Subject
title
Discussion of proposed amendments to Chapter 10.5 of the City Code, the Forest and Tree Preservation Ordinance to ensure compliance with Maryland Senate Bill 526, in addition to minor revisions, as proposed by staff.
end
Department
CPDS - Development Review
Recommendation
Staff recommends the Mayor and Council discuss the proposed amendments to Chapter 10.5 of the City Code and provide direction to staff on the next steps for the proposed amendments.
Change in Law or Policy
The proposed ordinance (Attachment A) would amend the City’s Forest and Tree Preservation Ordinance, codified as Chapter 10.5 of the City Code.
Discussion
Update from the Public Hearing
The Mayor and Council held a public hearing on August 5, 2024. Staff received public comment/testimony (Attachment E) in association with the public hearing. A summary of that testimony is provided below (in bold), along with staff responses.
• Please codify the City Forester as responsible for the FTPO.
o The FTPO is currently administered under the development review section, within Community Planning and Development Services. Staff finds this has streamlined the development review process for applicants, while not sacrificing any subject matter expertise. Responsible staff members within the development review section are industry professionals with related credentials, including backgrounds in arboriculture, landscape architecture, hazardous tree assessment, and forest conservation in the State of Maryland.
• Require more than three trees per lot for single-family homes, and increase the required number with lot size.
o The proposed amendments to the FTPO will require (through the Forest Conservation Manual) qualifying residential lots (teardown/rebuild and major renovations) to meet a minimum lot tree requirement through the submission of a tree save plan. These are developments that are not currently subject to any lot tree requirements.
o Existing lot tree requirements are derived from the subdivision regulations (Article 21) in Chapter 25 (Zoning Ordinance). Staff is proposing to mimic the existing lot tree requirements in Chapter 25, for residential projects that are currently exempt. Existing lots of records that do not require subdivision are not currently subject to lot tree requirements. Staff is seeking to remedy that oversight by adopting lot tree requirements for residential projects that do not involve subdivisions.
• Proposed code revisions lack a complete discussion of “replacement with what”…revision of the FTPO in regard to tree replacement would benefit from prohibiting replacement with invasive non-native trees and requiring (or at least incentivizing) developers and homeowners to plant native and near-native trees.
o The FTPO requires replacement tree plantings to be planted with “similar species”. The FTPO and the Forest Conservation Manual generally group trees as canopy/shade trees, evergreen (large or small), and ornamental/understory trees. In general, applicants are presently required to replace trees that have been removed with trees of similar species. Invasive species are not permitted for planting to meet any requirements of the FTPO. Staff prioritize native species to satisfy the requirements of the FTPO.
• Strengthen the replacement requirements for trees 19” and larger in diameter, including larger diameter replacements.
o Staff finds that the current ratio of removed to replaced trees is sufficient to maintain and support a growing urban tree canopy. Sites are often straddled with various constraints from infrastructure to structures, which limit planting space. Further increasing the ratio of replacement requirements will strain site infrastructure such as stormwater, hardscape, utilities, and more. Urban sites and the constraints that accompany them are particularly challenging, due to the competing goods that must coexist.
o Planting larger caliper replacement trees increase costs while reducing survivability and increasing the time required for surviving trees to establish, possibly due to decreased vigor. Industry professionals have stated that smaller caliper trees may outpace and surpass larger caliper trees in a span of years after planting. This is due to the reduced time for a smaller caliper tree to establish (adequate root-to-shoot ratio) and begin growing. While requiring larger caliper replacements is an option, evidence suggesting the long-term canopy effects is lacking.
• Native vs. Non-Native vs. Invasive Species.
o A theme from the public comment as well as feedback from the Mayor and Council has focused on the use of native and non-native tree species, as well as the distinction between those and invasive species. In response, Community Planning Development Services (CPDS) worked with Recreation and Parks (RPD) to author a memo (Attachment D) that summarizes the topic, as it relates to various forestry requirements in the City.
Additional Feedback
In association with the briefing, Reforest Rockville provided written comments (Attachment E) to the City. Staff have responded to the comments below:
• Update the city tree master plan to prioritize native and near-native trees that will thrive as street trees in our shifting weather patterns.
o CPDS and RPD authored a memo (Attachment D) that discusses and evaluates this topic. In general, staff support the prioritization of native and “near-native trees”, while recognizing the various factors involved in species selection in an urban environment. Ultimately, the Master Street Tree Plan is separate from Chapter 10.5 of the City Code. The Master Street Tree Plan is independently managed by RPD. As such, the proposed amendments to Chapter 10.5 of the City Code do not directly impact the Master Street Tree Plan.
• Continue to support homeowners to plant trees (financially, native tree giveaways, outreach).
o Budget allocations such as this are at the discretion of the Mayor and Council. Those allocations are not associated with Chapter 10.5.
• Protect existing trees, especially mature native trees.
o Staff strongly supports the preservation of mature trees. Staff finds the strengthened standards for both reforestation and significant tree replacement within the proposed amendments will result in the prioritization of tree preservation during the development process.
• Develop a comprehensive plan to address invasive plants in Rockville, especially vines that kill trees.
o Through the application of Chapter 10.5, applicable sites are subject to non-native invasive management plans. Such plans span the duration of the associated warranty and maintenance period (5 years). While the FTPO assists in removing invasives on individual sites, a more comprehensive approach is to develop separate legislation stemming from the City’s Climate Action Plan, which has numerous policies advocating for the education, removal, and maintenance of invasive species.
• Trees before sidewalks! Each square of sidewalk concrete produces 10 gallons of runoff per one inch of rain. With increasingly heavy, punctuated downpours, this is a safety issue as we have seen with flooding in Twinbrook.
o Staff finds this is a topic of competing interests that both deliver community value. Both sidewalks and street trees are valuable assets in any community and further the goals of the City. Staff recommends cases be evaluated on a case-by-case basis. Staff believes that this matter is not something to address with these amendments to Chapter 10.5.
• Developers, require replanting and extended care for trees at the highest level possible.
o Staff fully supports this policy. Staff finds that the proposed amendments will strengthen replanting requirements as previously articulated and continue the ongoing practice of both short and long-term maintenance requirements.
Staff conducted two virtual community forum sessions including a staff presentation and a Q&A session. Discussion and questions included the following topics:
• Appeals process
o Staff articulated that appeals to an approved forest conservation plan may be submitted by any party. Appeals do not stop the approval or permitting process until a decision is rendered.
• Significant tree replacements
o Staff discussed the amendment to require replacement tree plantings for trees removed down to 6” DBH.
• Public Hearing
o Staff summarized the available options for providing public comment to be considered by the Mayor and Council. Options include written comments to staff, as well as testimony at the Public Hearing.
• Past forest conservation plan approvals
o Staff finds that prior forest conservation plan (final) approvals will remain valid. New forest conservation plans that are not yet approved prior to the adoption of the amendments, will be required to comply with any new requirements.
Background
The remainder of this staff report is the same as provided for the August public hearing except for the next steps section.
The proposed amendments are needed to implement recent changes to state law and to implement staff-recommended changes to improve the administration of the Forest and Tree Preservation Ordinance (FTPO) through the removal of non-value-added steps in the process. These amendments will increase tree canopy and are consistent with the City’s historical prioritization of tree preservation and environmental stewardship.
In 2023, the State Legislature passed Senate Bill 526 (SB 526 <https://mgaleg.maryland.gov/2023RS/Chapters_noln/CH_542_sb0526t.pdf>), 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.
The Governor signed House Bill 1511 (HB 1511) into law on May 9, 2024. HB 1511 (HB 1511 <https://mgaleg.maryland.gov/2024RS/bills/hb/hb1511E.pdf>) delayed the implementation date for much of SB 526 from July 1, 2024, to July 1, 2025. HB 1511 also delays the implementation (through MDNR) of regulations to implement SB 526 until July 1, 2026.
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.
Chapter 10.5 of the City Code, the Forest and Tree Preservation Ordinance (FTPO), is the City’s locally adopted (1992) forestry ordinance that facilitates compliance with the FCA. Local programs are authorized to be stricter than the FCA, however, they cannot be less stringent. The City’s FTPO is stricter in several regards:
• Requirement for significant tree replacement,
• Requirement for minimum tree cover,
• Increased reforestation for clearing below the forest conservation threshold, and
• Fee-in-lieu of planting rates exceeding State minimums.
To maintain compliance after the passing of SB 526, the City must amend the FTPO to reconcile with the new legislation.
Staff is proposing additional amendments to the FTPO, primarily to further the action items outlined in the FAST (Faster, Accountable, Smarter, Transparent) initiative (Attachment C), 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 improve the administration of the FTPO, which improves outcomes for the City, applicants, and residents, and supports appropriate development in the City. For a complete review of the proposed amendments to the FTPO, see Attachments A (proposed ordinance) and B (redlined ordinance).
Proposed FTPO Amendments Related to Senate Bill 526
The staff has outlined principal changes to the FCA, enacted through SB 526, via condensed bulleted points below, followed by associated proposed changes to the FTPO.
Exemptions
SB 526 introduced new exemptions from some or all requirements of the FCA, including the following:
• Forest Management,
• Transit-oriented development, as defined under S-7-101 of the Transportation Article, is 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 subject to afforestation requirements).
Proposed FTPO Amendment: Adopting new FCA exemptions.
Reforestation
The change to reforestation requirements is one of the primary aspects of SB 526 to combat deforestation. 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 forests cleared in a PFA
• 1:1 reforestation rate for the clearing of any priority retention areas within a PFA
Proposed FTPO Amendment: Adopting SB 526’s reforestation requirements (Rockville is entirely within a PFA).
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. A local authority must issue written findings and justification for clearing a priority retention area.
• 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
• Forest in urban areas
Proposed FTPO Amendment: Adopting amendments to priority retention areas
Public Notice
• No less than 20 days prior to the approval of a forest conservation plan that authorizes the 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.
Proposed FTPO Amendment: Adopting a public notice requirement for forest conservation plans that propose the clearing of priority retention areas;
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.
Proposed FTPO Amendment: Clarifying the process for judicial review of an approved forest conservation plan.
Other Proposed FTPO 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
• “Code administrator” will be introduced as an individual designated by the city manager, given the authority to administer the FTPO. In practice, the FTPO has been administered through the Community Planning and Development Services Department for several years now.
• “Covered approval” 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 disturbance 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.
Current replacement requirements allow trees below 12” in diameter at breast height (DBH) to be removed without replacement. This results in the removal of valuable trees without replacement.
Staff is proposing to amend this standard to require replacement plantings for trees removed at 6” DBH or greater with one new tree required per each tree removed. Trees of this size are important from an arboricultural standpoint because of their expected lifespan and future canopy. This will result in a significant increase in onsite replacement trees planted during the development process. Replacement trees are also subject to long-term preservation requirements under the FTPO.
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 planting trees within the public right-of-way.
• Park Maintenance Fund
o This fund is used to install/maintain 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 within the 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.
Consistency with Faster, Accountable, Smarter, and Transparent (FAST) Initiative
Staff finds the additional amendments to the FTPO are consistent with the FAST charter (Attachment C) 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 a 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 weaken forestry 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. It does not follow the traditional path of a zoning text amendment, which the Mayor and Council may find familiar. Rather, as an independent chapter of the City Code, the FTPO only requires introduction and adoption by the Mayor and Council.
Mayor and Council History
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.
Staff briefed the Mayor and Council on the proposed amendments to the FTPO on May 6, 2024. The Mayor and Council introduced the amendments on that evening. The Mayor and Council instructed staff to return for a public hearing to garner public input.
At the briefing, the Mayor and Council inquired about the use of native and non-native tree species throughout the City. In response to that inquiry, Community Planning Development Services (CPDS) worked with Recreation and Parks (RPD) to author a memo (Attachment D) that summarizes the topic, as it relates to various forestry requirements in the City.
The Mayor and Council held the requested public hearing on August 5th and public feedback was received both at the meeting and in writing as previously discussed (summarized at the beginning of the report).
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
• Briefing to the Mayor and Council
• Public Hearing at the Mayor and Council
• Briefing to the Environment Commission
• Briefing to the Park Advisory Board
• E-mail notification to City Homeowners Associations
o Including an opportunity for feedback and discussion
• Virtual community forum sessions
o Staff conducted two virtual community forum sessions including a staff presentation and a Q&A session. The first session was held on the evening of May 2, 2024, at 7:00 PM. The second session was held on the evening of May 29, 2024, at 7:00 PM. All interested parties were welcome to attend either (or both) sessions.
§ A total of seven (7) members of the public attended the virtual sessions.
• Written notice
o At the briefing to the Mayor and Council on May 6, staff were instructed to provide written notice to property owners that may be particularly affected by the proposed amendments. Staff provided written notice of the public hearing to large, forested (partially and totally) properties within the City. Notices were sent more than 2-weeks in advance of the public hearing.
• Newspaper notice
o Newspaper notice was provided in advance of the public hearing in accordance with City standards.
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 further 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 ½:1 reforestation ratio (1/2 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.
o Staff notes that a combination of various maps available on the City’s webpage could assist applicants in determining if their property may contain stream buffers.
• 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 Similar to 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 are not 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
o Staff articulated that a gradual loss of forest observed at the State level was the primary focus for SB 526.
• Solar and Trees
o The commission inquired how the proposed amendments to the FTPO consider the balance between solar technology and the need for trees.
§ Staff explained that SB 526 has an exemption for solar photovoltaic facilities, which have yet to be defined by the State. Staff expect a definition to focus primarily on energy-generating facilities or farms.
• Maintain a simple, transparent process for the removal of dead, dying, and hazardous trees.
o Staff explained that nothing within the proposed amendments would complicate the process for individual tree removal based on qualifying criteria.
• The City’s status as a Tree City USA
o Staff recognize the importance the City has placed on tree canopy within the City over the years. Staff find the proposed amendments will continue that tradition of environmental stewardship.
• Current reforestation practices
o Staff articulated the current reforestation practices under the presently adopted FTPO.
• Proposed reforestation practices
o Staff articulated the proposed reforestation practices under SB 526 and how they will be implemented through the FTPO (as outlined in the report).
• Priority Funding Areas
o Staff discussed the basis for a priority funding area, as designated by the State Finance and Procurement Articles.
Park Advisory Board
Staff briefed the Park Advisory Board on the proposed amendments to Chapter 10.5 at their meeting on May 22, 2024. The members of the Board had general inquiries about the nature of the amendments to Chapter 10.5 as well as SB 526.
The Board inquired about the need to amend the fee-in-lieu funds (forest conservation fund and park maintenance fund) to ensure the Recreation and Parks Department has sufficient funding allocated towards planting and maintaining City street trees. Staff explained the purpose of the two funds, and the authorized uses of monies within each fund, per the current language in Chapter 10.5, below:
The current language (above) limits the use of resources in the park maintenance fund. After collaboration with RPD, staff are recommending new language that will permit the use of park maintenance funds for the planting of public street trees. This will provide RPD flexibility within the fund, resulting in the effective management of those funds to meet the City’s needs.
Next Steps
Following the Mayor and Council introducing the amendments to Chapter 10.5 on May 6, 2024, staff were instructed to schedule a public hearing before the body. The public hearing was held on August 5, 2024. The body instructed staff to keep the public record open until September 9, 2024, and return for discussion and instructions.
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 to ensure it is consistent 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.