Stories from the NFCCA Newsletter, the “Northwood News”

Northwood News ♦ December 2013

Two Bills Passed During Summer Protect Trees

By Jacquie Bokow

Two bills to protect trees in the County were passed during July by the County Council.  One (35-12) would help preserve the tree canopy (the area covered by the crown of one or more trees) in the downcounty; the other (41-12) deals with replacing trees on County rights-of-way (between the curb and the sidewalk).  Both amend the current MoCo Code.

Bill 35-12:  MoCo Tree Canopy Conservation Law

The main purpose of the act is “to save, maintain, and establish tree canopy for the benefit of County residents and future generations” and to provide for mitigation when trees (or potential growing space for shade trees) are lost as a result of development.  It also establishes a program to plant shade trees on both private and public property. A “shade tree” is defined as a tree capable of growing to heights greater than 50 feet.

The law applies to any person required by law to obtain a sediment control permit.  Only a homeowner who plans to disturb more than 5,000 square feet of earth, which would require the permit, would trigger the tree canopy restrictions. This probably would not affect any individual plot owner in our neighborhood.  This permit is almost always used for construction of a new home or similar-scale construction.  So, removing trees on your own property is your choice, as long as you aren’t required to obtain a sediment control permit.

A property owner who applies for a sediment control permit must either plant shade trees on the affected property or pay a fee.  (Actual dollar amounts are not spelled out in the bill, but mitigation fees are based on the square footage of tree canopy disturbed, increasing as the amount of tree canopy disturbance increases.)  At least three trees must be planted for up to 6,000 sq. ft. of disturbed soil, up to 15 trees per 40,000 sq. ft.  If feasible, the trees planted must be native to the Piedmont area of the Chesapeake Bay watershed.

The reason this helps is that the existing Forest Conservation Law (FCL) only applied to forests (not individual trees) and only to disturbances of 40,000 sq. ft. or more.  So the kind of infill developments (including tear-downs and mansionizations) we experience in our area were almost never protected by the FCL.

The law doesn’t apply to cutting trees on a public utility right-or-way for electric generation.  According to the bill language, “public utility” means any water, sewage, electric, gas, telephone, or cable company.  The law also doesn’t apply to “any activity conducted by the County Parks Department.”  (Funny that Parks should be exempt!)

Bill 35-12 was introduced by then Council President Roger Berliner at the request of County Executive Ike Leggett and approved unanimously by the Council.  Violation of this law carries a maximum civil penalty of $1,000 per day.

Bill 41-12:  Roadside Trees Protection

This bill states no one may construct any road, sidewalk, curb and gutter, driveway, or drainage structure; begin any such construction (including clearing, grading, and tree cutting); or perform any tree work on any roadside tree (including removing a stump in a County right-of-way), without a permit from the Director of Permitting Services.

The law will affect both residential and commercial property owners whose property abuts a right-of-way and who wish to remove trees or stumps, or engage in projects that impact trees situated in the rights-of-way.  The difference now is that tree protection measures will have to be used if it’s possible to save the tree.  If that isn’t possible, the tree must be replaced and at least two additional trees must be planted.  This is important because of the backlog of tree maintenance and replacement.

Every year, the county removes 2,000+ trees and plants about 1,700 trees with a budget of about $250,000.  Two fiscal years when funding was eliminated by the County Council (finally restored in FY2012) have resulted in a huge backlog of street tree services, including thousands that haven’t been replanted, a thousand more in need of pruning or removal, and — as of 2011 — a seven-month backlog of new inspections of trees in the public right-of-way.

According to Conservation Montgomery, a goal of the new law is to prompt decisions up front — prior to the commencement of a building project — as to whether a street tree can be saved.  If the tree can be saved, an applicant will be required to take appropriate measures to protect the tree.  If not, the permit applicant will be required to remove and replace the tree, if space allows, and plant at least two additional trees or pay into a fund if the applicant is unable to replace trees at the same location where they were removed.  The tree type must appear on the County recommended tree list.

The requirement for planting three trees for each street tree removed is intended to offset shade canopy lost by tree removal.  The law does not prevent the removal of street trees.  Instead, it links tree removal with replacement and/or fees in lieu so that desirable levels of tree canopy along the roadside are maintained.

A fee is charged for each right-of-way permit application unless it’s to remove a tree that endangers a person or property or is a stump in the right-of-way.  Half the fee will be refunded if the permit is rejected or withdrawn before construction begins.

A licensed tree expert doesn’t need the permit if a tree is uprooted or severely damaged because of a storm or vehicular collision, if a broken tree branch contacts a wire carrying electric current, or the tree or branch immediately endangers a person or property.

The right-of-way tree bill, which took six years to get passed, was introduced by Councilmen Roger Berliner and Marc Elrich.  Councilman George Leventhal (D-At Large) of Takoma Park voted against the bill, as did Councilwoman Nancy Floreen (D-At Large) of Garrett Park, who called it “unnecessary legislation.”

Both bills take effect 1 March 2014.   ■

   © 2013 NFCCA  [Source:]