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Be it resolved, enacted and ordained
by the Mayor and Board of Commissioners of the Town of
Emmitsburg, Maryland, pursuant to the authority granted
to them by the laws of Maryland and the Charter of the
Town of Emmitsburg, that Title 16; Section 16.48 of the
Emmitsburg Municipal Code, be amended as follows.
The amended sections of these
regulations reads as follows with new language designated
by being in BOLD CAPITAL LETTERS, and language
being deleted designated by being in strike out.
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Chapter 16.48 Is to Be Repealed and Re-enacted to Read
as Follows:
Article 4.
Forest and Tree Conservation
16.48.070 Definitions.
In this section, the following terms have the meanings
indicated:
"Afforestation" means the establishment of the tree
cover on an area from which it has always or very long
been absent, or the planting of open areas which are not
presently in forest cover.
"Applicant" means a person who is applying for
subdivision or project plan approval or a grading or
sediment control permit, or who has received approval of
a forest stand delineation or forest conservation plan.
"Approved forest management plan" means a document:
1. Approved by the Department of Natural Resources
forester assigned to the county in which the property is
located; and
2. Which operates as a protective agreement for forest
conservation as described in the Natural Resources
Article, Section 5-1607(e)--(f), Annotated Code of
Maryland.
"Caliper" means the diameter measured two inches above
the root collar.
"Champion tree" means the largest tree of its species
within the United States, the state, county or
municipality. "Champion tree of the state" means a tree
which appears in the state forest conservation manual
list of state champion trees.
"Commercial and industrial uses" includes manufacturing
operations, office complexes, shopping centers, and
other similar uses and their associated storage areas,
yards, and parking areas, and corresponds to
Emmitsburg's zoning classification: B-1, B-2, IP, ORI
and HS.
"Commercial logging or timber harvesting operations"
means the cutting and removing of tree stems from a site
for commercial purposes, leaving the root mass intact.
"Commission" means Emmitsburg's planning and zoning
commission.
"Critical habitat area" means a critical habitat for
endangered species and its surrounding protection area.
A critical habitat area shall:
1. Be likely to contribute to the long-term survival of
the species;
2. Be likely to be occupied by the species for the
foreseeable future; and
3. Constitute habitat of the species which is deemed
critical under Title 4, Subtitle 2A, Section 6, Section
4-2A-04 and Section 10-2A-06 of the Natural Resources
Article, Annotated Code of Maryland.
"Critical habitat for endangered species" means a
habitat occupied by an endangered species as determined
or listed under Section 4-2A-04, Section 10-2A-04 of the
Natural Resources Article, Annotated Code of Maryland.
"Declaration on intent" means:
1. A signed and notarized statement by a landowner or
the landowner's agent certifying that the activity on
the landowner's property:
a. Is for certain activities exempted under this chapter
or Natural Resources Article, Section 5-103 and
5-1601--5-1612, Annotated Code of Maryland,
b. Does not circumvent the requirements of this chapter
or Natural Resources Article, Section 5-103 and
5-1601--5-1612, Annotated Code of Maryland,
c. Does not conflict with the purpose of any other
declaration of intent; or
2. The document required under COMAR 08.19.01.05 or this
chapter.
"Department" means the town of Emmitsburg planning and
zoning department.
Development Project
1. "Development project" means the grading or
construction activities occurring on a specific tract
that is forty TWENTY thousand (40,000
20,000) square feet or greater.
2. "Development project" includes redevelopment.
"Development project completion" means for the purposes
of afforestation, reforestation, or payment into a fund:
1. The release of the development bond, if required;
2. Acceptance of the project's streets, utilities, and
public services by the commission; or
3. Designation by the Commission or state that a:
a. Development project has been completed, or
b. Particular stage of a staged development project,
including a planned unit development, has been
completed.
"Forest" means a biological community dominated by trees
and other woody plants covering a land area of ten
thousand (10,000) square feet or greater.
1. Forest includes:
a. Areas that have at least one hundred (100) trees per
acre with at least fifty (50) percent of those trees
having a two inch or greater diameter at 4.5 feet above
the ground and larger; and
b. Forest areas that have been cut but not cleared.
2. Forest does not include orchards.
"Forest conservancy district board" means the forestry
board created for each state forestry conservancy
district under Natural Resources Article, Sec.
5601--6-610, Annotated Code of Maryland.
"Forest conservation" means the retention of existing
forest or the creation of new forest at the levels
prescribed by the town planning and zoning commission.
"Forest conservation and management agreement" means an
agreement as stated in the Tax-Property Article, Section
8-211, Annotated Code of Maryland.
"Forest conservation technical manual" means the
Maryland State technical manual incorporated by
reference, used to establish standards of performance
required in preparing forest stand delineations and
forest conservation plans.
"Forest conservation plan" means a plan approved
pursuant to Section 16.52.110
16.48.120.
"Forest cover" means the area of a site meeting the
definition of forest.
"Forest management plan" means a plan establishing best
conservation and management practices for a landowner in
assessment of the resource values of forested property.
"Forest stand delineations" means the methodology for
evaluating the existing vegetation on a site proposed
for development, as set forth in the forest conservation
manual.
"Forest slopes" means an area meeting the definition of
forest and growing on an area with a slope of
twenty-five (25) percent or more and covering an area of
at least ten thousand (10,000) square feet.
"Growing season" means a period of consecutive
frost-free days as stated in the soil survey for
Frederick County. Published by the National Co-op Soil
Survey Program, 16 U.S.C. Section 590 (a--f).
"High density residential areas" means areas zoned for
densities greater than one dwelling unit per acre,
including both existing and planned development and
their associated infrastructure, such as roads,
utilities, and water and sewer service, and corresponds
to the Emmitsburg zoning classifications: RS, R-1, R-2
and R-3.
"Institutional development area" includes schools,
colleges and universities, military installations,
transportation facilities, utility and sewer projects,
government offices and facilities, golf courses,
recreations areas, parks, and cemeteries and corresponds
to the Emmitsburg zoning classification: OS.
"Intermittent stream" means a stream in which surface
water is absent during a portion 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 vegetation.
"Landscaping plan" means a plan:
1. Drawn to scale, showing dimensions and details for
reforesting an area at least thirty-five (35) feet wide
and covering two thousand five hundred (2,500) square
feet or greater in size;
2. Using native or indigenous plants when appropriate;
and
3. Which is made part of an approved forest conservation
plan.
"Local agency" means each unit in the executive,
legislative, or judicial branch of a county or municipal
government, including an office or department of public
works.
"Lot" means 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 Section 5-1601, Annotated Code
of Maryland, and this chapter without an approved forest
stand delineation and forest conservation plan.
"Maintenance agreement" means the short-term management
agreement associated with afforestation or reforestation
plans required under Natural Resources Article, Section
6-1605, Annotated Code of Maryland, and this ordinance.
"Minor development project" means a project:
1. On less than five acres of land containing not more
than four lots per acre; or
2. Substantively similar as defined by the Department
and approved by the state.
"Mixed use development" means a single, relatively high
density development project, usually commercial in
nature, which includes two or more types of uses, and
corresponds to the Emmitsburg zoning classification(s)
of VZ.
"Net tract area" means the total area of a site,
including both forested and nonforested areas, at the
nearest one-tenth acre, reduced by the area found to be
within the boundaries of the one hundred-year
floodplain.
"Nontidal wetland" means 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.
1. The determination of whether an area is considered a
no tidal wetland shall be made 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.
2. Nontidal wetlands does not include tidal wetlands
regulated under Title 9 of the Natural Resources
Article, Annotated Code of Maryland.
"Off-site" means outside the limits of the area
encompassed by the development plan, including any
area(s) classified as one hundred-year plain.
"On-site" means within the limits of the area
encompassed by the development plan, including any
area(s) classified as one hundred-year plain.
"One-hundred-year flood" means a flood which has a one
percent chance of being equalled or exceeded in any
given year. Except for Class-III waters (natural trout
streams), a body of water with a watershed less than
four hundred (400) acres is excluded.
"One-hundred-year floodplain" means an area along or
adjacent to a stream or body of water, except tidal
waters, that is capable of storing or conveying
floodwaters during a one hundred-year frequency storm
event.
A one-hundred-year flood is a flood which has a one
percent 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
four hundred (400) acres is excluded.
"Perennial stream" means a stream containing surface
water throughout an average rainfall year, as shown on
the most recent 7.5 minute topographic quadrangle
published by the United States Geologic Survey, as
confirmed by field verification.
"Person" includes the federal government, the state, any
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.
"Planned unit development" means a development comprised
of a combination of land uses or varying intensities of
the same land use in accordance with an integrated plan
that provides flexibility in land use design approved by
Emmitsburg with at least twenty (20) percent of the land
permanently dedicated to open space and correspond to
Emmitsburg's zoning classification: OS.
“PRIORITY FUNDING AREA” MEANS AN AREA DESIGNATED AS A
PRIORITY FUNDING AREA UNDER SECTION 5-7B-02 OF THE STATE
FINANCE AND PROCUREMENT ARTICLE.
"Project plan" means a construction, grading, or
sediment control activity on an area of forty
TWENTY thousand (40,000 20,000)
square feet or greater by a local agency.
"Public utility" means any:
1. Transmission line or electric generating station;
2. 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 one hundred (100) live trees
per acre with at least fifty (50) percent 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. Reforestation includes landscaping or areas
under an approved landscaping plan that established a
forest that is at least thirty-five (35) feet wide and
covering two thousand five hundred (2,500) square feet
of area.
"Regulated activity" means any of the following
activities, when that activity occurs on a unit of land
which is forty TWENTY thousand (40,000
20,000) square feet or greater:
1. Subdivision;
2. Grading;
3. An activity that requires a sediment control permit;
or
4. Project plan of a local agency.
"Retention" means the deliberate holding and protecting
of existing trees, shrubs or plants on the site
according to established standards as set forth in the
forest conservation manual.
"Selective clearing" means the careful and planned
removal of trees, shrubs, and plants using specific
standards and protection measures under an approved
forest conservation plan.
"Stream buffer" means all lands lying within fifty (50)
feet, measured from the top of each normal bank of any
perennial or intermittent stream.
“STREAM RESTORATION PROJECT” MEANS AN ACTIVITY THAT:
A. IS DESIGNED TO STABILIZE STREAM BANKS OR ENHANCE
STREAM FUNCTION OR HABITAT LOCATED WITHIN AN EXISTING
STREAM, WATERWAY OR FLOODPLAIN
B. AVOIDS AND MINIMIZES IMPACTS TO FORESTS AND PROVIDES
FOR REPLANTING ON-SITE AN EQUIVALENT NUMBER OF TREES TO
THOSE REMOVED BY THE PROJECT
C. 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
D. IS NOT PERFORMED TO SATISFY STORM WATER MANAGEMENT,
WETLANDS MITIGATION, OR ANY OTHER REGULATORY REQUIREMENT
ASSOCIATED WITH PROPOSED DEVELOPMENT ACTIVITY.
"Subdivision" means any division of a parcel of land
into two or more lots or parcels for the purpose,
whether immediate or future, or transfer of ownership,
sale, lease or development.
"Timber harvesting" means a tree-cutting operation
affecting 1 or more acres of forest or developed
woodland within a one-year interval that disturbs five
thousand (5,000) square feet or more of forest floor.
Timber harvesting does not include grubbing and clearing
of root mass.
“Tract”.
1. Except as provided in subsection (2) of this
definition, "tract" means property subject to an
application for a grading, or sediment control, permit
or subdivision
approval.
2. If property is included in a planned unit
development, "tract" means the entire
property subject to the planned unit development.
"Tract for a planned unit development" means the entire
property subject to a planned unit development.
"Tree" means a large, woody plant having one or several
self-supporting stems or trunks and numerous branches
that reach a height of at least twenty (20) feet at
maturity.
"Variance," as provided for in Section 16.48.200, means
relief from Natural Resources Article, Section
5-1601--5-1612, Annotated Code of Maryland. Variance
does not mean a zoning variance.
"Watershed" means all lands lying within an area
described as a sub basin by the Department of the
Environment under COMAR 26.08.02.08.
"Whip" means an unbranched woody plant greater than
forty-eight (48) inches in height and having a diameter
less than one inch caliper measured at two inches above
the root collar.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.1)
16.48.080 Applicability.
A. Except as provided in subsection (B) of this section,
this article applies to:
1. A person making application for a subdivision,
project plan, grading, or sediment control approval on
units of land forty TWENTY thousand (40,000 20,000)
square feet or greater after the effective date of this
article;
2. A public utility not exempt under subsection (B)(5)
and (6) of this section;
3. A unit of country or municipal government, including
a public utility or public work project, making
application for a subdivision, project plan, grading, or
sediment control approval on areas forty
TWENTY thousand (40,000 20,000)
square feet or greater.
B. This article does not apply to:
1. Any construction activity that is subject to Natural
Resources Article Section 5-103, Annotated Code of
Maryland;
2. Any cutting or clearing of forest, or any other
development activity, in areas governed by the
Chesapeake Bay Critical Area Protection Law (Title 8,
Subtitle 18 of the Natural Resources Article, Annotated
Code of Maryland);
3. Commercial logging and timber harvesting operations;
including any harvesting conducted under the forest
conservation and management program under Section 8-211
of the Tax-Property Article, Annotated Code of Maryland
that were completed:
a. Is completed before July 1, 1991; or
b. Is completed on or after July 1, 1991, and the
property on which the cutting or clearing is conducted
is not the subject of an application for a grading
permit for development within 5 years after the logging
or harvesting operation. However, after this five-year
period, the property shall be subject to this subtitle;
c. Is subject to a declaration on intent signed by owner
and or developer and approved by the local soil
conservation district or sediment control agency;
4. 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. However, a person
engaging in an agricultural activity clearing
forty TWENTY thousand (40,000
20,000) square feet or more of forest within a
one-year period, who wishes to receive an agricultural
exemption, shall file a declaration of intent with the
Department shall include:
a. A statement that the landowner or his agent will
practice agriculture on that tract for five years from
the date of declaration; and
b. A sketch map of the tract which shows the area to be
cleared.
5. The cutting or clearing of public utility
rights-of-way licensed pursuant to Sections 54A and 54B
or Section 54I of Article 78 of the Code, UNLESS THE
ACTIVITY IS SUBJECT TO THE REQUIREMENTS OF A PREVIOUS
FOREST CONSERVATION PLAN PREPARED UNDER THIS CHAPTER,
provided that:
a. Any required certificates of public convenience and
necessity have been issued in accordance with Natural
Resources Article, Section 5-1604(F), Annotated Code of
Maryland; and
b. The cutting or clearing of the forest is conducted so
as to minimize the loss of forest;
6. Any routine maintenance of public utility
rights-of-way;
7. Any activity conducted on a single lot of any size
provided that:
a. The activity does not result in the cutting,
clearing, or grading of more than forty
TWENTY thousand (40,000 20,000)
square feet of forest; and
b. The activity on the lot will not result in the
cutting, clearing, or grading of any forest that is
subject to the requirements of a previous forest
conservation plan prepared under this subtitle;
c. Is the subject of a declaration of intent filed with
the commission as provided for in Section 16.48.090,
stating that the lot will not be the subject of a
regulated activity within five years of the cutting,
clearing, or grading of forest.
8. Any strip or deep mining of coal regulated under
Title 7, Subtitle 5 or 5A of the Natural Resources
Article, Annotated Code of Maryland;
9. Any non-coal surface mining regulated under Title 7,
Subtitle 6A of the Natural Resources Article, Annotated
Code of Maryland;
10. An activity required for the purpose of constructing
a dwelling house intended for the use of the owner, or a
child or a grandchild of the owner, if the activity:
a. Does not result in the cutting, clearing, or grading
of more than forty TWENTY
thousand (40,000 20,000) square
feet of forest; and
b. Is the subject of a declaration on intent filed with
the department which states that transfer of ownership
may result in a loss of exemption.
11. A preliminary plan of subdivision or a grading or
sediment control plan approved before July 1, 1991.
(0rd. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.2)
12. AN ACTIVITY ON A PREVIOUSLY DEVELOPED AREA
COVERED BY IMPERVIOUS SURFACE AND LOCATED IN THE
PRIORITY FUNDING AREA.
13. MAINTENANCE OR RETROFITTING OF A STORM WATER
MANAGEMENT STRUCTURE THAT MAY INCLUDE CLEARING OF
VEGETATION OR REMOVAL AND TRIMMING OF TREES, SO LONG AS
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.
14. A STREAM RESTORATION PROJECT, AS DEFINED IN THIS
ORDINANCE, FOR WHICH THE APPLICANT FOR A GRADING OR
SEDIMENT CONTROL PERMIT HAS EXECUTED A BINDING
MAINTENANCE AGREEMENT OF AT LEAST FIVE (5) YEARS WITH
THE AFFECTED PROPERTY OWNER OR OWNERS
16.48.090 Declaration of intent.
A. The purpose of the declaration of intent is to verify
that the proposed activity is exempt under Natural
Resources Article, Sections 5-103 and 5-1601--5-1612,
Annotated Code of Maryland, and this chapter.
B. A person seeking an exemption under Section 16.48.080
shall file a declaration of intent with the commission.
C. The declaration of intent is effective for five
years.
D. The existence of a declaration of intent does not
preclude another exempted activity on the property
subject to a declaration of intent, if the activity:
1. Does not conflict with the purpose of any existing
declaration on intent, and
2. Complies with the applicable requirements for an
exempted activity.
E. If a regulated activity on the area covered by the
declaration on intent occurs within five years of the
effective date of the declaration of intent:
1. There shall be an immediate loss of exemption; or
2. There may be a noncompliance action taken by the
Department, as appropriate, under this chapter.
F. An applicant may apply for a regulated activity on
that area of the property not covered under the
declaration of intent if the requirements of this
chapter are satisfied.
G. The department may require a person failing to file a
declaration of intent or found in noncompliance with a
declaration of intent to:
1. Meet the retention, afforestation and reforestation
requirements established in this chapter;
2. Pay a noncompliance fee of thirty (30) cents per
square foot of forest cut or cleared under the
declaration of intent;
3. Be subject to enforcement actions appropriate under
Natural Resources Article, Section 5-1601--5-1612,
Annotated Code of Maryland, and this chapter; or
4. File a declaration of intent with the department.
H. In its determination of appropriate enforcement
action, the department may consider whether failure to
file a declaration of intent by a person required to
file is a knowing violation of this chapter.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.3)
16.48.100 General requirements.
A. A person who applies after January 1, 1993, for
subdivision approval, for an area of land of
forty TWENTY thousand (40,000
20,000) square feet or more:
1. Shall submit to the commission:
a. A forest stand delineation for the lot or parcel on
which the development is located; and
b. A forest conservation plan for the lot or parcel on
which the development is located;
2. Shall not perform any construction activity within
the dripline of a tree that is to be retained; and
3. Shall use methods approved by the commission, as set
forth in the forest conservation manual, to protect
retained trees during construction.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.4)
16.48.110 Forest stand delineation.
A. A forest stand delineation shall be submitted at the
initial stage of subdivision application for the lot or
parcel intended to be developed.
B. The delineation shall be prepared by a licensed
forester, licensed landscape architect, or a
professional who meets the requirements stated in COMAR
08.19.06.01.
C. The delineation will be prepared by a licensed
forester or licensed landscape architect who is approved
by the commission to:
1. Develop a forest stand delineation according to
criteria stated in the forest conservation manual;
2. Prepare and interpret maps, including soils,
topography, floodplain, wetlands and a site map;
3. Prepare afforestation and reforestation plans as
stated in Section 16.48.120 and 16.48.130;
4. Prepare graphic indication of forest protection and
retention areas and all method inclusive therein;
5. Review impact of development on forested area;
6. Prepare forest inventory using forest measurement
equipment.
D. The delineation shall include:
1. A topographic map delineating intermittent and
perennial streams, and steep slopes over twenty-five
(25) percent;
2. A soils map delineating soils with structural
limitations, hydric soils, or soils with a soil K value
greater than 0.35 on slopes of fifteen (15) percent or
more;
3. Forest stand maps indicating species, location, and
size of trees and showing dominant and co dominant
forest types;
4. Location of one hundred-year floodplains;
5. Information required by the forest conservation
technical manual; and
6. Any other information required by the department.
E. An approved forest stand delineation may remain in
effect for a period not longer than five years.
F. 1.Within sixty (60) calendar days after receipt of
the forest stand delineation, the commission or agent
shall notify the applicant whether the forest stand
delineation is complete and correct.
2. If the commission or agent fails to notify the
applicant within sixty (60) days the delineation shall
be treated as complete and correct.
3. The commission may require further information or
provide for an additional fifteen (15) calendar days
under extenuating circumstances.
4. The applicant will pay for the review of the
submittal according to review fees policy.
(Ord. 02-03: Ord. 93-1 § 1 (part): prior code Appx. B
Art. XVI § 16.4.5)
16.48.120 Forest conservation plan.
A. A forest conservation plan shall be prepared by a
licensed forester, licensed landscape architect, or a
qualified professional who meets the requirements stated
in COMAR 08.19.06.01.
B. The forest conservation plan will be prepared by a
licensed forester, licensed landscape architect, or a
qualified professional who is approved by the commission
to:
1. Develop a forest stand delineation according to
criteria stated in the technical manual;
2. Prepare and interpret maps, including soils,
topography, floodplain, wetlands and a site map;
3. Prepare afforestation and reforestation plans as
stated in Sections 16.48.120 and 16.48.130;
4. Prepare graphic indication of forest protection and
retention areas and all method inclusive therein;
5. Review impact of development on forested area;
6. Prepare forest inventory using forest measurement
equipment.
C. Developing a forest conservation plan, the applicant
shall give priority to techniques for retaining existing
forest on the site.
D. If existing forest on the site subject to a forest
conservation plan cannot be retained, the applicant
shall demonstrate to the satisfaction of the department:
1. How techniques for forest retention have been
exhausted;
2. Why the priority forests and priority areas specified
in Natural Resources Article, Section 5-1607(c(2)),
Annotated Code of Maryland, cannot be left in an
undisturbed condition; AND HOW THE PRIORITY FORESTS
AND PRIORITY AREAS SPECIFIED IN THIS SECTION QUALIFY FOR
A MODIFICATION
3. If the 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 Section 5-1607 (C(1)),
Annotated Code of Maryland;
4. Where on the site in priority areas afforestation or
reforestation will occur in compliance with Natural
Resources Article Section 5-1607, Annotated Code of
Maryland.
5. 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 a fund as per Section
16.48.160 instead of afforestation or reforestation.
E. A forest conservation plan shall:
1. Be submitted with the preliminary subdivision plan or
site plan submitted for the site;
2. Include a map of the site drawing at the same scale
as the subdivision plat or site plan;
3. Include a table that lists, in square feet:
a. The net tract area;
b. The total area of forest conservation required; and
c. The total area of forest conservation that the
applicant proposes to provide, including both on-site
and off-site areas;
4. Include a clear graphic indication of the forest
conservation provided on the site, showing areas where
retention of existing forest or afforestation is
planned;
5. Include a construction timetable showing the sequence
for tree conservation procedures;
6. Include an afforestation or reforestation plan
prepared by a licensed forester or licensed landscape
architect with a timetable and description of needed
site and soil preparation, species, size and spacing to
be utilized;
7. Show locations and types of protective devices to be
used during construction activities to protect trees and
areas of forest designated for conservation;
8. Show the planned limits of disturbance;
9. Show planned stockpile areas;
10. Incorporate a commitment to complete all required
afforestation and reforestation within one year
following approval and recording in the county records
of the final development plat, or within two growing
seasons following approval and recording in the county
records of the final development plat, if a particular
species in the plan necessitates it;
11. Incorporate a binding two-year management agreement
that details how the areas designated for afforestation
or reforestation will be maintained to ensure protection
or satisfactory establishment, including:
a. Watering; and
b. Reinforcement planting provision if survival rates
fall below required standards, as set forth in the
forest conservation manual;
12. Incorporate a binding protective agreement that:
a. Provides protection for areas of forest conservation,
including areas of afforestation, reforestation, and
retention;
b. Limits uses in areas of forest conservation to those
uses that are consistent with forest conservation,
including recreational activities and any forest
management practices that is used to preserve forest;
and
c. Incorporates conservation easements, deed
restrictions, covenants, and other agreements as
necessary;
13. Information required in the forest conservation
technical manual; and
14. Any other information the department requires.
F. 1. Within sixty (60) calendar days after receipt of
the forest conservation plan, the commission or agent
shall notify the applicant whether the forest
conservation plan is complete and approved.
2. If the commission or agent fails to notify the
applicant within sixty (60) calendar days, the plan
shall be treated as complete and approved.
3. The commission may require further information or
extend the deadline for an additional fifteen (15)
calendar days under extenuating circumstances.
4. At the request of the applicant, the department may
extend the deadline under extenuating circumstances.
5. The applicant will pay for the review of the forest
conservation plan at forty dollars ($40.00) per hour
before approval is issued.
G. The commission's review of a forest conservation plan
shall be concurrent with the review of the preliminary
subdivision plat or site plan, associated with the
project.
H. The commission may revoke an approved forest
conservation plan if it finds that:
1. Any provision of the plan has been violated;
2. Approval of the plan was obtained through fraud,
misrepresentation, a false or misleading statement, or
omission of a relevant or material fact; or
3. Changes in the development or in the condition of the
site necessitate preparation of a new or amended plan.
I. The commission may issue a stop work order against
any person who violates any provision of this chapter or
any regulation, order, approved plan or management
agreement.
J. Prior to revoking approval of a forest conservation
plan, the commission shall notify the violator in
writing and provide an opportunity for a hearing.
K. If a forest conservation plan is required by this
article, a person may not cut, clear, or grade on the
development site until the commission has approved the
plan or if the person is in violation of an approved
plan.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.6)
16.48.130 Retention and afforestation.
A. A person who applies after January 1, 1993, for
subdivision approval, a
grading permit, or a sediment control permit for an area
of land of forty TWENTY thousand
(40,000 20,000) square feet or more:
1. Shall conduct afforestation on the lot or parcel in
accordance with the following:
a. For the following land use categories, a site with
less than fifteen (15) percent of its net tract area in
forest cover shall be afforested up to at least fifteen
(15) percent of the net tract area:
i. Institutional development areas;
ii. High density residential areas;
iii. Mixed use and planned unit development areas; and
iv. Commercial and Industrial use areas.
2. Shall comply with the standards set forth in COMAR
when cutting into forest cover that is currently below
these afforestation percentages.
B. Comply with the following when cutting into forest
cover that is currently below the afforestation
percentage described in subsection (A)(1) and (2) of
this section:
1. The required afforestation level shall be determined
by the amount of forest existing before cutting or
clearing begins; and
2. Forest cut or cleared below the required
afforestation level shall be reforested or afforested at
a 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.
C. The following trees, shrubs, plants, and specific
areas shall be considered priority for retention and
protection and shall be left in an undisturbed condition
unless the applicant has demonstrated, to the
satisfaction of the commission, that reasonable efforts
have been made to protect them and the plan can not be
reasonably altered:
1. Trees, shrubs, and plants located in sensitive areas
including the one hundred-year floodplain, intermittent
and perennial streams and their buffers, steep slopes,
and critical habitats;
2. Contiguous forest that connects the largest
undeveloped or most vegetated tracts of land within and
adjacent to the site;
3. Trees, shrubs, or plants identified on the list of
rare, threatened, and endangered species of the
United States Fish and Wildlife Service or the state of
Maryland Department of Natural Resources;
UNDER THE ENDANGERED SPECIES ACT OF 1973 IN USC SECTIONS
1531-1544 AND IN 50 CFR 17 OR UNDER COMAR, 08.08.08
4. Trees that:
a. Are part of a historic site;
b. Are associated with a historic structure; or
c. Have been designated by the state or the Department
as a national, state, or county champion tree.
5. Trees having a diameter measured at 4.5 feet above
the ground of:
a. Thirty (30) inches or more; or
b. Seventy-five (75) percent of the diameter, measured
at 4.5 feet above the ground of the current state
champion tree of that species as designated by the state
of Maryland Department of Natural Resources.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.7)
16.48.140 Reforestation.
A. 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 new tract area at which the
reforestation requirement changes from a ratio of
one-fourth acre planted for each acre removed above the
threshold to a ratio of two acres planted for each acre
removed below the threshold.
B. After every reasonable effort to minimize the cutting
or clearing of trees and other woody plants is exhausted
in the development of a subdivision plan and grading and
sediment control activities and implementation of the
forest conservation plan, the forest conservation plan
shall provide for reforestation, or payment into the
forest conservation fund, according to the formula set
forth in subsection C of this section and consistent
with the following forest conservation threshold for the
applicable land use category:
Category of Use Threshold Percentage
AGRICULTURAL AND RESOURCE CONSERVATION 50%
Institutional Development Areas 20%
High Density Residential Areas 20%
Mixed Use and Planned Unit
Development Areas 15%
Commercial and Industrial
Use Areas 15%
C. 1. If the percentage of forest cover remaining on the
net tract area after cutting or clearing are completed,
equals or exceeds the threshold established by the
section, the site shall be reforested at a ratio of
one-fourth acre planted for every acre removed.
2. Each acre of forest retained on the net tract area
above the threshold shall be credited against the total
number of acres required to be reforested under
subparagraph (1) of this subsection.
3. If the percentage of forest cover remaining on the
net tract area after cutting and clearing are completed
is less than the threshold established by this section,
the site shall be reforested at a ratio of two acres
planted for every acre removed.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.8)
16.48.150 Priorities and time requirements for
afforestation and reforestation.
A. The recommended sequence for forest conservation,
after techniques for retaining existing forest on the
site have been exhausted, is as follows:
1. Selective clearing and supplemental planting on site;
2. 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. On-site afforestation, or reforestation, using whips
and shelters;
4. Landscaping of areas under an approved landscaping
plan that establishes a forest that is at least
thirty-five (35) feet wide and covers two thousand five
hundred (2,500) square feet of area;
5. Off-site afforestation, or reforestation, using
transplanted or nurser stock that is greater than 1.5
inches diameter measured at 4.5 feet above the ground;
6. Off-site afforestation, or reforestation, using whip
and shelters.
B. A sequence other than the one described in subsection
(A) of this section may be used for a specific project
if necessary to achieve the objectives of the county
land use plan or county land use policies or to take
advantage of opportunities to consolidate forest
conservation efforts.
C. The following shall be considered priority for
afforestation and reforestation:
1. Establish or enhance forest buffers adjacent to
intermittent and perennial streams to widths of at least
fifty (50) feet;
2. Establish or enhance nonforested areas on one
hundred-year floodplains, when appropriate;
3. Establish or increase existing forested corridors to
connect existing forests within or adjacent to the site.
Where practical, forested corridors should be a minimum
of three hundred (300) feet in width to facilitate
wildlife movement;
4. Establish or enhance forest buffers adjacent to
critical habitats where appropriate;
5. Establish planting to stabilize slopes of twenty-five
(25) percent or greater and slopes of fifteen (15)
percent or greater with a soil K value greater than 0.35
including the slopes of ravines or other natural
depressions;
6. Establish buffers adjacent to areas of differing land
use where appropriate, or adjacent to highways or
utility rights-of-way;
7. Establish forest areas adjacent to existing forests
so as to increase the overall area of contiguous forest
cover, when appropriate; and
8. Use native plant materials for afforestation or
reforestation, when appropriate.
D. A person required to conduct afforestation or
reforestation under this chapter shall accomplish the
reforestation within one year or two growing seasons,
whichever is greater, following the approval and
recording in Frederick County's records of the final
development plat.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.9)
16.48.160 Payment in lieu of afforestation and
reforestation.
A. There is created an "Emmitsburg Forest Conservation
Fund."
B. If a person subject to this article demonstrates to
the satisfaction of the commission that reforestation or
afforestation on-site or off-site cannot be reasonably
accomplished, the person shall contribute money, at a
rate of thirty cents ($0.30) per square foot of the area
of required planting, into the town's forest
conservation fund.
C. Money contributed in lieu of afforestation or
reforestation under this subsection shall be paid within
ninety (90) calendar days of the approval the
preliminary subdivision plat or site plan.
D. Money contributed under this section shall remain in
the account for a period of two years or three growing
seasons, whichever is a greater time period. At the end
of that time, any part that has not been used to meet
the afforestation or reforestation requirements shall be
returned to the person who provided the money.
E. Money contributed under this section shall remain in
the account for a period of two years, or three growing
seasons.
F. Money contributed under this section:
1. May be used only for reforestation and afforestation,
including site identification, acquisition, and
preparation; and no more than twenty (20) percent for
administration; AND FOR MAINTENANCE OF EXISTING
FORESTS THAT ARE PROTECTED BY A LONG TERM PROTECTIVE
AGREEMENT AS DEFINED IN THIS CHAPTER; AND FOR ACHIEVING
URBAN CANOPY GOALS
2. Shall be deposited in a separate forest conservation
fund; and if this cannot be accomplished then the
commission can decide to allow reforestation or
afforestation to occur in the county or watershed in the
state in which the project is located;
3. Shall not revert to the general fund.
G. 1. Except as provided in paragraph (2) of this
subsection, the reforestation or afforestation
requirement under this subsection shall occur within the
corporate limits of the town.
2. If the reforestation or afforestation can not be
reasonably accomplished ON THE SUBJECT PROPERTY, OR
within the corporate limits of the town then the
reforestation or afforestation shall occur on other
Emmitsburg-owned property within Frederick County, OR
ON A PROPERTY THAT HAS BEEN PREVIOUSLY APPROVED AS A
PARTICIPANT IN THE FREDERICK COUNTY FOREST BANKING
PROGRAM.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.10)
16.48.170 Recommended tree species.
A. Tree species used for afforestation or reforestation
shall be native to the county, when appropriate, and
selected from a list of approved species established by
the Commission.
B. The commission shall adopt regulations establishing a
list of tree species native to the county to be used for
afforestation or reforestation.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.11)
16.48.180 Surety for afforestation and reforestation.
A. A person required to conduct afforestation or
reforestation under this article shall furnish surety in
the form of an irrevocable letter of credit, drawn on a
Frederick County bank or other security approved by the
commission. The surety shall:
1. Assure that the afforestation, reforestation, and
associated management plan are conducted and maintained
in accordance with the approved forest conservation
plan;
2. Be in the amount equal to the estimated cost, as
determined by the commission, of afforestation or
reforestation; plus administration and inspection costs
of twenty (20) percent; and
3. Be in a form and of a content approved by the town
attorney.
B. If after one growing season the planting associated
with the afforestation or reforestation meet or exceed
the standards of the forest conservation manual, the
town shall notify the appropriate entity that liability
has been reduced by fifty (50) percent.
C. If after two growing seasons the plantings associated
with the afforestation or reforestation meet or exceed
the standards of the forest conservation manual, the
town shall notify the appropriate entity that liability
has been reduced to zero (0) percent.
D. The local forest conservation program will
incorporate the financial security set forth in this
article and in COMAR 08.19.05.01.B.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.12)
16.48.190 Standards for protecting trees from
construction activities.
A. The town shall adopt standards for the protection of
trees from construction activity that are at least as
effective as the standards set forth in the state of
Maryland Department of Natural Resources' Forest
Conservation Manual.
B. Before cutting, clearing, grading, or construction
begins on a site for which a forest conservation plan is
required by this chapter, the developer shall
demonstrate to the commission that protective devices
have been established.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.13)
16.48.200 Variances.
A. The board of appeals may grant a variance to this
article in accordance with this section.
B. In order to grant a variance to this article, the
board of appeals issue specific written findings of fact
demonstrating that the granting of variance:
1. Was due to special features of the particular site or
other circumstances, and that implementation of this
article would result in unwarranted hardship to an
applicant;
2. Was because the enforcement of these rules would
deprive the applicant of rights commonly enjoyed by
others in similar areas;
3. Would not confer on the applicant a special privilege
that would be denied to other applicants;
4. Was not based on conditions or circumstances which
are the result of actions by the applicant;
5. That the request does not arise from a condition
relating to land or building use, either permitted or
nonconforming, on a neighboring property;
6. Will not adversely affect water quality;
7. Is designed in a manner consistent with the spirit
and intent of this article; and
8. The application to the board of appeals for a
variance to this article and public hearing shall take
place the same as for request for a variance to the
zoning regulations.
C. The board shall make findings that the applicant has
met the requirements in subsections (A) and (B) of this
section before the board may grant a variance.
D. Notice of a request for a variance shall be given to
the Department of Natural Resources within fifteen (15)
days of receipt of a request for a variance.
E. 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 an approval of a variance under Natural
Resources Article, Section 5-1601--5-1612, Annotated
Code of Maryland, or this chapter.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.14)
16.48.210 Violations--Penalties.
A. 1. A person found to be in noncompliance with this
article, regulations adopted under this article, the
forest conservation plan or the associated two-year
management agreement, shall be assessed by the
commission, the penalty of thirty cents ($0.30) per
square foot of the area found to be in noncompliance
with required forest conservation.
2. Money collected under subparagraph (1) of this
subsection shall be deposited in the forest conservation
fund required by Section 16.52.150, and may be used by
the commission for purposed related to implementing this
article.
B. In addition to the provisions under subsection (A) of
this section, a person who violates any provision of
this article or any regulation or order adopted or
issued under this article, is liable for a penalty not
exceeding one thousand dollars ($1,000.00), which may be
recovered in a civil action brought by the department.
Each day a violation continues is a separate violation.
C. The commission may seek an injunction requiring the
person to cease violation of this chapter and take
corrective action to restore or reforest an area.
D. The local program will adopt the enforcement
provisions under COMAR 08.19-.06.03.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.15)
16.48.220 Annual report.
On or before July 1st MARCH 31ST
of each year, the commission shall submit to the Senate
Economic and Environmental Affairs Committee and the
House Environmental Matters Committee, a report on:
A. The number, location, and type of projects subject to
the provisions of this article;
B. The amount and location of acres cleared, conserved,
and planted in connection with a development project;
C. The amount of reforestation and afforestation fees
and noncompliance penalties collected and expended; and
D. The costs of implementing the forest conservation
program.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.16)
16.48.230 Biennial review by the Department of
Natural Resources.
The commission shall submit the necessary documentation
to comply with COMAR 08-.19.02.04.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.17)
plementing the forest conservation program.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.16)
16.48.230 Biennial review by the Department of
Natural Resources.
The commission shall submit the necessary documentation
to comply with COMAR 08-.19.02.04.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.4.17)
IF THE DEPARTMENT NOTIFIES A LOCAL AUTHORITY THAT THE
AUTHORITY’S PROGRAM IS IN NONCOMPLIANCE, AND THE LOCAL
AUTHORITY HAS FAILED TO COMPLY WITH THE TERMS OF THE
NOTICE WITHIN 90 DAYS, THE DEPARTMENT MAY DO ONE OF THE
FOLLOWING:
(1) ASSUME REVIEW AND APPROVAL OF ALL FOREST
CONSERVATION PLANS AND FOREST MITIGATION BANK
APPLICATIONS WITHIN THE JURISDICTION OF THE LOCAL
AUTHORITY UNTIL THE DEFICIENCIES ARE CORRECTED.
(2) ON A FINDING BY AN AUDITOR MADE IN CONSULTATION WITH
THE OFFICE OF THE ATTORNEY GENERAL THAT A LOCAL
AUTHORITY HAS MISAPPROPRIATED LOCAL FOREST CONSERVATION
FUNDS, THE DEPARTMENT MAY REQUIRE THE LOCAL AUTHORITY TO
SUBMIT PAYMENT TO THE STATE FOREST CONSERVATION FUND FOR
THE AMOUNT OF ANY MISAPPROPRIATED FUNDS, AND
(3) REQUEST THAT THE ATTORNEY GENERAL INVESTIGATE
PAYMENTS AND EXPENDITURES OF FUNDS COLLECTED BY THE
LOCAL AUTHORITY UNDER THIS SUBTITLE.
Article 5.
Short and Long Term Protective Agreements
16.48.240 Short-term protective agreements.
A. Maintenance Agreements.
1. Application. A person required to conduct
afforestation or reforestation under a local or state
program shall include in the forest conservation plan a
binding maintenance agreement for the length of two
years, as specified in the forest conservation manual.
2. Approval procedures and timing shall be consistent
with the procedures provided in the local program or as
provided in COMAR 08.19.04.04.
3. The maintenance agreement shall detail how the areas
designated for afforestation or reforestation will be
maintained to ensure protection and satisfactory
establishment of forest and shall follow the standards
provided in Chapter 3 of the forest conservation manual.
4. The person required to conduct the afforestation or
reforestation, after this referred to as the "obligee,"
shall present evidence of a legal right to implement the
proposed maintenance agreement on a selected site by
providing:
a. An executed deed conveying title to a selected site
to the obligee;
b. An executed conservation easement agreement;
c. Written evidence of the landowners consent to the use
of a selected site;
d. A fully executed option agreement, long-term lease
agreement, or contract of sale for a selected site; or
e. Other written evidence of a possessory or ownership
interest in a selected site.
5. The commission or the local authority shall be a
signatory to the maintenance agreement, or shall be
designated a third-party beneficiary of the agreement.
6. The commission or local authority may not release a
bond or end monitoring without receipt of a legally
binding deed, long-term lease, or conservation easement
agreement on those lands where afforestation or
reforestation will occur.
7. The maintenance agreement shall provide for access by
the department or local authority to the afforestation
or reforestation site.
B. Bonding.
1. Application.
a. A person required to conduct afforestation or
reforestation, or to deposit money into a state or local
fund under the state or local program shall include a
bond or other financial security as an element of a
forest conservation plan.
b. This section does not apply to agencies of any
federal, state, county, or municipal government.
2. Requirements. A financial security shall be furnished
in the form of:
a. A bond which shall be made payable to the department
or local authority;
b. An irrevocable letter of credit which shall:
i. Be equivalent to the required bond,
ii. Be issued by a financial institution authorized to
do business in Maryland,
iii. Expressly state that the total sum is guaranteed to
be available and payable directly to the department on
demand in the event of forfeiture, and
iv. Be in force until all mitigation for reforestation
and afforestation and monitoring requirements have been
fulfilled to the satisfaction of the department or local
authority or until all contributions have been made to
the state or local fund; or
c. Other security approved by the Department or local
authority.
3. The financial security shall:
a. Ensure that:
i. The afforestation, reforestation and associated
maintenance agreements are conducted and maintained in
accordance with the approved forest conservation plan,
or
ii. Contributions have been made to the State or local
fund;
b. Be in the amount equal to the estimated cost of
afforestation and reforestation, or the amount of the
contribution due, as determined by the department or
local authority;
c. Be in a form and content approved by the department
or local authority.
4. The value of the financial security:
a. Shall be based on:
i. The cost to perform all work required by the
afforestation or reforestation plan if the work had to
be performed by or contracted out by the department or
local authority, or
ii. When appropriate, the amount due for a fund
contribution;
b. May be adjusted according to the actual cost of
mitigation for afforestation and reforestation or, if
the cost of future mitigation work changes, the
department or local authority shall notify the obligee
of a proposed adjustment and proved an opportunity for
an informal conference on the adjustment; and
c. May be reduced if the obligee proves to the
department or local authority that the costs to complete
the mitigation project have been reduced.
5. A surety bond or other alternative form of security
may not be canceled by the surety, bank, or other
issuing entity unless both of the following conditions
are satisfied:
a. The surety notifies the department and the obligee of
its intent to cancel the bond, in writing, by registered
mail, not less than ninety (90) days before
cancellation; and
b. At least forty-five (45) days before the cancellation
date indicated in the notice, the obligee files a
commitment from a surety, bank or other issuing entity
to provide a substitute security which will be effective
on the cancellation date indicated in the notice.
6. After one growing season, the person required to file
a bond or other financial security under this regulation
may request reduction of the amount of the bond or other
financial security by submitting a written request to
the department with a justification for reducing the
bond or other financial security amount, including
estimated or actual costs to ensure that the
afforestation or reforestation requirements are met.
7. The department shall determine whether a lesser
amount is sufficient to cover the cost of afforestation
or reforestation, taking into account the following:
a. The number of acres;
b. The proposed method of afforestation or
reforestation;
c. The cost of planting materials or replacement
materials;
d. The cost of maintenance of the afforestation or
reforestation project; and
e. Other relevant factors.
8. If, after two growing seasons or one year, whichever
is greater, the planting associated with the
afforestation or reforestation meet or exceed the
standards of the forest conservation manual, the
remaining amount of the cash bond, letter of credit,
surety bond, or other security shall be returned or
released.
9. Bond Release.
a. The bond shall be released on receipt of written
notice from the department or local authority, if
applicable, stating that all afforestation or
reforestation requirements have been met.
b. The written notice shall be sent at the end of the
required two-year monitoring and management period, as
provided in the maintenance agreement.
c. If the department fails to send written notice within
sixty (60) days after the end of the monitoring and
management period, the bond shall be automatically
released.
10. Financial Security Forfeiture.
a. The bond or other financial security may be subject
to forfeiture if the obligee fails to comply with:
i. Revocation of the forest conservation plan;
ii. An administrative order; or
iii. An element of the afforestation or reforestation
plan.
b. The commission or local authority shall notify the
obligee, by certified mail, or the intention of the
department or local authority to initiate forfeiture
proceedings.
c. The obligee has thirty (30) days from receipt of the
notice of forfeiture to show cause why the bond or other
financial security may not be forfeited.
d. If the obligee fails to show cause, the bond or other
financial security shall be forfeited.
C. A local program may substitute for the bonding
provisions of subsection (B) of this regulation a
process that is consistent with the state bonding
procedure.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.5.1)
16.48.250 Long-term protective agreements.
A. An applicant under the Emmitsburg program shall have
in effect at all times approved long-term protective
measures as provided for in Natural Resources Article,
Section 5-1607, Annotated Code of Maryland, to retain as
forest all land forested, afforested, or reforested
under this chapter. A local program will contain
provisions for long-term protective measures including
subsection (B) of this regulation.
B. Approved Forest Management Plan.
1. Procedure for Approval.
a. An application for approval of a forest management
plan shall include all information required in the
forest conservation manual.
b. The forest management plan:
i. Shall be legally binding from the date of approval;
ii. Shall be prepared by a licensed professional
forester;
iii. Shall be submitted to the Department of Natural
Resources forester assigned to the county where the
property is located; and
iv. May be amended periodically, as provided for in
subsection (B)(2) of these regulations.
c. The Department of Natural Resources forester shall
review the plan to ensure that it is complete and
consistent with the State or local program.
d. The department shall notify the applicant whether the
forest management plan has been approved.
2. Procedure for Amendment of an Approved Forest
Management Plan.
a. An approved forest management plan may be amended if
there is a change in site conditions or landowner
objectives.
b. Amendments shall be prepared by a licensed
professional forester.
c. The amendment shall be submitted to the Department of
Natural Resources forester assigned to the county where
the property is located.
d. The Department of Natural Resources forester shall
review the amendment to ensure that it is complete and
consistent with the state or local program.
e. The Department of Natural Resources shall notify the
applicant as to whether the amendment has been approved.
f. The applicant shall sign the amendment.
C. Forest Conservation and Management Agreement. An
applicant may satisfy the requirement for long-term
protection under Natural Resources Article, Section
5-1607(e), Annotated Code of Maryland, by executing a
forest conservation and management agreement, as
provided in Tax-Property Article, Section 8-211,
Annotated Code of Maryland, and COMAR 08.07.03.
D. Other Legally Binding Protective Agreements.
1. Other legally binding protective agreements include:
a. Covenants running with the land;
b. Deed restrictions;
c. Conservation easements; and
d. Land trusts.
2. Other legally binding agreements shall provide:
a. Protection for land forested, afforested, or
reforested under Natural Resources Article, Section
5-1601--5-1612, Annotated Code of Maryland, and this
chapter; and
b. Limitation on the uses of forest to those that are
consistent with forest conservation.
E. An applicant may include in a forest conservation
plan another long-term protective measure if the
applicant demonstrates to the satisfaction of the
department that the measure will provide for the
long-term protection of the areas retained, afforested,
or reforested under this chapter.
F. Procedure for a Timber Harvesting Plan.
1. An individual may harvest timber on forested,
reforested, or afforested areas protected under an
approved forest conservation plan provided that the
harvest:
a. Is consistent with the intent of an approved forest
management plan, forest conservation management
agreement, or other long-term protective agreement;
b. Is subject to a timber harvest plan:
i. Prepared by a licensed professional forester;
ii. Submitted to the local forestry conservancy district
board for review and approval;
iii. That remains in effect for two years; and
c. Is consistent with the intent and requirements of the
approved forest conservation plan.
2. The local forest conservancy district board shall
notify the individual whether the timber harvest plan
under Section 16.48.250 (F)(1) has been approved.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.5.2)
Article 6.
Additional Requirements
16.48.260 Qualified professionals.
A. An individual may prepare a forest stand delineation
or a forest conservation plan, if the individual:
1. Is a licensed forester;
2. Is a licensed landscape architect; or
3. Meets the requirements of subsection (B) of this
regulation.
B. An individual may be approved by the department as a
qualified professional if the individual:
1. Possesses a four-year degree in the natural resources
sciences, natural resources management, or landscape or
environmental planning;
2. Has the following:
a. Two years of professional experience in natural
resources sciences, natural resources management,
landscape planning or environmental planning, or the
equivalent, as determined by the state, or
b. A graduate degree in natural resources and one year
of professional experience;
3. Has the ability to meet the obligations required by
the forest conservation manual to prepare a forest stand
delineation and a forest conservation plan; and
4. Satisfactorily completes a forest conservation course
offered by the department.
C. The department shall offer forest conservation
courses on a regular basis, which shall demonstrate how
to:
1. Develop and interpret a forest stand delineation and
forest conservation plan according to criteria stated in
the forest conservation manual;
2. Prepare and interpret soils, topography, floodplain,
wetlands and site maps;
3. Prepare afforestation and reforestation plans
according to criteria stated in the forest conservation
manual;
4. Prepare a sketch map of a site, showing areas of
forest retention, proposed reforestation, or
afforestation;
5. Identify and evaluate protection measures that may be
appropriate for forested areas that are sensitive to
disturbance;
6. Identify flora and fauna, including trees, woody
shrubs, plants and wildlife;
7. Diagnose and treat forest pest and disease problems;
and
8. Understand ecosystem interactions including:
a. Water regime impacts,
b. Soil variations as they affect existing trees and
species selection for afforestation and reforestation,
c. Wildlife habitats,
d. Multi-storied plant canopies, and
e. Forest successional stages.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.6.1)
16.48.270 Training.
A. Seminars for Local Officials.
1. The department shall provide a training program to
assist local officials in the development of local
programs, including one seminar per year for each
geographic region of the state for the calendar years of
1992 and 1993.
2. For the purposes of this training program the
geographic regions are:
a. Central Region: Baltimore, Carroll, Cecil, Hartford,
Kent and Queen Anne's counties and Baltimore City;
b. Eastern Region: Caroline, Dorchester, Somerset,
Talbot, Wicomico, and Worcester counties;
c. Southern Region: Anne Arundel, Calvert, Charles,
Howard, Montgomery, Prince George's and St. Mary's
counties; and
d. Western Region: Allegany, Frederick, Garrett, and
Washington counties.
B. Additional Seminars.
1. The department may offer additional annual seminars
to assist local officials, developers, planners,
surveyors, engineers, foresters, biologists and
landscape architects in the development, review or
approval of forest stand delineations and forest
conservation plans.
2. The department may sponsor additional seminars in
conjunction with other professional and trade
organizations.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.6.2)
16.48.280 Enforcement.
A. Application.
1. The provisions of this chapter apply to a person
under the state program making application for a
subdivision or project plan, grading or sediment control
permit, on areas forty TWENTY
thousand (40,000 20,000) square
feet or greater.
2. A local authority may adopt the provisions of this
chapter for the enforcement of a local program.
B. Complaints and Orders.
1. In addition to sanctions authorized by Natural
Resources Article, Section 5-1612, Annotated Code of
Maryland, the Department may serve a written
complaint on an alleged violator if the department
determines that there has been a violation of:
a. A provision of Natural Resources Article, Section
5-1601--5-1611, Annotated Code of Maryland;
b. A regulation of this chapter;
c. A forest stand delineation or forest conservation
plan;
d. An administrative order.
2. The complaint shall:
a. Identify the violator and the location of the
violation;
b. State the provision violated;
c. State the specific facts on which the complaint is
based; and
d. Provide an opportunity to request a hearing to
contest the complaint.
3. Corrective Action.
a. At any time, including during an enforcement action,
the department may issue an administrative order
requiring the violator to take correction action within
a certain time period.
b. The corrective action may include an order to:
i. Stop the violation;
ii. Stabilize the site;
iii. Stop all construction work at the site of a
regulated activity;
iv. Restore or rectify unlawfully cleared areas; or
v. Submit a written report or plan concerning the
violation.
4. Service.
a. A complaint, order, or other administrative notice
issued by the department shall be served:
i. On the violator personally;
ii. On the violator's agent at the activity site; or
iii. By certified mail to the violator's last known
address.
b. An order issued under this regulation is effective
immediately, according to its terms, when it is served.
C. Hearings.
1. The department shall give notice and hold a hearing
under this chapter in conformance with State Government
Article, Section 10-210--10-217, Annotated Code of
Maryland.
2. Within ten calendar days of receiving a complaint,
order, or notice under this chapter, the violator may
request a hearing, in writing.
3. If a person has been served with an order for
corrective action, the person may request a stay
conjunction with a request for a hearing.
4. A request for stay may be heard before or during a
hearing on the complaint. At the request of a violator,
a request for stay may be heard within ten business days
of the department's receipt of the request.
5. Administrative Action for a Forest Conservation Plan
or Bond. The department may suspend or revoke a forest
conservation plan or forfeit a bond on a forest
conservation plan on failure of the violator to comply
with the requirements of an administrative order.
6. Statutory Remedies. The provisions of this chapter
may not be construed to limit or affect the authority of
the department to proceed against violators under
Natural Resources Article, Section 5-1612, Annotated
Code of Maryland.
D. Plan Suspension and Revocation. The department may
suspend or revoke a plan after notice to the violator
and opportunity for a hearing has been provided if the
department determines that one or more of the following
has occurred:
1. Failure of a violator to post a bond required under
COMAR 0819.0B5.01B;
2. Failure to comply with the requirements of an
administrative action or order issued under this
chapter, or for a violation of Natural Resources
Article, Section 5-1601--5-1612, Annotated Code of
Maryland;
3. Misrepresentation in the application process or
failure to disclose a relevant or material fact;
4. Violation of a forest conservation plan requirement;
5. Substantial deviation from the conditions,
specifications, or requirements of a plan;
6. Changes in site conditions, new information, or
amended regulatory requirements necessitate revocation
before a person's right under a plan have vested.
E. Notice. Except as provided under subsection (G) of
this section, the department may not suspend or revoke a
forest conservation plan unless the department first
gives the violator written notice by certified mail of
the specific facts that warrant suspension or
revocation, and an opportunity to be heard.
F. Contested Case Hearings.
1. On receipt of written notice to suspend or revoke a
forest conservation plan, the violator has ten calendar
days to request a contested case hearing.
2. A hearing under this regulation shall be conducted in
conformance with State Government Article, Section
10-201--10-217, Annotated Code of Maryland.
3. If the department does not receive a request for a
hearing, the forest conservation plan shall be suspended
or revoked.
G. Emergency Action.
1. The department may order the immediate suspension of
a forest conservation plan if the department finds that
the public health, safety or welfare imperatively
requires the emergency suspension.
2. The department shall promptly give the violator
written notice that the emergency action has been taken.
3. A notice of emergency action shall include a
statement of:
a. Specific facts on which the emergency suspension is
based; and
b. The violator's opportunity to be heard.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.6.3)
Article 7.
Applicability
16.48.290 Areas which this chapter does not apply.
A. Any preliminary plan of subdivision or any grading or
sediment control plan approved before July 1, 1991; and
B. Any planned unit development that by December 31,
1991, has:
1. Met all local requirements for planned unit
development approval; and
2. Obtained initial development plan approval by the
Department.
(Ord. 93-1 § 1 (part): prior code Appx. B Art. XVI §
16.7)
Be it further resolved, enacted and ordained
that this Ordinance shall take effect on the date on
which the Mayor approves the Ordinance after passing by
the Board of Commissioners or on the date on which the
Board of Commissioners pass the Ordinance over the veto
of the Mayor.
PASSED
this 17th day of March, 2014 by a vote of 4
for, 0 against,
1 absent, and 0 abstain. Commissioner
Blanchard absent.
ATTEST:
By: /s/ Donna DesPres, Town Clerk
Board of Commissioners
By: /s/ Tim O'Donnell, President
Approved this 17th day of March, 2014.
By: /s/ Donald Briggs, Mayor
