Sec. 22A-5. Exemptions.

   The requirements of Article II do not apply to:

   (a)   an activity conducted on an existing single lot of any size that is required to construct a dwelling house or accessory structure (such as a pool, tennis court, or shed) intended for the use of the owner, if the activity:

      (1)   does not require a special exception;

      (2)   does not occur within an environmental buffer, except for the allowable uses stated in the environmental guidelines

      (3)   does not result in the cutting, clearing, or grading of:

         (A)   more than a total of 20,000 square feet of forest;

         (B)   any forest in a stream buffer,

         (C)   any forest on property located in a special protection area which must submit a water quality plan,

         (D)   any specimen or champion tree, or

         (E)   any trees or forest that are subject to a previously approved forest conservation plan or tree save plan; and

      (3)   is subject to a declaration of intent filed with the Planning Director stating that the lot will not be the subject of additional regulated activities under this Chapter within 5 years of the cutting, clearing, or grading of forest;

   (b)   an agricultural activity if:

      (1)   the activity is exempt from the requirements to obtain a sediment control permit under Section 19-2(b)(2);

      (2)   the activity is subject to a declaration of intent filed with the Planning Director stating that the agricultural areas will remain in commercial agriculture; and

      (3)   agricultural support buildings and related activities are built using best management practices.

   (c)   a tree nursery;

   (d)   (1)   a commercial logging and timber harvesting operation, including any harvesting conducted under the forest conservation and management program under Section 8-211 of the Tax-Property Article of the Maryland Code that:

         (A)   is completed before July 1, 1991, or 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 development within 5 years after the sediment control permit has been issued;

         (B)   has received approval from the County Arborist or designee that the logging or timber harvesting plan is not inconsistent with County forest management objectives and is otherwise appropriate; and

         (C)   has received a sediment control permit from the Department of Permitting Services and posted the required financial security under Chapter 19.

      (2)   The Department of Permitting Services must send the Planning Director a copy of all sediment control permits issued for commercial logging and timber harvesting operations.

      (3)   The requirements of this subsection apply to commercial logging and timber harvesting operations on agricultural land;

   (e)   a State, County, or municipal highway construction activity that is subject to Section 5-103 of the Natural Resources Article of the Maryland Code, or Section 22A-9. All requirements of an exemption for a County or municipal highway construction activity are detailed in Section 22A-6(d) and Section 22A-9;

   (f)   a governmental project reviewed for forest conservation purposes by the State Department of Natural Resources under the Code of Maryland Regulations;

   (g)   except for the clearing of access roads, routine maintenance of public utility easements and rights-of-way;

   (h)   utility or other work that is of an emergency nature;

   (i)   noncoal surface mining regulated under Subtitle 8 of Title 15 of the Environment Article of the Maryland Code;

   (j)   a sediment control permit approved before July 1, 1991, or if amended after that date at the initiation of the permittee, that does not result in the cutting of more than 5,000 additional square feet of forest;

   (k)   any lot covered by a preliminary plan of subdivision or site plan that did not receive a sediment control permit before July 1, 1991, and for which the preliminary plan of subdivision or site plan:

      (1)   was approved before July 1, 1984, and has less than 40,000 square feet of forest cover; or

      (2)   was approved or extended between July 1, 1984 and July 1, 1991, and

      (3)   the construction will not result in the cutting, clearing, or grading of:

         (A)   any forest in a stream buffer, or

         (B)   any forest on property located in a special protection area which must submit a water quality plan.

      A preliminary plan of subdivision or site plan approved before July 1, 1991, that is revised after that date at the initiative of the applicant and which results in the cutting of more than 5,000 additional square feet of forest is not exempt. Development or redevelopment of a property which requires subdivision is not exempt. This subsection does not apply to a planned unit development subject to subsection (l);

   (l)   any planned unit development for which a development plan was approved by the District Council or for which a project plan was approved by the Planning Board before January 1, 1992, and which has received site plan approval before July 1, 1992 for the tract. However, even if site plan approval has not been obtained before July 1, 1992, for the tract, the planned unit development is exempt if it is 75% or more complete on January 1, 1992, as measured by the total acreage subject to the planned unit development that has received site plan approval. A development plan or project plan amendment approved after January 1, 1992, is not exempt if it results in the cutting of more than 5,000 additional square feet of forest;

   (m)   a real estate transfer to provide a security, leasehold, or other legal or equitable interest in a portion of a lot or parcel, if;

      (1)   the transfer does not involve a change in land use, or new development or redevelopment, with associated land disturbing activities; and

      (2)   both the grantor and grantee file a declaration of intent;

   (n)   any minor subdivision under Division 50.7 of Chapter 50 if:

      (1)   the only development located on the resulting lot is a single family dwelling unit or an accessory structure (such as a pool, tennis court, or shed); development does not occur within an environmental buffer, except for the allowable uses stated in the environmental guidelines; and development does not result in the cutting, clearing, or grading of:

         (A)   more than a total of 20,000 square feet of forest;

         (B)   any forest in a stream buffer;

         (C)   any forest on property located in a special protection area which must submit a water quality plan;

         (D)   any specimen or champion tree; or

         (E)   any tree or forest that is subject to the requirements of a previously approved forest conservation plan or tree save plan; or

      (2)   there is no proposed land disturbance and a declaration of intent is filed with the Planning Director stating that the lot will not be the subject of additional regulated activities under this Chapter within 5 years of the approval of the minor subdivision.

   (o)   The cutting or clearing of public utility rights-of-way or land for electric generating stations licensed under Sections 7-205 and 7-207 or 7-208 of the Public Utility Companies Article of the Maryland Code, if:

      (1)   any required certificates of public convenience and necessity have been issued in accordance with Section 5-1603(f) of the Natural Resources Article of the Maryland Code; and

      (2)   the cutting or clearing of the forest is conducted so as to minimize the loss of forest.

   (p)   the construction of a public utility or highway in a utility right-of-way not exempt under subsection (o), or a highway right-of-way not exempt under subsection (e), if:

      (1)   the right-of-way existed before July 1, 1992;

      (2)   forest clearing will not exceed a total of 20,000 square feet and

      (3)   the construction will not result in the cutting, clearing, or grading of:

         (A)   any forest in a stream buffer,

         (B)   any forest on property located in a special protection area which must submit a water quality plan,

         (C)   any specimen or champion tree, or

         (D)   any tree or forest that is subject to a previously approved forest conservation or tree save plan;

   (q)   a special exception, or conditional use, application if:

      (1)   the application is for an existing structure and the proposed use will not result in clearing of existing forest or trees;

      (2)   the application modifies an existing special exception use which was approved before July 1, 1991, and the revision will not result in the clearing of more than a total of 5,000 additional square feet of forest or any specimen or champion tree; or

      (3)   the total disturbance area for the proposed special exception use, or conditional use, will not exceed 10,000 square feet, and clearing will not exceed a total of 5,000 square feet of forest or include any specimen or champion tree;

   (r)   an equestrian facility located in an agricultural zone that is exempt from platting requirements under Section 50-9, whether or not a sediment control permit is obtained under Section 19-2. Article II does not apply to any equestrian support building or related activity only if the building is built using best management practices. However, Section 22A-6(a) applies if any specimen or champion tree would be cleared. This exemption does not permit any forest or tree that was preserved under a previously-approved forest conservation plan or tree save plan to be cut, cleared, or graded unless the previously-approved plan is amended to allow that activity. This exemption does not apply if:

      (1)   any forest was cleared during an agricultural activity, as defined in subsection (b), during the 5 years before any exemption under this subsection is claimed;

      (2)   any forest or tree located in a stream valley buffer would be cleared;

      (3)   on-site forest retention does not equal at least 25% of the tract area or all forest existing when the exemption is claimed, whichever is less; or

      (4)   on-site forest retention does not equal at least 50% of any net tract area when more than 50% of that tract is existing forest.

      A conservation easement is not required for any equestrian facility, whether or not the exemption in this subsection applies. However, another type of long-term protection may be required under Section 22A-12(h)(2) if the facility includes any forest retention area. The Planning Director must monitor any facility that is exempt under this subsection to confirm that the applicant and any successor in interest continue to comply with all conditions of the exemption;

   (s)   (1)   an activity occurring on a tract of land that is less than 1.5 acres and that:

         (A)   is not located within the Commercial Residential (CR) zone classification;

         (B)   has no existing forest, existing specimen, or champion tree;

         (C)   would not result in an afforestation requirement that exceeds 10,000 square feet; and

         (D)   would not result in development within an environmental buffer, except for the allowable uses stated in the environmental guidelines or

      (2)   an activity occurring on a tract of land that is less than 1 acre and that

         (A)   is not located within the Commercial Residential (CR) zone classification;

            would not result in the clearing of more than a total of 20,000 square feet of existing forest, or any existing specimen or champion tree;

         (C)   would not result in a reforestation requirement that exceeds 10,000 square feet;

         (D)   would not result in development within an environmental buffer, except for the allowable uses stated in the environmental guidelines; and

         (E)   preserves forest in any on-site floodplains, stream buffers, steep slopes, critical habitats, and areas designated as priority save areas in a master plan or functional plan;

   (t)   a modification to a:

      (1)   non-residential developed property if:

         (A)   no more than 5,000 square feet of forest is ever cleared at one time or cumulatively after an exemption is issued;

         (B)   the modification does not result in the cutting, clearing, or grading of any forest in a stream buffer or forest located on property in a special protection area which must submit a water quality plan;

         (C)   the development does not occur within an environmental buffer, with the exception of the allowable uses stated in the environmental guidelines;

         (D)   the modification does not require approval of a preliminary plan, administrative subdivision plan, or conditional use/special exception;

         (E)   the modification does not increase the developed area by more than 50%, and any existing principal building, as defined in Chapter 59, is retained; and

         (F)   the pending development application does not propose any residential uses; or

      (2)   residential developed property if:

         (A)   forest is not impacted or cleared;

         (B)   the development does not occur within an environmental buffer, with the exception of the allowable uses stated in the environmental guidelines;

         (C)   the modification does not require approval of a preliminary plan, administrative subdivision plan, or conditional use/special exception;

         (D)   the modification does not increase the developed area by more than 50%;

         (E)   the existing structure is not modified; and

         (F)   the pending development application does not propose any new buildings or parking facilities.

   (u)   maintaining or retrofitting an existing stormwater management structure if:

      (1)   the clearing of vegetation or removal and trimming of trees is for the maintenance or retrofitting of the structure and in the original limits of disturbance for construction of the existing facility, or within any maintenance easement for access to the facility; and

      (2)   the tract is not included in a previously approved forest conservation plan;

   (v)   a stream restoration project for which the applicant for a sediment control permit has:

      (1)   agreed to replace every tree removed and plant the new trees before the end of the first planting season after final stabilization;

      (2)   confirmed that the tract is not included in a previously approved forest conservation plan; and

      (3)   executed a binding maintenance agreement for planting and maintenance of mitigation trees for at least 5 years with the affected property owner or owners, or with the Maryland National-Capital Park and Planning Commission if the applicant is performing a stream restoration project on their own property. If an applicant is performing a stream restoration project on their own property, financial security is required under Section 22A-12(i).

   (w)   cutting or clearing any tree by an existing airport operating with all applicable permits to comply with applicable provisions of any federal law or regulation governing the obstruction of navigable airspace if the Federal Aviation Administration has determined that the tree creates a hazard to aviation; and

   (x)   the project is for the demolition of an existing structure if:

      (1)   there is no proposed future development and existing impervious surfaces are substantially removed from the tract of land;

      (2)   the site is returned to natural topography;

      (3)   the property will not be used for a parking lot, material or equipment storage, or used as a recreational playing field;

      (4)   trees and groundcover will be planted so that all disturbed areas are immediately stabilized;

      (5)   no forest or specimen trees are removed;

      (6)   a tree save plan is submitted to protect existing forest and trees;

      (7)   the property is not already subject to Article II of this Chapter; and

      (8)   a Declaration of Intent is filed with the Planning Director stating that the property will not be the subject of additional development activities under this Chapter within 5 years of demolition of the existing structure.

(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; 2010 L.M.C., ch. 55, § 1; 2014 L.M.C., ch. 25, § 1; 2017 L.M.C., ch. 34, §1; 2018 L.M.C., ch. 27, § 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—Section 22A-5 is cited and interpreted in Miller v. Montgomery County, 2011 U.S. App. LEXIS 25088 (filed December 19, 2011) (unpublished).

   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].