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‘Big Week’ for Environmental Initiatives

Council approves Canal ordinance; Forest Conservation Law moves forward.

In the span of two days last week Montgomery County took two significant strides toward protecting the local environment.

On Tuesday, July 3, the Council passed a Zoning Text Amendment to the county’s zoning laws that will restrict the construction of accessory structures such as fences and sheds on private property within 200 feet of C&O Canal National Historical Park. On Thursday, July 5, the Planning Board voted to delaying the submitting its recommendations on how to amend the county’s Forest Conservation Law to allow the board’s staff time to work with the staff of Councilmember Marc Elrich (D-At large), whose staff is also looking at ways to strengthen the law. A public hearing held on [[]] raised concerns that the two sides were working on different versions of the same law.

“It’s been a big week,” Elrich said on Thursday.

Drafting of the zoning legislation was spurred by public outcry after a de facto approval to build a wrought-iron fence in a National Park Service conservation easement was issued to Aris Mardirossian last year, because the Park Service failed to respond to his application within 30 days. Under the Park Service’s regulations, a failure to respond to an application within that time period defaults to an approval of the request.

Mardirossian was delayed in building the fence as he sought approval of his plan from the Planning Board. In addition to building the fence, Mardirossian also wanted to remove several trees from within the easement. Both intentions were subjected to the approval process of the county’s Forest Conservation Law, and Mardirossian has had several applications denied. Mardirossian unsuccessfully appealed the most recent denial to the Planning Board on Thursday, June 28. After the denial of that appeal Mardirossian said he planned to take his case to court.

TUESDAY’S PASSAGE of the zoning ordinance will provide clearer guidelines should a similar situation arise in the future, said Councilmember Roger Berliner (D-1), who co-sponsored the legislation with Elrich.

“I think what it does is first of all — if there are any further incidents that the Park Service fails to do its job that the county is protected,” said Berliner. “What we have done is to make sure that the county independently can protect the scenic views along the canal. This ensures that no wrought-iron fences can be constructed that would not be in character of the scenic nature of the canal.”

“What this does … it strengthens the tool kit that we have to protect the canal,” said Ginny Barnes, president of the West Montgomery County Citizens Association. “If the easements along the canal were a little stronger or better enforced [the ordinance would not be needed] but as it happens, we do.”

Tuesday’s vote passed 7-1. Nancy Floreen (D-At large) was the lone dissenting vote and Duchy Trachtenberg (D-At large) was absent and did not cast a vote, according to a press release from the Council.

“I think it was a victory for those of us that were concerned the [park] was being threatened,” said Berliner.

Under the terms of the new zoning law property owners along the canal are allowed to visually delineate their properties with so-called rustic fences — unpainted, split-rail fences that are four feet in height, Berliner said.

“It meets property owner needs and rights [with the split-rail fence] in a way that is consistent in a way with what you would have seen if you were walking along the canal in the 1800s,” said Berliner.

TWO WEEKS ago it appeared that the Montgomery County Council might soon consider two different bills in the coming months to revise the county’s Forest Conservation Law. That notion was put to rest on Thursday, July 5 at a meeting at the Montgomery County Planning Board where the Board voted to delay sending its recommendations to the Council so that the two different bills can be grafted together.

The two bills have come from the Planning Board’s staff and from the office of Councilmember Marc Elrich. The Planning Board’s staff presented their initial recommendations to the Planning Board at a public hearing two weeks ago, and many in the audience questioned why one law should have two different working amendments in progress. The two sides have met several times recently and will continue to do so in the coming weeks, Elrich said at Thursday’s meeting.

“We’ve been working very closely … to come up with a unified approach,” Elrich said. “It doesn’t make sense to have parallel legislation.”

The Forest Conservation Law was enacted in 1992 to protect the county’s forests but has suffered from implementation and enforcement problems over the years. In the last two years, two different taskforces have looked at ways to strengthen the bill.

The work of the C&O Canal Taskforce has provided the starting point for the work of Elrich’s staff.

Referring to a 2004 incident involving Washington Redskins' owner Daniel Snyder, Elrich said, “This whole thing started with Snyder and his thing and it led to the broader [question] — ‘Well, what are we going to do for the rest of the county?’”

The biggest difference between the two bills right now are proposed changes to the required rates of reforestation on properties where trees are removed.

Strengthening the reforestation requirement is key, Elrich said.

“Otherwise you’re just presiding over the destruction of forests.”

IN ITS CURRENT form the Forest Conservation Law applies only to lots 40,000 square feet or greater in size, but one of the recommendations from the C&O Taskforce was to make it applicable to smaller residential lots.

One recommendation has been the establishment of a tree ordinance that would regulate the removal of all trees on lots of any size. That idea will find its way into bill form, but not as a part of the amendments to the Forest Conservation Law, Elrich said.

“We’ve been working on both simultaneously, this one just got to the table faster, so I think we’ll be okay.”

The new law will likely make the law applicable to smaller lots however. His staff had recommended a lot size of 5,000 square feet initially, but that may not be feasible, Elrich said.

“It’s hard to argue that a 5,000-square foot lot has forest,” Elrich said. Elrich said it is likely the new law will apply to lots 10,000 square feet and larger in size.

Elrich said that he hopes the bill will reach the council by September and could be voted on by the end of October.