Sec. 22A-1. Short title.

*Editor's note—This Chapter is cited in Maryland-National Capital Park and Planning Commission v. Mardirossian, 184 Md. App. 207, 964 A.2d 713 (2009).

2023 L.M.C., ch. 6, §§ 2 and 3, state:

Sec. 2. Expedited Effective Date. This Act is necessary for the immediate protection of the public health, safety, or interest and must take effect on the day that it becomes law.

Sec. 3. Transition. Any amendment to Chapter 22A under Section of this Act does not apply to: (a) a preliminary or final forest conservation plan submitted before this Act took effect; or (b) a County highway project if, prior to the effective date of this Act, funding has been appropriated for the project, and the project has been submitted to the Planning Board under mandatory referral.

2021 L.M.C., ch. 1, § 2, states: Sec. 2. Transition. Section 1 of this Act must not apply to a county highway project if, prior to the effective date of the Act, construction funding has been appropriated for the project, and the project has been submitted to the Planning Board under mandatory referral.

2010 L.M.C., ch. 6, § 2(b), states: Any amendment to County Code Chapter 22A made by Section 1 of this Act applies to any enforcement action that begins after this Act takes effect [ March 26, 2010] even if the alleged violation on which the enforcement action is based was committed before this Act took effect.

2005 L.M.C., ch. 32, § 2, repeals 1992 L.M.C., ch. 4, § 2, set forth below.

1992 L.M.C., ch. 4, §§ 2, 3, 4 and 5 read as follows (1992 L.M.C., ch. 4, § 3 was amended by 2013 L.M.C., ch. 4, § 2):

Sec. 2. Setting of in lieu fees and maximum administrative civil penalty.

Until altered by law or resolution, the fee in lieu of afforestation or reforestation is 30 cents per square foot of the area of required planting and the maximum administrative civil penalty authorized is $1.00 per square foot of the area found to be in noncompliance.

Sec. 3. Contingency on Commission resolution.

Until express authority for Planning Board administration and enforcement of Article II, as enacted in Section 1 of this Act, is provided under State law, this Act is contingent on and does not become effective until the Maryland-National Capital Park and Planning Commission adopts a resolution under Section 20-207 of the Land Use Article of the Maryland Code allocating the functions provided under this Act to the Montgomery County Planning Board.

Sec. 4. Administrative Actions.

The Chief Administrative Officer is expressly authorized to initiate all necessary budgetary, personnel, and other administrative actions to implement this Act. Until a County Arborist is appointed, the responsibility of the Arborist under this Act to approve proposed commercial logging and timber harvesting operations, review proposed variances, and review certain reports, must be exercised by the Director of the Department of Environmental Protection or the Director's designee.

Sec. 5. Effective Date; Delayed Provisions.

Except as provided in Section 3 and this Section, this Act takes effect 91 days following the date that it becomes law, Section 22A-26 (Regulations) as enacted by Section 1 of this Act takes effect on that date. All other provisions of this Act take effect on July 1, 1992.

These requirements by State law: 1992, ch. 643, and Park and Planning Resolution No. 92-07.

Article I. General.

Sec. 22A-1. Short title.

This Chapter may be referred to as the Montgomery County Forest Conservation Law. (1992 L.M.C., ch. 4, § 1)

Sec. 22A-2. Findings and purpose.

(a) Findings. The County Council finds that trees and forest cover constitute an important natural resource. Trees filter groundwater, reduce surface runoff, help alleviate flooding, and supply necessary habitat for wildlife. They cleanse the air, offset the heat island effects of urban development, and reduce energy needs. They improve the quality of life in a community by providing for recreation, compatibility between different land uses, and aesthetic appeal. The Council finds that tree loss as a result of development and other land disturbing activities is a serious problem in the County.

(b) Purpose. The purpose of this Chapter is to:

(1) save, maintain, and plant trees and forested areas for the benefit of County residents and future generations;

(2) establish procedures, standards, and requirements to minimize tree loss as a result of development and to protect trees and forests during and after construction or other land disturbing activities;

(3) establish procedures, standards, and requirements for afforestation and reforestation of land subject to an application for development approval or a sediment control permit;

(4) establish a fund for future tree conservation projects, including afforestation and reforestation; and

(5) provide a focused and coordinated approach for County forest conservation activities. (1992 L.M.C., ch. 4, § 1)

Sec. 22A-3. Definitions.

In this Chapter, the following terms have the meanings indicated:

Administrative subdivision means a plan for a proposed subdivision prepared and submitted for approval by the Planning Director under Division 50.6 of Chapter 50 before preparation of a subdivision plat.

Afforestation means the establishment of forest or tree cover in accordance with this Chapter on an area from which it has always or very long been absent, or the planting of open areas which are not in forest cover.

Agricultural activity means farming activities conducted as part of a recognized commercial enterprise, including: plowing, tillage, cropping, installation of best management practices, seeding, cultivating, and harvesting for production of food and fiber products (except commercial logging and timber harvesting operations), the grazing and raising of livestock, aquaculture, sod production, and the cultivation of orchard, nursery, and other products.

Agricultural and resource area means an undeveloped area zoned for a density of less than or equal to one dwelling unit per 5 acres.

Biohealth priority campus plan means a plan that qualifies as a Biohealth Priority Campus under Section 3.5.8.E of Chapter 59 and is approved under Section 7.3.6 of Chapter 59.

Champion tree means the largest tree of its species in the County, as designated by the County Forest Conservancy District Board or its designee.

Commercial and industrial uses means manufacturing operations, office complexes, shopping centers, and other similar uses and their associated storage areas, yards, and parking areas.

Commercial logging or timber harvesting operation means the cutting and removing of tree stems from a site for commercial purposes, leaving the root mass intact.

Conditional use means a use approved under Section 7.3.1 of Chapter 59.

Declaration of intent means a signed and notarized statement by a landowner that the cutting of trees on the landowner's property:

(1) is for purposes exempted under this Chapter; and

(2) will not circumvent the requirements of this Chapter.

Developed area means the portion of a property which has been altered from its natural state by the construction of a building, recreational facility, road or alley, rail line, athletic field, stormwater management facility, parking lot, utility or similar improvement.

Developed property means a property that contains a developed area.

Development application means an application, as described in Section 22A-4, filed with the Planning Board, Planning Director, Board of Appeals, Hearing Examiner, or Department of Permitting Services, for plan approval or sediment control permit.

Development plan means a plan or an amendment to a development plan approved under Section 7.7.1.B of Chapter 59 or a floating zone plan approved under Section 7.2.1 of Chapter 59 or referred to in Section 7.7.1.B of Chapter 59.

Development project completion means the date or event identified in the forest conservation plan agreement, but no later than the date on which the first use-and-occupancy permit is issued for the development (or activity) subject to the preliminary plan of subdivision or sediment control permit or, if a use-and-occupancy permit is not required, the date on which the final building inspection or sediment control inspection (for activities not involving building) is conducted by the Department of Permitting Services. A staged development may have more than one completion date.

District Council means the County Council in its capacity, under Division II of the Land Use Article of the Maryland Code, to act on planning and zoning for the Maryland-Washington Regional District.

Environmental buffer means perennial, intermittent, or ephemeral streams/channels and their associated buffers; wetlands and their associated buffers; hydraulically connected steep slopes according to the latest version of the environmental guidelines or an appropriate master plan; and floodplains.

Environmental guidelines mean the Guidelines for Environmental Management of Development in Montgomery County, Maryland (M-NCPPC), as amended.

Equestrian Facility means ny building, structure, or land area that is primarily used for the care, breeding, boarding, rental, riding, sport eventing, or training of horses or ponies, the teaching of equestrian skills, or competitive equestrian events.

Floodplain (100-year) 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 100-year frequency storm event, or a 100-year flood.

Forest means a biological community dominated by trees and other woody plants (including plant communities, the understory, and forest floor) covering a land area which is 10,000 square feet or greater and at least 50 feet wide. However, minor portions of a forest stand which otherwise meet this definition may be less than 50 feet wide if they exhibit the same character and composition as the overall stand. Forest includes:

(1) areas that have at least 100 live trees per acre with at least 50 percent of those trees having a 2 inch or greater diameter at 4.5 feet above the ground; and

(2) forest areas that have been cut but not cleared.

Forest does not include an orchard.

Forest conservation means the retention of existing forest or the creation of new forest at the levels set by the Planning Board or Planning Director.

Forest conservation fund means a special fund maintained by the County to be used for purposes specified in Section 22A-27.

Forest conservation plan means a plan approved under Article II.

Forest conservation threshold means the percentage of the net tract area at which the reforestation ratio increases as specified in Section 22A-12.

Forest cover means the area of a site meeting the definition of forest.

Forest edge means the transition zone from an area of forest to fields, meadows, yards, or other open spaces. Forest edge includes forest that was previously interior forest, but has become forest edge due to clearing.

Forest mitigation banking means the intentional restoration or creation of forests undertaken expressly to provide credits for afforestation or reforestation requirements.

Forest stand delineation means the evaluation of existing vegetation in relation to the natural resources on a site proposed for development or land disturbing activities.

High-density residential area means an area zoned for densities greater than one dwelling unit per 40,000 square feet, including both existing and planned development and their associated infrastructure, such as roads, utilities, and water and sewer service.

Institutional development area means land occupied by uses such as schools, colleges and universities, military installations, transportation facilities, utility and sewer projects, government offices and facilities, fire stations, golf courses, recreation areas, parks, cemeteries, and religious institutions.

Land disturbing activities:

(1) has the same meaning as in Chapter 19; and

(2) means cutting, clearing, or grading of more than 5,000 square feet of forest.

Linear project means a project whose configuration is elongated with nearly parallel sides and used to transport a utility product or public service not otherwise to be constructed or improved as part of an application for subdivision approval, such as electricity, gas, water, sewer, communications, trains, pedestrians, and vehicles. A linear project may traverse fee simple properties through defined boundaries or through easement rights.

Lot means for the purpose of this Chapter a tract 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 under Chapter 50, without an approved forest stand delineation and forest conservation plan.

Mandatory referral means the required review by the Planning Board of projects or activities to be undertaken by government agencies and private and public utilities under Section 20-301 of the Land Use Article of the Maryland Code.

Medium-density residential area means an area zoned for a density greater than one dwelling unit per 5 acres and less than or equal to one dwelling unit per 40,000 square feet, including both existing and planned development and their associated infrastructure, such as roads, utilities, and water and sewer service.

Minor subdivision means a plan for a proposed subdivision prepared and submitted for approval by the Planning Director under Division 50.7 of Chapter 50.

Mixed-use development means a single, relatively high-density development project, usually commercial in nature, which includes 2 or more types of uses.

Municipal corporation means a municipality without planning and zoning authority or which has assigned its responsibilities under Section 5-1603(a) of the Natural Resources Article of the Maryland Code to the County.

Natural regeneration means 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.

Net tract area means the total area of a tract, including both forested and unforested areas, to the nearest 1/10 acre, reduced by road or utility rights-of-way which will not be improved as part of the development application. However, in agriculture and resource areas, net tract area is the portion of the total tract for which land use will be changed or will no longer be used for primarily agricultural activities. For a linear project, net tract area is the area of a right-of-way width or the limits of disturbance as shown on the development application, whichever is greater.

Obligee means a person obligated under a financial security instrument to meet certain regulatory requirements under Article II.

Park development plan means an application submitted by the Montgomery County Parks Department for the construction and development of a specific park.

Patuxent Primary Management Area (PMA) means an area of environmental importance within the Patuxent River watershed, as further defined in the environmental guidelines.

Person means:

(1) the federal government, the state, any county, municipal corporation, or other political subdivision of the state, or any of their units,

(2) an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind,

(3) any partnership, firm, common ownership community or other homeowners' association, public or private corporation or any of their affiliates or subsidiaries, or

(4) any other entity.

Planned unit development means a development comprised of a combination of land uses or varying intensities of the same land use, having at least 20% of the land permanently dedicated to green area, and under an integrated plan that provides flexibility in land use design approved by the Planning Board under Section 7.2.1 of Chapter 59 or referred to in Section 7.7.1.B of Chapter 59.

Planning Board means the County Planning Board of the Maryland-National Capital Park and Planning Commission.

Planning Director means the Director of the Montgomery County Park and Planning Department, or the Director's designee.

Preliminary plan of subdivision means a plan for a proposed subdivision prepared and submitted for approval by the Planning Board under Division 50.4 of Chapter 50 before preparation of a subdivision plat.

Project plan means an amendment to a project plan referred to in Section 7.7.1.B of Chapter 59.

Public utility means any:

(1) transmission line or electric generating station; or

(2) water, sewer, electric, gas, telephone, and cable service line.

Reforestation or reforested means the creation of a biological community dominated by trees and other woody plants (including plant communities, the understory, and forest floor) which is at least 10,000 square feet in area and 50 feet wide, and containing at least 100 live trees per acre, with at least 50 percent of those trees having the potential of attaining a 2 inch or greater diameter measured at 4.5 feet above the ground within 7 years. Reforestation for a linear project which involves overhead transmission lines may consist of a biological community dominated by trees and woody shrubs with no minimum height or diameter criteria.

Restoration plan means a plan prepared in response to a violation of this Chapter.

Retention means the deliberate holding and protecting of existing trees and other plants on the site.

Sediment control permit means a permit required to be obtained for certain land disturbing activities:

(1) under Chapter 19, Article I;

(2) from the Washington Suburban Sanitary Commission for major utility construction as defined under regulations of the Commission; or

(3) from a municipal corporation.

Significant tree means a tree of any species that is 24 inches or greater in diameter at 4.5 feet above the ground.

Site plan means a plan or an amendment to a site plan approved under Section 7.3.4 of Chapter 59 or referred to in Section 7.7.1.B of Chapter 59.

Sketch plan means a plan or amendment to a sketch plan approved under Chapter 59.7.3.3.

Special exception means a use approved as a conditional use under Section 7.3.1 or Section 7.7.1.B of Chapter 59 or referred to in Section 7.7.1.B of Chapter 59.

Special Protection Area (SPA) means a geographic area designated by the County Council under Section 19-62(a).

Specimen tree means a tree that is a particularly impressive or unusual example of a species due to its size, shape, age, or any other trait that epitomizes the character of the species as further described in the most recent version of the Trees Technical Manual.

Stream Restoration Project means an activity that:

(1) is designed to stabilize stream banks or enhance stream function or habitat located in an existing stream, waterway, or floodplain;

(2) avoids and minimizes impacts to forests and provides for replanting on-site an equivalent number of trees to the number removed by the project;

(3) 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

(4) is not performed to satisfy stormwater management, wetlands mitigation, or any other regulatory requirement associated with a development application.

Subdivision has the same meaning as stated in Chapter 50.

Technical Manual means a detailed guidance document used for administration of this Chapter that is adopted by the Planning Board under Section 22A-26.

Timber harvesting means a tree cutting operation affecting one or more acres of forest or developed woodland within a one year period that disturbs 5,000 square feet or more of forest floor. Timber harvesting does not include grubbing and clearing of root mass.

Tract means:

(1) the property subject to a development application or a sediment control permit, the boundaries of which are described by deed or record plat;

(2) the entire property subject to a development application or a sediment control permit if it is developed as a single project; or

(3) the length and width of the right-of-way or the limits of disturbance, whichever is greater, for a linear project.

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 20 feet at maturity.

Tree cover means the combined area, in square feet, of the crowns of all trees on a tract. For replanting purposes, tree cover is the typical crown area for the specific tree at 20 years.

Tree save plan means a plan prepared in conjunction with a development application indicating where trees are to be retained or planted, including the establishment of conservation areas.

Variance means relief from this Chapter. Variance does not mean a subdivision or zoning variance.

Watershed means any area delineated as a watershed in the Montgomery County Municipal Separate Storm Sewer System (MS4) Permit Implementation Program (delineated by the State of Maryland as an 8-digit watershed), and any smaller area within the watershed that is delineated by the State of Maryland as a 12-Digit watershed.

Wetland means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation. (1992 L.M.C., ch. 4, § 1; 1996 L.M.C., ch. 20, § 1; 1998 L.M.C., ch. 12, § 1; 2001 L.M.C., ch. 14 , § 1; 2001 L.M.C., ch 19, § 1; 2002 L.M.C., ch. 16, § 2; 2004 L.M.C., ch. 20, § 1; 2006 L.M.C., ch. 35, § 1; 2007 L.M.C., ch. 10 , § 1; 2013 L.M.C., ch. 4 , § 1; 2014 L.M.C., ch. 25, § 1; 2016 L.M.C., ch. 8 , § 1; 2017 L.M.C., ch. 34, §1; 2018 L.M.C., ch. 14, §1; 2018 L.M.C., ch. 27, §1; 2019 L.M.C., ch. 23, §1; 2021 L.M.C., ch. 1, §1; 2021 L.M.C., ch. 26, § 1; 2023 L.M.C., ch. 6, §1.)

Editor’s note—2001 L.M.C., ch. 19, § 2, reads as follows:

Transition. Any amendment to Chapter 22A, inserted by Section 1 of this Act, does not apply to:

(a) a preliminary or final forest conservation plan approved before this Act took effect [November 5, 2001], or

(b) a county highway project individually listed in the County Capital Improvements Program and submitted to the Planning Board under mandatory referral review before this Act took effect [November 5, 2001].

Sec. 22A-4. Applicability.

Except as otherwise expressly provided in this Chapter, this Chapter applies to:

(a) a person required by law to obtain an approval or amendment to a development plan, diagrammatic plan, project plan, floating zone plan, sketch plan, biohealth priority campus plan, preliminary plan of subdivision, administrative subdivision, minor subdivision, or site plan;

(b) a person required by law to obtain approval of a special exception or a conditional use, or a sediment control permit on a tract of land 40,000 square feet or larger, and who is not otherwise required to obtain an approval under subsection (a);

(c) a person who performs any cutting or clearing, or any other land disturbing activity that would directly threaten the viability of, any champion tree, wherever located;

(d) a government entity subject to mandatory referral or a park development plan on a tract of land 40,000 square feet or larger which is not exempt under subsection 22A-5(f);

(e) highway construction not exempt under subsections 22A-5(e) or (p);

(f) a public utility not exempt under subsections 22A-5(g), (o)(1) and (2), or (p); and

(g) clearing or grading conducted on two or more platted contiguous lots:

(1) that collectively total 40,000 square feet or larger;

(2) that are graded at the same time; and

(3) where sediment control is required.

Any person who expects to cut, clear, or grade more than 5000 square feet of forest or any champion tree, and who believes that the cutting, clearing, or grading is exempt under Section 22A-5, 22A-6, 22A-7, or 22A-8, must notify the Planning Director in writing before performing any cutting, clearing, or grading and seek confirmation from the Director that the cutting, clearing, or grading is in fact exempt from Article II. Failing to notify the Director as required by this Section, or performing any cutting, clearing, or grading before the Director confirms that an exemption applies, is a violation of this Chapter.

The Planning Director must notify the Department of Permitting Services if this Chapter would apply to any cutting, clearing, or grading of which the Department would otherwise not be notified. (1992 L.M.C., ch. 4, § 1; 2001 L.M.C., ch 19 , § 1; 2006 L.M.C., ch. 35, § 1; 2014 L.M.C., ch. 25, § 1; 2016 L.M.C., ch. 8, § 1; 2017 L.M.C., ch. 34, §1; 2021 L.M.C., ch. 1, § 1; 2023 L.M.C., ch. 6, §1.)

Editor’s note—2001 L.M.C., ch. 19, § 2, reads as follows:

Transition. Any amendment to Chapter 22A, inserted by Section 1 of this Act, does not apply to:

(a) a preliminary or final forest conservation plan approved before this Act took effect [November 5, 2001], or

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