ordinance at a future meeting.
Change in Law or Policy
The proposed ordinance (Attachment A) would amend the City’s Forest and Tree Preservation Ordinance (FTPO), codified as Chapter 10.5 of the City Code.
Discussion
Background
The proposed ordinance is needed to implement recent changes to state law and to implement staff-recommended changes to improve the administration of the FTPO through the removal of non-valued added steps in the process. These changes also increase tree canopy and are consistent with the City’s goals for tree preservation and reforestation.
In 2023, the State Legislature passed Senate Bill 526 (SB 526, Attachment D), also known as the Forest Preservation and Retention Act, to amend parts of the State Natural Resource Articles 5-1601 through 5-1613, also known as the Maryland Forest Conservation Act (FCA), enacted in 1991.
SB 526 was passed in an ongoing effort to reduce the gradual loss of forest and tree canopy observed in the State, since the original passage of the FCA in 1991. SB 526 instituted a variety of changes that are intended to increase forest and tree canopy at a statewide level (to be measured every four years) through:
• Increased reforestation requirements,
• Expanded priority retention areas, and
• Public notice requirement for the removal of priority retention areas.
SB 526 provides flexibility for certain types of development and priority funding areas (PFA’s), per the State Finance and Procurement Article S-5-7B-08. According to the Maryland Department of Planning, “PFA's are existing communities and places designated by local governments indicating where they want state investment to support future growth.” The entire corporate limits of the City are located within a PFA. SB 526 requires any local forest conservation program to afford due consideration to the policy goals established under the State Finance and Procurement Article S-5-7B-08 and the Land Use Article S-1-4 and S-3.
Chapter 10.5 of the City Code, also known as the Forest and Tree Preservation Ordinance, is the City’s locally adopted (1992) forestry ordinance that facilitates compliance with the FCA. To maintain compliance after the passing of SB 526, the City must amend the FTPO to reconcile with the new legislation.
Staff is also proposing additional amendments to the FTPO, primarily to further the action items outlined in the FAST (Faster, Accountable, Smarter, Transparent) initiative, endorsed by the Mayor and Council in 2018. Staff finds that these minor amendments deliver effective forest conservation policies, such as increasing existing tree replacement requirements, and increasing available funds for street tree plantings. These amendments also improve the administration of the FTPO, which improves outcomes for the City and applicants, in support of appropriate development in the City. For a complete review of the proposed amendments to FTPO, see Attachments A and B.
This report provides an overview of SB 526 and the proposed amendments to the FTPO necessary to comply with the new law, in addition to detailing other proposed FTPO amendments as outlined in FAST. Attachment C is a copy of the currently adopted version of the FTPO, for reference. Finally, the process for amending the FTPO is provided.
Senate Bill 526
To understand the scope of changes proposed to the FTPO, it is necessary to understand the content of SB 526. The Maryland Department of Natural Resources (MDNR) facilitated an informational session (on the legislation) with local municipalities in early 2024 to review the changes. For the full presentation from MDNR, including an outline of SB 526, see Attachment E.
Staff has outlined principal changes to the FCA, enacted through SB 526, via condensed bulleted points below. For the full text, see Attachment F.
Exemptions
SB 526 introduced several new exemptions from the FCA, or requirements of it, including the following:
• Forest Management,
• Transit-oriented development, as defined under S-7-101 of the Transportation Article, subject to conditions,
• The construction of a new federal government facility projected to house the employment of at least 2,500 people,
• The construction of multifamily housing, consisting of a single structure containing at least 25 dwelling units, subject to conditions, and
• Solar photovoltaic facilities (not be subject to afforestation requirements).
Reforestation
The change to reforestation requirements is one of the primary aspects of SB 526. Previously, the FCA allowed any forest cleared above the forest conservation threshold to be reforested at a rate of ¼ acre planted for every acre removed.
SB 526 eliminates that standard and requires the following minimum reforestation rates:
• 1:1 reforestation rate for all forests cleared outside of PFA’s
• ½:1 reforestation rate for all forest cleared in a PFA
• 1:1 reforestation rate for the clearing of any priority retention areas within a PFA
• After satisfying afforestation and reforestation requirements, any unforested riparian buffers onsite must be forested, unless:
o Doing so would be in conflict with the allowable uses within the riparian buffer;
o The area is located on park property and doing so conflicts with the mission and stewardship practices of the established park; or
o The area is not suitable for the establishment and retention of the required planting materials, in which case substitute environmental protection measures must be implemented.
Priority Retention Areas
SB 526 expands the criteria that qualify certain areas as priorities for retention. The following are considered priority retention areas and must be left in an undisturbed condition unless the applicant demonstrates to the local authority that reasonable efforts have been made to protect them and the plan cannot be reasonably altered.
• Intermittent streams and their buffers at least 50 feet from the stream channel.
• Perennial streams and their buffers at least 100 feet from the stream channel
• Forest suitable for forest interior-dwelling species
• Forest located in a tier II or tier III high-quality watershed as identified by the Department of the Environment
• Forest located in a water resource protection zone, a reservoir watershed, or a wellhead protection area
• Forests in urban areas
o As delineated in the priority urban forest mapping included in the State Forest Conservation Technical Manual requirements or;
o That are most important for providing wildlife habitat or mitigating flooding, high temperatures, or air pollution.
A local authority must issue written findings and justification for any clearing of a priority retention area.
Public Notice
SB 526 introduced public notification requirements prior to the approval of qualifying forest conservation plans.
• No less than 20 days prior to the approval of a forest conservation plan that authorizes clearing of priority retention areas, public notice must be provided to all abutting and adjacent property owners.
• On properties at least five (5) acres in size that propose the clearing of at least 75% of a priority retention area, an opportunity must be granted for both written and verbal comment prior to plan approval. On all other properties that propose the clearing of a priority retention area, an opportunity must be granted for written comment prior to plan approval.
Judicial Review
SB 526 outlines the ability to petition for a judicial review of an approved forest conservation plan, approved within the last 30 days. A judicial review must be conducted in accordance with Maryland Rules, and limited to the record compiled by the local authority.
Other
The Maryland Department of Natural Resources (MDNR) shall update the State Forest Conservation Technical Manual on or before December 31, 2024, for consistency with SB 526.
Sections 1, 2, and 3 of SB 526 shall take effect on July 1, 2024. As such, local ordinances must be adopted by July 1, 2024.
Chapter 10.5 of the City Code - The Forest and Tree Preservation Ordinance
Overview
The FTPO was adopted in 1992 in response to the State’s enactment of the FCA. The FTPO is the City’s local ordinance to ensure compliance with the FCA. In general, local programs are authorized to be stricter than the FCA on requirements, however, they cannot be less stringent. The City’s FTPO is stricter in several areas, including but not limited to the following:
• Established requirements for significant tree replacement,
• Established thresholds for minimum tree cover,
• Increased reforestation requirements for clearing below the forest conservation threshold, and
• Fee-in-lieu of planting rates exceeding State minimums.
Proposed Amendments Related to SB 526
These revisions will ensure compliance with the various elements contained in SB 526 as described above. These revisions include:
• Adopting new FCA exemptions;
• Adopting a public notice requirement for forest conservation plans that propose the clearing of priority retention areas;
• Clarifying the process for judicial review of an approved forest conservation plan;
• Adopting SB 526’s reforestation requirements (Rockville is entirely within a PFA, so a reforestation rate of ½ acres planted for each acre removed applies, outside of priority retention areas); and
• Adopting amendments to priority retention areas (adopted the expanded qualifying areas, as well as requiring the City to issue written findings for the approved clearing of any qualifying areas).
Other Amendments
In addition to the proposed changes to maintain compliance with SB 526, staff is proposing amendments to the FTPO to improve the administration of the code, while maintaining the City’s requirements to increase tree canopy.
Defined Terms
• To accurately reflect the current administration of the FTPO, the “code administrator” will be introduced as an individual designated by the city manager, given the authority to administer the FTPO. The FTPO currently identifies the city forester in that role. In practice, the FTPO has been administered through the Community Planning and Development Services Department for several years now, thus rendering the previous designation inaccurate.
• “Covered approval” or a similar term is proposed to functionally replace a “covered permit” and “covered activity”. The new term is intended to incorporate all elements of both terms.
• The definition of “street tree” will be expanded to include trees planted within private roads. This is intended to close a loophole that unintentionally incentivized the creation of private streets by allowing increased onsite planting credit.
• “Single dwelling unit residential lot” is proposed to be replaced with “single dwelling unit”. The definition will encompass vacant lots. This will allow the improvement of a vacant lot with a dwelling unit via a simplified tree save plan in lieu of a Forest Stand Delineation, Forest Conservation Plan, and associated legal documents.
Previously Enacted FCA Exemptions
Staff is proposing to adopt exemptions that currently exist within the FCA.
• For the cutting or clearing of public utility rights-of-way for electric generating facilities, subject to criteria and conditions;
• For routine maintenance of public utility rights-of-way;
• For stream restoration projects, subject to criteria and conditions; and
• For the maintenance or retrofitting of a stormwater management structure, subject to criteria and conditions.
New Exemption
Staff is proposing an exemption from Natural Resource Inventory and Forest Stand Delineation (NRI/FSD) for applications of the site plan, project plan, or amendments thereto that do not require a sediment control permit or impact the critical root zones of any significant trees. This is intended to eliminate the need for an NRI/FSD in the event of an application that proposes no significant disturbance and does not impact any significant trees.
An example of such a scenario is a change of use for an existing building that requires a site plan amendment, with no proposed exterior disturbance (therefore no sediment control permit or impacts to trees).
Significant Tree Replacement
Staff is proposing to amend the significant tree replacement requirements within the FTPO. The current requirements are in the table below.
The current replacement requirements allow trees below 12” in diameter at breast height (DBH) to be removed without replacement requirements. Staff has found this results in the removal of valuable trees that provide significant canopy within the City.
Based on this, the staff is proposing to amend this standard to require replacement plantings for trees removed at 6” DBH or greater. Trees of this size are important from an arboricultural standpoint because of their maturity and expected lifespan. This will result in a significant increase in onsite replacement trees planted during the development process and an increase in tree canopy. Replacement trees are also subject to long-term preservation requirements under the FTPO.
While contiguous stands of undisturbed forest are not vastly seen in Rockville, individual significant trees play a valuable role in making up the City’s tree canopy. As such, staff finds this amendment is necessary to ensure the City tree canopy is increased.
Fee-in-lieu Funds
The FTPO currently requires fee-in-lieu of planting payments to be deposited into two separate funds. Both Funds are managed by the Recreation and Parks Department.
• Forest Conservation Fund
o This fund has historically been utilized for the planting of trees within the public right-of-way.
• Park Maintenance Fund
o This fund is used to install and replace trees, shrubbery, and landscaping on City Parkland.
Staff is proposing to expand the language regarding the use of funds in the park maintenance fund to include the planting of trees with public right-of-way. This will allow the City greater flexibility with the use of fee-in-lieu funds while continuing to ensure that the funds are used to plant trees as intended.
Consistency with Faster, Accountable, Smarter, and Transparent (FAST)
Staff finds the additional amendments to the FTPO are consistent with the FAST charter that was endorsed by the Mayor and Council in 2018. The FAST action items related to the FTPO are summarized below.
• Continue to encourage the protection of trees on lots and replace the Natural Resource Inventory and Forest Stand Delineation requirements with simplified Single-Family Home Tree Survey if confirmed as needed by city staff - FASTER & SMARTER
• While encouraging the retention of existing trees, require a minimum of three trees per lot for all new detached single-family homes, both on vacant lots and teardown/rebuilds - FASTER & SMARTER
• For minor alterations, a Natural Resource Inventory and Forest Stand Delineation shall not be required - FASTER & SMARTER
• For Site Plans and Site Plan Amendments, establish independent requirements for when an NRI/FSD is required - FASTER & SMARTER
• Deduct the area of right-of-way dedicated to the city from the total tract area to adjust Minimum Tree Cover requirements - SMARTER
As stated previously, these changes do not reduce tree requirements; they streamline the review and approval process by eliminating non-value-added steps.
Amendment Process
The FTPO is not a component of the City’s Zoning Ordinance. As such, it does not follow the traditional path of a zoning text amendment, which the Mayor and Council may find familiar. Rather, the FTPO, as an independent chapter of the City Code, only requires introduction and adoption by the Mayor and Council. As a measure of good practice, staff briefed the Planning Commission on the proposed amendments on March 27, 2024, and proposed the additional notification, engagement, and board and commission review as described below.
Given the scope of the proposed amendments to Chapter 10.5, Staff also recommends the Mayor and Council vote to hold a public hearing on the proposed ordinance, after it is introduced.
Mayor and Council History
The proposed amendments have not been before the Mayor and Council previously. Amendments to Chapter 10.5 of the City Code were last adopted on July 16, 2007. Staff finds those amendments do not have any relevance to the amendments currently proposed.
Public Notification and Engagement
In addition to posting this item on the Mayor and Council’s agenda, Staff has performed public outreach via the following:
• City’s Development Watch Newsletter
• Rockville Reports
• E-mail notification to City Homeowners Associations
o Including an opportunity for feedback and discussion.
Staff have scheduled two virtual community forum sessions for staff presentation and a Q&A session. The first session will be held on the evening of May 2, 2024, at 7:00 PM. The second session will be held on the evening of May 29, 2024, at 7:00 PM. All individuals are welcome to attend either session.
• The first forum is intended for a more technical discussion and may be best suited for industry professionals such as developers, landscape architects, qualified preparers, or individuals with a background in forestry.
• The second forum is intended for the broader community and will focus more on the background and context behind the forestry requirements in the State and City.
Should the Mayor and Council instruct staff to schedule a public hearing (consistent with staff recommendation), public notice will be provided in accordance with City requirements.
Boards and Commissions Review
Planning Commission
While not required by City code, staff briefed the Planning Commission on the proposed amendments to the FTPO on March 27, 2024. Commissioners discussed the proposed amendments, with interest and questions on the following topics:
• Why is the definition of street tree being revised?
o By expanding the current definition of street trees to include trees planted within private roads, developers would be subject to the same limitations on forest conservation credit for private street tree plantings that currently exist for street trees planted in the public right of way. Staff find this solution will close an unintentional loophole that encouraged the development of private roads, contrary to best practice.
• Why expand significant trees down to 6” DBH?
o By expanding the definition of significant trees to include trees within the limits of disturbance down to 6” DBH, developers will be required to replace such trees at a 1:1 ratio, resulting in a more sustainable practice.
• How will the revised reforestation requirements be implemented?
o Staff articulated the new reforestation requirements within SB 526 and how they will impact the FTPO. As a PFA, the City of Rockville will be subject to a .5:1 reforestation ratio (.5 acres planted for every 1 acre removed).
o Staff is proposing to maintain the current reforestation rate in the FTPO for clearing below the forest conservation threshold, which is 3:1 (3 acres planted for every 1 acre removed).
o Reforestation within the City occurs on the subject property/s under development. In the event reforestation cannot be achieved on-site, the applicant may submit justification for a fee-in-lieu payment, subject to staff review, per the criteria in Chapter 10.5-24.
• Is detailed mapping depicting properties affected by stream buffers available to applicants?
o While priority retention areas are expanded to include stream buffers, it has long been the practice of the city, consistent with the Environmental Guidelines, to place a priority on the preservation of such environmentally sensitive areas.
o Staff is unaware of any mapping that specifically outlines potential stream buffers. Staff will consider this need in the development of future resources for applicants.
• Will the minimum lot tree requirement consider smaller lots?
o The proposed lot tree requirement will subject new single dwelling units as well as single dwelling units undergoing a major renovation that disturbs more than 50% of the floor area to a minimum lot tree requirement, which will be further articulated in the Forest Conservation Manual.
o Like the lot tree requirement in Chapter 25.21.21 of the Zoning Ordinance, staff anticipates taking the size of the subject lot into account when applying a minimum requirement.
• Does staff anticipate an increase in requests for waivers due to proposed amendments?
o Staff does not anticipate any increase in requests for waivers from the provisions of the FTPO. Traditional waivers aren’t available to the requirements of the FTPO.
• Has staff considered creating a single fund for fee-in-lieu payments?
o Staff is currently proposing to maintain two funds (the forest conservation fund and the park maintenance fund) for fee-in-lieu payments. While a single combined fund may be an option, staff seeks to amend this process as little as possible, with the underlying intent being to increase flexibility between funds to increase the resources available for street tree plantings in the city.
Environment Commission
Staff attended the City’s Environment Commission meeting on March 7, 2024. Staff provided a presentation outlining SB 526 as well as the anticipated amendments to the FTPO.
The presentation resulted in a productive discussion on a variety of topics that will be taken under advisement as staff finalizes a draft amendment of the FTPO. Such topics included but were not limited to the following:
• Backstory to SB 526
• Solar and Trees
• Maintain a simple, transparent process for the removal of dead, dying, and hazardous trees
• The City’s status as a Tree City USA
• Current reforestation practices
• Proposed reforestation practices
• Priority Funding Areas
Recreation and Park Advisory Board
Staff is scheduled to provide a briefing to the Recreation and Park Advisory Board.
Fiscal Impact
Staff does not anticipate any fiscal impact, should the Mayor and Council choose to proceed with the proposed amendments to Chapter 10.5
Next Steps
After introduction of the attached ordinance, staff will hold a public hearing, if directed by the Mayor and Council, on the introduced ordinance at a future meeting to facilitate feedback from the community. Staff would provide public notice for the public hearing consistent with Article II, Section 2 of the City Charter. Staff will then bring the ordinance to the Mayor and Council for discussion and instruction.
After discussion and instruction, staff will submit the ordinance to the State Department of Natural Resources (MDNR) for its review, consistent with Section 5-1603 of the Natural Resources Article. MDNR will review the ordinance for consistency with State law. After MDNR has confirmed the ordinance is acceptable, as drafted, or with revisions, staff will bring the ordinance back to the Mayor and Council, for adoption.