[HISTORY: Adopted by the Town Council of the Town of Denton 4-1-2021 by Ord. No. 711.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 60,
Forest Conservation, adopted 3-7-2011 by Ord. No. 621.
A.Â
Title. This chapter shall be known as the "Denton Forest Conservation
Ordinance."
B.Â
Legislative authority. This chapter is established as mandated by
State of Maryland Natural Resources Article, §§ 5-1601
through 5-1612, of the Annotated Code of Maryland.
C.Â
Jurisdiction. The provisions of this chapter shall apply to the incorporated
territory of Denton, Maryland.
D.Â
Purpose and intent.
(1)Â
The Town Council of Denton has determined that to meet the requirements
of Natural Resources Article, §§ 5-1601 through 5-1612,
of the Annotated Code of Maryland, the provisions of this chapter
must be enacted.
(2)Â
The purpose of this chapter, as stated by the Department of Natural
Resources, is to prohibit certain development projects from cutting
or clearing certain forests within the community unless a forest stand
delineation and a forest conservation plan are in effect.
E.Â
Conflict with other regulations. Should this chapter be found to
conflict with any other regulation or chapter for the Town of Denton,
the more restrictive of the two shall be deemed to control.
F.Â
Compliance with this chapter. All projects that ultimately require
the approval of subdivision, erosion control, or grading must comply
with this Denton Forest Conservation Ordinance's requirements.
A.Â
Word usage. The following rules shall apply to this chapter:
(1)Â
The words "shall" and "will" are mandatory.
(2)Â
Unless the context otherwise specifies, words used in the present
tense shall include the future; words used in the singular number
include the plural, and words in the plural number include the singular.
(3)Â
The word "person" includes an individual, a corporation, a partnership,
an incorporated association, or any other similar entity.
(4)Â
The phrase "used for" includes "arranged for," "designed for," "intended
for," "maintained for," or "occupied for."
(5)Â
Unless the context indicates the contrary, where a regulation involves
two or more items, conditions, provisions, or events connected by
the conjunction "and," "or," or "either/or," the conjunction shall
be interpreted as follows:
(a)Â
"And" indicates that all the connected items, conditions, provisions,
or events shall apply.
(b)Â
"Or" indicates that the connected items, conditions, provisions,
or events may apply separately or in combination.
(c)Â
"Either/or" indicates that the connected items, conditions,
provisions, or events shall apply separately but not in combination.
(6)Â
The word "includes" shall not limit a term to the specified examples
but is intended to extend its meaning to all other instances or circumstances
of like-kind or character.
(7)Â
Words and terms not defined herein shall be interpreted following
their standard dictionary meaning.
B.Â
100-YEAR FLOOD
100-YEAR FLOODPLAIN
AFFORESTATION
(1)Â
(2)Â
(3)Â
AGRICULTURAL ACTIVITY
AGRICULTURAL AND RESOURCE AREAS
APPLICANT
APPROVED FOREST MANAGEMENT PLAN
BOARD OF APPEALS
CALIPER
CHAMPION TREE
COMMERCIAL AND INDUSTRIAL USES
COMMERCIAL LOGGING OR TIMBER HARVESTING OPERATIONS
CRITICAL HABITAT AREA
(1)Â
(2)Â
(3)Â
CRITICAL HABITAT FOR ENDANGERED SPECIES
DECLARATION OF INTENT
(1)Â
(a)Â
(b)Â
(c)Â
(2)Â
DEPARTMENT
DEPARTMENT OF NATURAL RESOURCE (DNR)
DEVELOPMENT PROJECT
DEVELOPMENT PROJECT COMPLETION
DIRECTOR OF PLANNING
FOREST
FOREST CONSERVANCY DISTRICT BOARD
FOREST CONSERVATION
FOREST CONSERVATION AND MANAGEMENT AGREEMENT
FOREST CONSERVATION PLAN
FOREST CONSERVATION TECHNICAL MANUAL
FOREST COVER
FOREST MANAGEMENT PLAN
FOREST MITIGATION BANK
FOREST MITIGATION BANK AGREEMENT
FOREST MITIGATION BANK PLAN
FOREST STAND DELINEATION
GROWING SEASON
HIGH-DENSITY RESIDENTIAL AREAS
INSTITUTIONAL DEVELOPMENT AREA
INTERMITTENT STREAM
LANDSCAPING PLAN
LINEAR PROJECT
(1)Â
(2)Â
(3)Â
LOCAL AGENCY
LOT
MAINTENANCE AGREEMENT
MEDIUM-DENSITY RESIDENTIAL AREAS
MINOR DEVELOPMENT PROJECT
MIXED-USE DEVELOPMENT
NATURAL REGENERATION
NET TRACT AREA
(1)Â
(2)Â
(3)Â
NONTIDAL WETLANDS
(1)Â
(2)Â
(3)Â
OFF-SITE
ON-SITE
PERENNIAL STREAM
PERSON
PLANNED UNIT DEVELOPMENT
PRIORITY FUNDING AREA
PROJECT PLAN
PUBLIC UTILITY
REFORESTATION OR REFORESTED
(1)Â
(a)Â
(b)Â
(2)Â
(3)Â
REGULATED ACTIVITY
RETENTION
SEDIMENT CONTROL PERMIT
SEEDLING
SELECTIVE CLEARING
STREAM BUFFER
STREAM RESTORATION PROJECT
(1)Â
(2)Â
(3)Â
(4)Â
SUBDIVISION
TIMBER HARVESTING
TRACT
TRACT FOR A PLANNED UNIT DEVELOPMENT
TREE
VARIANCE
WATERSHED
WHIP
Terms defined. In this chapter, the following terms have the meanings
indicated:
A flood that has a 1% chance of being equaled 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.
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. For this chapter,
the 100-year floodplain boundaries coincide with those identified
on the Flood Insurance Rate Map (FIRM), most recently published by
the Federal Emergency Management Agency (FEMA).
Establishment of a biological community dominated by trees on
an area from which forest cover has been absent for a long period
of time; or
Planting of open areas which are not presently in forest cover,
including streetscapes, landscape buffers, and areas indicated in
the Comprehensive Plan for planting; or
Establishment of a forest according to procedures outlined in
the State Forest Conservation Technical Manual.
Farming activities, including plowing, tillage, cropping,
installation of best management practices, seeding, cultivating, and
harvesting for the 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.
Undeveloped areas zoned for densities of less than or equal
to one dwelling unit per five or one dwelling unit and farm caretaker
dwelling unit per 20 acres.
A person applying for subdivision or project plan approval
or a grading or sediment control permit, or who has received the approval
of a forest stand delineation or forest conservation plan.
A document:
The Board of Appeals of the Town of Denton, as established
in the Denton Zoning Ordinance.
The diameter measured at two inches above the root collar.
The largest tree of its species within the United States,
the state, county, or town.
Manufacturing operations, office complexes, shopping centers,
and other similar uses and their associated storage areas, yarding,
and parking areas and corresponds to the Denton Zoning Ordinance district
classifications GC, CBC, CM, RHC, I, and MI.
Cutting and removing of tree stems from a site for commercial
purposes, leaving the root mass intact.
Critical habitat for an endangered species and its surrounding
protection area. A critical habitat area shall:
Be likely to contribute to the long-term survival of the species;
Be likely to be occupied by the species for the foreseeable
future; and
Constitute habitat of the species, which is considered critical
under Natural Resources Article, §§ 4-2A-04, and 10-2A-06,
Annotated Code of Maryland.
A habitat occupied by an endangered species as determined
or listed under Natural Resources Article, §§ 4-2A-04,
and 10-2A-04, Annotated Code of Maryland.
A signed and notarized statement by a landowner or the landowner's
agent certifying that the activity on the landowner's property:
Is for certain activities exempted under this chapter or Natural
Resources Article, §§ 5-103 and 5-1601 through 5-1612,
Annotated Code of Maryland;
Does not circumvent the requirements of this chapter or Natural
Resources Article, §§ 5-103 and 5-1601 through 5-1612,
Annotated Code of Maryland; and
Does not conflict with the purposes of any other declaration
of intent; or
The document required under COMAR 08.19.01.05 or this chapter.
The Denton Department of Planning and Codes Administration.
A Maryland government agency that is charged with maintaining
natural resources.
The grading or construction activities occurring on a specific
tract that is 40,000 square feet or greater in disturbance. "Development
project" includes redevelopment.
For the purposes of afforestation, reforestation, or payment
into a fund:
Director of Planning and Codes Administration.
A biological community dominated by trees and other woody
plants covering a land area of 10,000 square feet or greater. "Forest"
includes areas that have at least 100 live trees per acre with at
least 50% of those trees having a two-inch or greater diameter at
4.5 feet above the ground and larger; and areas that have been cut
but not cleared. "Forest" does not include orchards.
The Forestry Board created for each state forestry conservancy
district under Natural Resources Article, §§ 5-601
through 5-610, Annotated Code of Maryland.
The retention of existing forest or the creation of new forest
at the levels set by the Town.
An agreement, as stated in the Tax-Property Article, § 8-211,
Annotated Code of Maryland.
A plan approved pursuant to Natural Resources Article, §§ 5-1606
and 5-1607, Annotated Code of Maryland.
The State Forest Conservation Technical Manual is hereby
incorporated by reference and used to assist the Department in establishing
standards for preparing forest stand delineations and forest conservation
plans.
The area of a site meeting the definition of "forest."
A plan establishing best conservation and management practices
for a landowner in assessing forested property's resource values.
An area of land which has been intentionally afforested or
reforested for the express purpose of providing credits for reforestation
requirements.
An agreement entered into by an individual owning a forest
mitigation bank and the Town which commits the banker to certain procedures
and requirements when creating and operating the forest mitigation
bank.
A plan submitted for approval of a forest mitigation bank
to the Town by an individual proposing to establish a forest mitigation
bank.
The methodology for evaluating the existing vegetation on
a site proposed for development, as provided in the State Forest Conservation
Technical Manual.
The period of consecutive frost-free days, as stated in the
current soil survey for Caroline County and published by the National
Cooperative Soil Survey Program, 16 U.S.C. § 590(a) –
(f).
Areas zoned for densities greater than one dwelling unit
per acre, including both existing and planned development and their
associated infrastructures, such as roads, utilities, and water and
sewer service. These areas correspond to the Denton Zoning Ordinance
district classifications for all residential zones except the Agriculture
District and all properties located in the Resource Conservation Area.
Schools, colleges and universities, military installations,
transportation facilities, utility and sewer projects, government
offices and facilities, golf courses, recreation areas, parks, and
cemeteries.
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.
A plan:
A project which:
Is elongated with nearly parallel sides;
Is used to transport a utility product or public service not
otherwise contained in an application for a subdivision, such as electricity,
gas, water, sewer, communications, trains, and vehicles; and
May traverse fee simple properties through defined boundaries
or established easement rights.
Each unit in the executive, legislative, or judicial branch
of the Town of Denton government, including all agencies and departments
authorized to conduct each unit's business.
A unit of land, the boundaries of which have been established
as a result of a deed or previous 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 chapter without an approved forest stand delineation
and forest conservation plan.
The short-term management agreement associated with afforestation
or reforestation plans required under Natural Resources Article, § 5-1605,
Annotated Code of Maryland, and this chapter.
Areas zoned for densities greater than one dwelling unit
per five acres and less than or equal to one dwelling unit per acre,
including both existing and planned development and their associated
infrastructure, such as roads, utilities, and water and sewer service.
A single, relatively high-density development project, usually
commercial that includes two or more uses.
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.
Except in agriculture and resource areas, the total area of
a site, including both forested and non-forested areas, to the nearest
1/10 acre, reduced by that area where forest clearing is restricted
by another local chapter, program, or within the boundaries of the
100-year floodplain and/or critical areas.
In agriculture and resource areas, the part of the total tract
for which land use will be changed or will no longer be used primarily
for agricultural activities, reduced by that area where forest clearing
is restricted by another local chapter or program, or within the boundaries
of the 100-year floodplain and/or critical areas; and
For a linear project, the area of a right-of-way width, new
access roads, and storage; or the limits of disturbance as shown on
an application for sediment and erosion control approval or in a capital
improvements program's project description.
An area that is 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
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.
"Nontidal wetlands" does not include tidal wetlands regulated
under Natural Resources Article, Title 9, Annotated Code of Maryland.
Outside of the limits of the area encompassed by the tract.
Within the limits of the area encompassed by the tract, including
an area classified as a 100-year floodplain.
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.
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.
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 the
Town of Denton with at least 20% of the land permanently dedicated
to open space.
An area designated as a priority funding area under State
Finance and Procurement Article, § 5-7b-02, Annotated Code
of Maryland.
A construction, grading, or sediment control activity on
an area of 40,000 square feet or greater by a local agency.
Any transmission line or electric generating station; or
water, sewer, electric, gas, telephone, or television cable service
line.
"Reforestation" or "reforested" means the:
Creation of a biological community dominated by trees and other
woody plants containing at least 100 live trees per acre with at least
50% of those trees having the potential of attaining a two-inch or
greater diameter measured at 4.5 feet above the ground, within seven
years; or
Establishment of a forest according to procedures outlined in
the State Forest Conservation Technical Manual.
"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.
"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.
Any of the following activities, when that activity occurs
on a unit of land which is 40,000 square feet or greater:
The deliberate holding and protecting of existing trees,
shrubs, or plants on the site as determined by the Town using this
chapter as a reference tool.
The authorization of an activity regulated under a sediment
control plan as provided in the Environment Article, Title 4, Annotated
Code of Maryland.
An unbranched woody plant, less than 24 inches in height
and having a diameter of less than 1/2 inch measured at two inches
above the root collar.
The careful and planned removal of trees, shrubs, and plants
using specific standards and protection measures under an approved
forest conservation plan.
All lands lying within 50 feet, measured from the top of
each normal bank of a perennial or intermittent stream. For Tier 2
streams, all lands lying within 100 feet, measured from the top of
each normal bank of a perennial or intermittent stream.
An activity that:
Is designed to stabilize stream banks or enhance stream function
or habitat located within an existing stream, waterway, or floodplain;
Avoids and minimizes impacts to forests and provides for replanting
on site an equivalent number of trees to the number removed by the
project;
May be 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
Is not performed to satisfy stormwater management, wetlands
mitigation, or any other regulatory requirement associated with proposed
development activity.
Any division of a unit of land into two or more lots or parcels
for the purpose, whether immediate or future, of transfer of ownership,
sale, lease, or development; does not include administrative subdivisions
that do not create new lots.
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 chapter.
The entire property subject to a planned unit development.
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.
Relief from Natural Resources Article §§ 5-1601
– 5-1612, Annotated Code of Maryland, or this chapter, and does
not mean a zoning variance.
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.
An unbranched woody plant greater than 24 inches in height
and having a diameter of less than one inch measured at two inches
above the root collar.
A.Â
Applicability of this chapter. Except as provided in Subsection B of this section, this chapter applies to:
(1)Â
A person making an 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 chapter.
(3)Â
All county or municipal government units, including public works,
public utility, or projects making an application for a subdivision,
project plan, grading, or sediment control approval on areas 40,000
square feet or greater.
B.Â
Exemptions. This chapter does not apply to:
(1)Â
Highway construction activities under Natural Resources Article,
§ 5-103, of the Annotated Code of Maryland.
(2)Â
Those areas currently regulated by the Town of Denton Critical Area program (Chapter 128, Article VIII, Special District: Critical Area Overlay District), including those areas into which Critical Area forest protection measures have been extended under Natural Resources Article, § 5-1602(c), Annotated Code of Maryland.
(3)Â
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 one-year period, may not receive an agricultural exemption, unless the person files a declaration of intent, as provided for in Subsection C of this section, which includes:
(4)Â
The cutting or clearing necessary for public utility rights-of-way
licensed under Public Utility Companies Utilities Article, §§ 7-207
and 7-208 or 7-205, of the Annotated Code of the Maryland or land
for electric generating stations licensed under Public Utility Companies
Utilities Article, §§ 7-207 and 7-208 or 7-205, of
the Annotated Code of Maryland, if:
(5)Â
Routine maintenance or emergency repairs of public utility rights-of-way
licensed under Public Utility Companies Utilities Article, §§ 7-207
and 7-208 or 7-205, of the Annotated Code of Maryland.
(6)Â
Except for a public utility subject to Subsection B(5) of this chapter, routine maintenance or emergency repairs of a public utility right-of-way if the right-of-way existed before the adoption of this chapter or was constructed under the approval of this chapter.
(7)Â
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 chapter, if the activity:
(8)Â
Strip or deep mining of coal regulated under Environment Article,
Title 15, Subtitle 5 or 6, Annotated Code of Maryland;
(9)Â
Noncoal surface mining regulated under Environment Article, Title
15, Subtitle 8, Annotated Code of Maryland;
(10)Â
An activity required for constructing a dwelling intended for use
by the owner or a child of the owner:
(11)Â
A preliminary plan of subdivision or a grading or sediment control
plan approved before July 1, 1991;
(13)Â
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:
(14)Â
An activity on a previously developed area covered by impervious
surface and located in the priority funding area;
(15)Â
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
(16)Â
A stream restoration project, as defined in § 60-2 of this chapter, for which the applicant for a grading or sediment control permit has executed a binding maintenance agreement of at least five years with the affected property owner or owners.
(17)Â
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 before July 1, 1991; or after July 1, 1991, on
a property which:
C.Â
Declaration of intent.
(3)Â
The declaration of intent is effective for five years.
(4)Â
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:
(5)Â
This declaration of intent shall be in effect for five years. Should
a regulated activity occur within these first five years, the exemption
is no longer valid. Noncompliance action may be taken if the Department
deems this to be an appropriate action.
(6)Â
An applicant may apply for a regulated activity on that area of the
property not covered under the declaration of intent if this chapter's
requirements are satisfied.
(7)Â
Noncompliance.
(a)Â
A person failing to file a declaration of intent or found in
noncompliance with a declaration of intent shall be required to:
(b)Â
A penalty of $1 per square foot of cut or cleared forest may
be imposed.
(8)Â
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 chapter.
(9)Â
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 five years.
A.Â
Requirements. A person making an application after the effective
date of this chapter for subdivision as defined by this chapter 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:
(1)Â
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
(2)Â
Use methods approved by the Department, as provided in the State
Forest Conservation Technical Manual, to protect retained forests
and trees during construction.
B.Â
State funds. If a local agency or person using state funds makes
an application to conduct a regulated activity, the provisions of
COMAR 08.19.04.01D through G apply.
A.Â
A forest stand delineation shall be submitted at concept plan or
with submittal for preliminary approval of a project, before a grading
permit application, or before a sediment control application is submitted
for the tract being developed.
B.Â
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.Â
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)Â
A topographic map delineating intermittent and perennial streams
and steep slopes over 25%;
(2)Â
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% or more;
(3)Â
Forest stand maps indicating species, location, and size of trees
and showing dominant and co-dominant forest types;
(4)Â
Location of 100-year floodplains;
(5)Â
Information required by the State Forest Conservation Technical Manual;
and
(6)Â
Other information the Department determines is necessary to implement
this chapter.
D.Â
If approved by the Department, a simplified delineation, a concept
plan or plat, preliminary plat or plan, sediment control plan, or
another appropriate document, verified by a site visit, if appropriate,
may be submitted for an area:
F.Â
An approved forest stand delineation may remain in effect for a period
not longer than five years.
G.Â
Time for submittal.
(1)Â
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. Notice is not an approval.
(2)Â
If the Department fails to notify the applicant within 30 days, the
delineation shall be deemed complete and correct.
(3)Â
The Department may require further information or provide for an
additional 15 calendar days at any time during the initial thirty-day
period if extenuating circumstances exist.
A.Â
General provisions.
(1)Â
In developing a forest conservation plan, the applicant shall prioritize
techniques for retaining existing forest on the site.
(2)Â
If existing forest on the site cannot be retained, the applicant
shall demonstrate to the satisfaction of the Department:
(a)Â
How techniques for forest retention have been exhausted;
(b)Â
Why the priority forests and priority areas, as specified by
Natural Resources Article, § 5-1607(c)(1), Annotated Code
of Maryland, cannot be left in an undisturbed condition:
[1]Â
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;
[2]Â
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
(c)Â
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.
(3)Â
The applicant shall demonstrate to the satisfaction of the Department
that the requirements for afforestation or reforestation on-site or
off-site cannot be reasonably accomplished if the applicant proposes
to make a payment into the local Forest Conservation Fund instead
of or in addition to afforestation or reforestation or to purchase
credits from a forest mitigation bank.
(4)Â
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:
(a)Â
Any forest area in the net tract area, including forest in nontidal
wetlands that is retained, shall be counted towards forest conservation
requirements under this chapter.
(b)Â
For the purpose of calculating reforestation mitigation under
this chapter, 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.
(c)Â
Nontidal wetlands shall be considered to be priority areas for
retention and replacement.
(d)Â
Forested nontidal wetland identification and delineation should
be included at the earliest stage of planning to help the applicant
avoid and reduce impacts to the nontidal wetlands and avoid delays
in the approval process.
B.Â
Preliminary forest conservation plan.
(1)Â
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.
(2)Â
A preliminary forest conservation plan shall:
(a)Â
Be submitted with the preliminary plan of subdivision or proposed
project plan;
(b)Â
Include the approved forest stand delineation for the site;
and
(d)Â
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 are proposed
to occur;
(f)Â
In the case of afforestation or reforestation, include a proposed
afforestation or reforestation plan;
(g)Â
Include a proposed construction timetable showing the sequence
of forest conservation procedures;
(h)Â
Show the proposed limits of disturbance;
(i)Â
Show proposed stockpile areas;
(j)Â
Incorporate a proposed two-year maintenance agreement that shows
how areas designated for afforestation or reforestation will be maintained
to ensure protection and satisfactory establishment;
(k)Â
Other information the Department determines is necessary to
implement this chapter.
(3)Â
The preliminary forest conservation plan review shall be concurrent
with the preliminary site plan review.
(4)Â
During the different stages of the review process, the preliminary
forest conservation plan may be modified, provided that the Department
approves of the changes.
C.Â
Final forest conservation plan.
(1)Â
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.
(2)Â
A final forest conservation plan shall:
(a)Â
Be submitted along with the application for final approval of
the project, including final subdivision or site plan, an application
for a grading permit, or an application for a sediment control permit.
(b)Â
Show proposed locations and types of protective devices to be
used during construction to protect trees and forests designated for
conservation.
(c)Â
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 of vegetation
to be used.
(d)Â
Incorporate a binding two-year maintenance agreement specified
in COMAR 08.19.05.01 that details how the areas designated for afforestation
or reforestation shall be maintained to ensure protection and satisfactory
establishment, including:
(e)Â
Incorporate a long-term binding protective agreement as specified
in COMAR 08.19.05.02 that:
[1]Â
Protects areas of forest conservation, including areas of afforestation,
reforestation, and retention; and
[2]Â
Limits uses in forest conservation areas to those designated
and consistent with forest conservation, including recreational activities
and forest management practices used to preserve forest.
(g)Â
Other information the Department determines is necessary to
implement this chapter.
(3)Â
Time for submittal.
(a)Â
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.
(b)Â
If the Department fails to notify the applicant within 45 calendar
days, the plan shall be treated as complete and approved.
(c)Â
The Department may require further information or extend the
deadline for an additional 15 calendar days should extenuating circumstances
occur for the Department or the applicant.
(d)Â
At the applicant's request and under extenuating circumstances,
the Department may extend the deadline.
(4)Â
The review of a final forest conservation plan shall be concurrent
with reviewing the final subdivision or project plan, grading permit
application, or sediment control application associated with the project.
(5)Â
Revocation.
(a)Â
The Department may revoke an approved forest conservation plan
if it finds that:
[1]Â
A provision of the plan has been violated;
[2]Â
Approval of the plan was obtained through fraud, misrepresentation,
a false or misleading statement, or omission of a relevant or material
fact; or
[3]Â
Changes in the development or the site's condition necessitate
the preparation of a new or amended plan.
(b)Â
Before revoking approval of a forest conservation plan, the
Department shall notify the violator in writing and provide an opportunity
for a hearing before the Denton Town Council.
A.Â
Afforestation requirement. A person making an application after the
effective date of this chapter for a subdivision or concept plan approval,
a grading permit, or a sediment control permit for an area of land
of 40,000 square feet or greater, shall:
(2)Â
Conduct afforestation on a lot having less than 15% of its net tract
area in forest cover. Afforestation up to at least 15% of the net
tract area shall be required for the following land use categories:
(3)Â
Comply with the following when cutting into forest cover that is currently below the afforestation percentages described in Subsection A(1) and (2) above.
(a)Â
The required afforestation level shall be determined by the
amount of forest existing before cutting or clearing begins; and
(b)Â
Forest cut or cleared below the required afforestation level
shall be reforested or afforested at a two-to-one 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.
B.Â
Retention. The following trees, shrubs, plants, and specific areas
are considered a priority for retention and protection and shall be
left in an undisturbed condition unless the applicant has demonstrated,
to the satisfaction of the Department, that reasonable efforts have
been made to protect them, and the plan cannot be reasonably altered:
(1)Â
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
(2)Â
Contiguous forest that connects the largest undeveloped or most vegetated
tracts of land within and adjacent to the site.
C.Â
Retention requiring a variance. The following trees, shrubs, plants, and specific areas are considered a priority for retention and protection. They shall be left in an undisturbed condition unless the applicant has demonstrated, to the Department's satisfaction, that the applicant qualifies for a variance per § 60-16 of this chapter.
A.Â
There is a forest conservation threshold established for all land use categories, as provided in Subsection B of this section. The forest conservation threshold means the percentage of the net tract area at which the reforestation requirement changes from a ratio of 1/4 acre planted for each one acre removed above the threshold to a ratio of two acres planted for each acre removed below the threshold.
B.Â
After reasonable efforts to minimize the cutting or clearing of trees and other woody vegetation 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 outlined in Subsections B and C of this section and consistent with § 60-6 of this chapter, and the following forest conservation thresholds for the applicable land use category:
Category of Use
|
Threshold Percentage
|
---|---|
Agricultural and resource areas
|
50%
|
Medium-density residential areas
|
25%
|
Institutional development areas
|
20%
|
High-density residential areas
|
20%
|
Mixed-use and planned unit development areas
|
15%
|
Commercial and industrial use areas
|
15%
|
C.Â
Calculations.
(1)Â
For all existing forest cover measured to the nearest 1/10 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)Â
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 Subsection C(1) of this section. The credit calculation shall be according to the criteria provided in the State Forest Conservation Technical Manual.
(3)Â
For all existing forest cover measured to the nearest 1/10 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 two acres
planted for each acre removed below the threshold.
Sequence for afforestation and reforestation.
A.Â
After techniques for retaining existing forest on the site have been
exhausted, the preferred sequence for afforestation and reforestation
is as follows:
(1)Â
Selective clearing and supplemental planting on-site;
(2)Â
On-site afforestation or reforestation, if economically feasible,
using transplanted or nursery stock that is greater than 1.5 inches
in diameter measured at 4.5 feet above the ground;
(3)Â
On-site afforestation or reforestation, using whip and seedling stock;
(4)Â
Landscaping of areas under an approved landscaping plan which establishes
a forest that is at least 35 feet wide and covering 2,500 square feet
or more of the area;
(5)Â
Off-site afforestation or reforestation, using transplanted or nursery
stock that is greater than 1.5 inches in diameter measured at 4.5
feet above the ground in areas designated by the Department. Afforestation
may be accomplished with street tree plantings;
(6)Â
Off-site afforestation or reforestation, using transplanted or nursery
stock that is greater than 1.5 inches in diameter measured at 4.5
feet above the ground;
(7)Â
Off-site afforestation or reforestation, using whip and seedling
stock;
(8)Â
Natural regeneration on-site; and
(9)Â
Natural regeneration off-site.
B.Â
During site or subdivision plan review, a sequence other than the one described in Subsection A may be used to achieve the objectives of land use plans or land use policies to take advantage of opportunities to consolidate forest conservation efforts.
C.Â
Off-site afforestation or reforestation may include the use of forest
mitigation banks, which have been so designated in advance by the
Department.
D.Â
The following are also considered priorities for afforestation and
reforestation:
(1)Â
Establishing or enhancing forest buffers adjacent to intermittent
and perennial streams, and coastal bays and their buffers, to widths
of at least 50 feet and 100 feet for Tier 2 streams.
(2)Â
Establishing or enhancing nonforested areas on 100-year floodplains,
when appropriate.
(3)Â
Establishing or increasing existing forested corridors to connect
existing forests within or adjacent to the site. Forested corridors
should be a minimum of 300 feet in width to facilitate wildlife movement
whenever practical.
(4)Â
Establishing or enhancing forest buffers adjacent to critical habitats,
where appropriate.
(5)Â
Establishing plantings to stabilize slopes of 25% or greater and
slopes of 15% or greater with a soil K value greater than 0.35, including
the slopes of ravines or other natural depressions.
(6)Â
Establishing buffers adjacent to differing land use areas, when appropriate,
or adjacent to highways or utility rights-of-way.
(7)Â
Establishing forest areas adjacent to existing forests to increase
the overall area of contiguous forest cover, when appropriate.
(8)Â
Using native plant materials for afforestation or reforestation,
when appropriate.
E.Â
A person required to conduct afforestation or reforestation under
this section shall accomplish it within one year or two growing seasons,
whichever is a greater time period. The time begins at project completion,
which shall be determined by the Department.
A.Â
There is established a Denton Forest Conservation Fund.
B.Â
A person subject to this chapter shall contribute money into the
Denton Forest Conservation Fund if that person demonstrates to the
satisfaction of the Department:
C.Â
For a project inside a priority funding area, as defined in Natural
Resources Article, § 5-1610, Annotated Code of Maryland,
the contribution shall be at a rate of $0.305 per square foot of the
area of required planting. The amount shall be adjusted for inflation
as determined by the Department annually; and
D.Â
For a project outside a priority funding area, the contribution shall
be at a rate of $0.366 per square foot of the area of required planting.
The amount shall be 20% higher than the rate established for a project
inside a priority funding area and adjusted for inflation as determined
by the Department annually.
E.Â
Money contributed in lieu of afforestation or reforestation under
this section shall be paid when the Town approves the development
project.
F.Â
The Town shall accomplish the reforestation or afforestation for
which the money is deposited within two years or three growing seasons,
whichever is a greater time period, after receipt of the money.
G.Â
Money deposited in the Denton Forest Conservation Fund:
(1)Â
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)Â
Shall be deposited in a separate forest conservation fund; and
(3)Â
May not revert to the general fund.
H.Â
Sites for afforestation or reforestation using Fund money.
(1)Â
Except as provided in Subsection G(2), the reforestation or afforestation requirement under this chapter shall occur in Denton and watershed in which the project is located; except
(2)Â
If the reforestation or afforestation cannot be reasonably accomplished
in Denton, then the reforestation or afforestation shall occur in
the county or watershed in which the project is located.
I.Â
The Department shall submit to DNR a general mitigation plan and
accounting procedures and ensure that the equivalent number of acres
for which money is collected and paid into its forest conservation
fund is mitigated in accordance with afforestation, reforestation,
and conservation priorities and techniques authorized under Natural
Resources Article § 5-1607. A summary of the mitigation
plan and current accounting will be available for public review and
annually posted on the Town webpage.
Use of a forest mitigation bank.
A.Â
If a person subject to this chapter demonstrates to the Department's
satisfaction that requirements for reforestation or afforestation
on-site or off-site cannot be reasonably accomplished, the person
may contribute credits from a forest mitigation bank. A credit is
required for each 1/10 acre of an area of required planting.
B.Â
The credits shall be debited from an approved forest mitigation bank
within 90 calendar days after development project completion.
A.Â
A person may create a forest mitigation bank from which applicants
may purchase credits to meet this chapter's afforestation and
reforestation requirements.
B.Â
The forest mitigation bank shall:
(1)Â
Afforest or reforest an area of land in accordance with a forest
mitigation bank agreement;
(2)Â
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)Â
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)Â
Use native plant materials for afforestation or reforestation unless
inappropriate; and
(5)Â
Cause trees to be planted which:
(a)Â
Establish or enhance forested buffers adjacent to intermittent
and perennial streams and coastal bays to widths of at least 50 feet;
(b)Â
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)Â
Establish or enhance forest buffers adjacent to critical habitats,
where appropriate;
(d)Â
Establish or enhance forested areas in 100-year floodplains;
(e)Â
Stabilize slopes of 25% or greater;
(f)Â
Stabilize slopes of 15% or greater with a soil K value greater
than 0.35, including the slopes of ravines or other natural depressions;
(g)Â
Establish buffers adjacent to areas of differing land use, where
appropriate, or adjacent to highways or utility rights-of-way; or
(h)Â
Establish forest areas adjacent to existing forests to increase
the overall area of contiguous forest cover, when appropriate.
C.Â
A person
proposing to create a forest mitigation bank shall submit to the Department
a:
(1)Â
Completed application on a form approved by the Department, which
has been signed by an authorized individual in conformance with COMAR
08.19.04.02(I).
(3)Â
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 08.19.06.01(A);
and
(4)Â
A proposed two-year maintenance agreement that:
(5)Â
Copy of the deed to the property;
(6)Â
Survey or other legally sufficient description of the bank site for
inclusion in the deeds of easement, deed restrictions, or covenants.
(7)Â
Title report or other assurance that:
(a)Â
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)Â
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
(8)Â
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 off-site
afforestation or reforestation requirements.
D.Â
The owner
of an approved forest mitigation bank shall enter into an agreement
with the Town which contains:
(1)Â
The approved reforestation or afforestation plan;
(2)Â
The approved system for marking and tracking which portions of the
bank have been debited; and
(3)Â
An acknowledgment that the bank may not debit any portion of the
afforested or reforested land until two years of successful growth
has been achieved unless the banker has posted a bond or alternate
security form.
A.Â
Tree species
used for afforestation or reforestation shall be native to the area,
when appropriate, and selected from a list of approved species by
the District Forester for DNR and approved by the Department.
A.Â
A person required to conduct afforestation or reforestation under
this chapter shall furnish financial security in the form of a bond,
an irrevocable letter of credit, or other security approved by the
Town. The surety shall:
(1)Â
Assure that the afforestation, reforestation, and the associated
maintenance agreement are conducted and maintained per the approved
forest conservation plan;
(2)Â
Be in an amount equal to the estimated cost, as determined by the
Department, of afforestation and reforestation; and
(3)Â
Be in a form and of a content approved by the Department.
B.Â
After one growing season, the person required to file a bond under Subsection A of this section may request a 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.Â
The Department shall determine whether a lesser amount is sufficient
to cover the cost of afforestation or reforestation, taking into account
the following:
D.Â
If, after two growing seasons, the plantings associated with the
afforestation or reforestation meet or exceed the State Forest Conservation
Technical Manual standards, the amount of the cash bond, letter of
credit, surety bond, or other security shall be returned or released.
A.Â
Protection
devices. The Town shall adopt standards for the protection of trees
from construction activity. Before cutting, clearing, grading, or
construction begins on a site for which this chapter requires a forest
conservation plan; the applicant shall demonstrate to the Town that
protective devices have been established to the Town's satisfaction
for retention areas.
A.Â
A person may request a variance from this chapter or the requirements
of Natural Resource Article, §§ 5-1601 through 5-1612,
Annotated Code of Maryland, if the person demonstrates that enforcement
would cause practical difficulty as demonstrated by law or would result
in unwarranted hardship to the person.
B.Â
The Board of Appeals of the Town of Denton, as established in the
Denton Zoning Ordinance, is authorized to grant variances and hear
appeals from administrative decisions as provided in this chapter.
C.Â
An applicant for a variance shall:
(1)Â
Describe the special conditions peculiar to the property, which would
cause unwarranted hardship;
(2)Â
Describe how enforcement of these rules will deprive the applicant
of rights commonly enjoyed by others in similar areas;
(3)Â
Verify that the granting of the variance will not confer on the applicant
a special privilege that would be denied to other applicants;
(4)Â
Verify that the variance request is not based on conditions or circumstances
which are the result of actions by the applicant;
(5)Â
Verify that the request does not arise from a condition relating
to land or building use, either permitted or nonconforming, on a neighboring
property;
(6)Â
Verify that the granting of a variance will not adversely affect
water quality;
(7)Â
Verify resource variance granted is the minimum necessary to afford
relief; and
(8)Â
Verify the resource variance will not adversely affect water quality.
E.Â
Variance proceedings shall follow the process for variances outlined
in the Denton Zoning Ordinance, including public notice.
F.Â
Notice of a request for a variance shall be given by the Department
to the Department of Natural Resources within 15 days of receipt of
a variance request.
G.Â
There is established by this chapter 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
approval of a variance under Natural Resources Article, §§ 5-1601
through 5-1612, Annotated Code of Maryland, or this chapter.
A.Â
Enforcement.
(1)Â
Sites subject to this chapter's requirements may be inspected
by the Town or its duly appointed representative upon notification
of the owner or developer.
(2)Â
The Department may issue a stop-work order against a person who violates
any provision of this chapter, order, approved forest conservation
plan, or maintenance agreement.
(3)Â
The Town may seek an injunction requiring the person to cease and
take corrective action to restore or reforest an area.
(4)Â
An appeal from any final order or decision by the Department may
be taken to the Board of Appeals by any person aggrieved. An appeal
is taken by filing with the Board of Appeals under the procedures
established for a zoning appeal in the Denton Zoning Ordinance.
B.Â
Noncompliance fees.
(1)Â
A person found to be in noncompliance with this chapter, regulations
adopted under this chapter, the forest conservation plan, or the associated
two-year maintenance agreement shall be assessed by the Town the penalty
of $1 per square foot of the area found to be in noncompliance with
required forest conservation defined herein.
D.Â
The Department shall provide the DNR notice of an enforcement action
within 15 days after the Department's commencement of enforcement.
A.Â
On or before March 1 of each year, the Town shall submit to the Department
of Natural Resources a report on:
(1)Â
The number, location, and type of projects subject to the provisions
of this chapter;
(2)Â
The amount and location of acres cleared, conserved, and planted,
including any areas in the 100-year floodplain, in connection with
a development project;
(3)Â
The 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, or conserved
using the fees;
(4)Â
The costs of implementing the Denton Forest Conservation Program;
(5)Â
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;
(6)Â
Number of acres debited from each forest mitigation bank since the
last annual report;
(7)Â
Forest mitigation banks inspected since the last annual report; and
(8)Â
Number, location, and types of violations and types of enforcement
activities conducted.
B.Â
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 eight-digit subwatershed.
A.Â
Documentation. The Department shall submit the necessary documentation
to the Department of Natural Resources to comply with COMAR 08.19.02.04,
Forest Conservation.
A.Â
A non-refundable fee will be collected for each simplified forest
stand delineation, forest stand delineation, and forest conservation
plan submitted. This fee will provide for the cost of plan review,
administration and management of the plan approval process, and inspection
and monitoring of all projects subject to this chapter.
B.Â
A permit fee schedule shall be established as needed by the Denton
Town Council.
This chapter is hereby enacted and becomes effective April 8,
2021.