(A) In general. In the implementation of any subdivision or development project, priority shall be given:
(1) First, to conservation of existing on-site forest areas according to the sequence listed in subsection (B) of this section;
(2) Second, to forestation of on-site areas according to the sequence listed in subsection (C) of this section;
(3) Third, to forestation or mitigation off- site according to the sequence listed in subsection (D) of this section.
(B) Priority areas for on-site conservation.
(1) Trees, shrubs, and plants in priority areas shall be retained and protected and shall be left in an undisturbed condition. The applicant must demonstrate to the satisfaction of the Department that reasonable efforts have been made to protect them and that the plan cannot reasonably be altered. Priority areas include:
(a) Hydrologically-sensitive areas;
(b) Forest segments that connect large forested or heavily vegetated tracts of land within or adjacent to the site;
(c) Areas that contain trees, shrubs, or plants identified as rare, threatened, or endangered under the Federal Endangered Species Act of 1973 in 16 U.S.C. §§ 1531-1544 and in 50 CFR 17, or under COMAR 08.03.08;
(d) Critical habitat areas for sedentary animal species; identified as threatened, endangered or in-need-of-conservation under the Maryland Nongame and Endangered Species Conservation Act, Md. Code Ann., Natural Resources Article, §§ 10-2A-01 through 10-2A-09.
(e) Nonhazardous trees that:
1. Are part of a historic site;
2. Are associated with a historic structure;
3. Have been designated by the state or the Department as a national, state, county, or municipal champion tree; and
4. Are specimen trees, or are 75 percent or more of the diameter, measured at 4.5 feet above the ground, of the current state champion tree of that species as designated by the Department of Natural Resources.
(2) Any of the priority areas listed in subsection(B)(1) of this section that are not retained shall be deemed a modification requiring approval under § 1-21-21 of this chapter, unless the exception is authorized by § 1-19-9.110, as amended, of the Zoning Ordinance.
(3) The following trees or forested areas shall be retained and protected unless the applicant has demonstrated to the satisfaction of the Department that reasonable efforts have been made to protect them and the plan cannot reasonably be altered:
(a) Forest areas that buffer significantly noncompatible land uses, such as industrial and residential, as determined by the Department; and
(b) Other forested areas that because of their size, location, species composition, or quality are deemed by the Department as being worthy of conserving permanently.
(C) Priority sequence for on-site forestation. After every reasonable effort to minimize the cutting and clearing of trees and other woody plants in on-site priority areas listed in § 1-21-40(B) has been exhausted, the following areas shall be considered the priority sequence for on-site forestation:
(1) Buffers adjacent to intermittent and perennial streams to widths of at least 50 feet from stream banks;
(2) Areas in 100 year floodplains and all other floodplains listed in the Zoning Ordinance, § 1-19-9.100;
(3) Corridors to connect existing forests within or adjacent to the development site with a minimum width of 300 feet where practical to facilitate wildlife movement;
(4) Buffers adjacent to critical habitats where appropriate;
(5) 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) Areas identified as green infrastructure network and/or sensitive species areas in the green infrastructure sector of the Livable Frederick Master Plan;
(7) Buffers between differing land uses that are deemed to be noncompatible by the Department or buffers adjacent to highways; and
(8) Lands adjacent to existing forests to increase the overall area of contiguous forest cover, when appropriate.
(D) Priority sequence for forestation or mitigation off-site. After every reasonable effort has been made to minimize the clearing of trees and other woody plants in on-site priority areas listed in § 1-21-40(B), and after every reasonable effort has been made to afforest or reforest priority areas listed in § 1-21-40(C), the following shall be considered the priority sequence for forestation or mitigation off-site:
(1) Purchase of credits through the Frederick County Forest Banking Program;
(2) Forestation of hydrologically-sensitive areas, preferably in agriculturally zoned or used land;
(3) Protection of existing off-site forest at a 1:2.5 ratio, as provided in subsection (G) of this section, in areas closely associated with streams, wetlands, or floodplains, preferably in agriculturally zoned or used land, when such land is not already substantially protected by the Zoning Ordinance or other long-term protective instruments in perpetuity; and
(4) Payment into the fee-in-lieu program.
(E) Flexibility of priorities. A sequence other than the one described in subsections (C) and (D) of this section may be used for a specific project, if necessary, to achieve the objectives of the County Comprehensive Plan or county land use policies or to take advantage of opportunities to consolidate forest conservation efforts.
(F) Minimum forest areas.
(1) Forest areas to be retained or created by means of forestation shall be a minimum of 10,000 square feet and shall be at least 35 feet wide. Disjointed or noncontiguous forest areas shall be used only when more continuous forest areas cannot be practically preserved or created, as determined by the Department.
(2) Forest areas that utilize miscellaneous credits as provided in § 1-21-44 shall be a minimum of 2,500 square feet for each area, except for individual trees in nonforested areas, which may be credited on a tree-by-tree basis.
(G) Off-site existing forest mitigation. When off-site existing forest is used to mitigate forestation requirements, the applicant must mitigate at a 1:2.5 ratio, meaning that for every 1 acre of required forestation, 2.5 acres of off-site existing forest must be protected and conserved.
(H) Easement restrictions. No FRO easements (long-term protection) shall be allowed:
(1) Over septic areas or wells;
(2) On lots less than 40,000 square feet. However, forest in these areas may be protected as “tree save area,” as provided in § 1-21-44; or
(3) Over existing preservation or utility easements.
(Ord. 01-20-294, 9-25-2001; Ord. 08-26-502, 10-14-2008; Ord. 09-26-530, 9-29-2009; Ord. 11-19-585, 7-28-2011; Ord. 14-23-678, 11-13-2014; Bill No. 17-17, 2-28-2018; Bill No. 20-08, 7-21-2020)