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The Fine Language of Saving Forests

Public officials, developers, and environmentalists tackle the county’s Forest Conservation Law.

Richard Sullivan builds homes for a living. His company, Alliance Homes, is a small enterprise based out of Bethesda that can not afford unnecessary delays. That is exactly what he says he encountered recently when he submitted a Forest Conservation Plan to the Montgomery County Planning Board.

“When you build twelve homes a year, these unnecessary delays hurt … my employees, the seventy or so contractors I hire to build a home, the new homebuyer and the overall economy are all adversely affected,” Sullivan said. Sullivan spoke at a public hearing before the Planning Board on Thursday, June 21 to discuss proposed changes to the county’s Forest Conservation Law (FCL).

As a developer, Sullivan was subject to the terms of Montgomery County’s Forest Conservation Law.

When originally drafted in 1992, the Forest Conservation Law was intended to establish guidelines that would protect forest areas in the county. The law applies to lots larger than 40,000 square feet in size. Any person or legal entity with a construction project on such lots must clear their project with the Planning Board and meet the standards of the law. Flaws in the legislation have surfaced over the years, particularly in its implementation and enforcement, prompting the Planning Board’s efforts to amend the law.

AS DRAFTED by the Planning Board’s staff, the new law would change in three major ways.

First, the rules regarding who is subjected to the law, and to which parts of it, would be clarified. Previously, it was unclear who the law applied to and under what conditions was unclear, said Mark Pfefferle, who oversees the county's forest conservation program for the Planning Board.

“If someone is subject to the [law] they will better understand what their requirements will be,” Pfefferle said of the proposed changes to the law.

“Basically, everyone who’s proposing [a project] is subject to the law, they’re just subject to different levels of the law,” said Royce Hanson, the chairman of the Planning Board. Hanson noted again that the law applied only to parcels 40,000 square feet or greater in size.

In nearly all applicable zones, the law would increase by five percent the proportion of property that must remain forested, or must be replanted to meet the minimum forestation thresholds for that given zoning classification.

This proposed change drew criticism from developers, who said during Thursday’s meeting that the higher rates of forest area would decrease the number of homes they could build in new subdivisions. That in turn would have the effect of driving up the price of the homes that are built.

“It could just be devastating to the property owner,” said Josh Maisel of Benning & Associates, Inc. Land Planning Consultants. “The builders are not going to eat this cost, they’re in the business of making money.”

Last, the period of time that parties subject to the forest legislation must maintain new plantings to meet the forestation standards would increase from two years to five years. This is another cost that would get passed on to new home buyers, said Dusty Rood, of Rodgers Consulting.

THE OVERALL result of the changes to the law would have an adverse effect on those building on large parcels of land, and in cases where that cost could at all be passed on to consumers, it would, Rood said.

“Initially we were enthusiastic about these changes,” said Rood of the reaction that he and many other developers had to the proposed changes to the law. The more they looked at it, the less they liked it. “Now we’re troubled.”

Witnesses and the members of the board alike struggled with some of the language of the proposed bill — which includes definitions of 71 words and phrases used within the document — and acknowledged that deciphering it into plain language for the County Council and the public would be a challenge.

“Our aim here is to get as much clarity as possible,” said Hanson.

Ginny Barnes, environmental chair and president-elect of the West Montgomery County Citizens Association said that the proposed changes were a good start, but did not go far enough. Barnes said that the lot threshold applicability of 40,000 square feet should be lowered, and that the new law should include a tree ordinance that would set guidelines for removing any tree of any size on any property of any size.

“We should not be amending the [Forest Conservation Law] in isolation. Parallel to that we should be creating a tree ordinance at the same time,” Barnes said. The two matters would not be tackled separately because of the grueling nature of creating such bills.

“The time is now,” Barnes said. “The time is right.”

SULLIVAN AND Barnes each raised questions about why the Planning Board was working on changes to the law independently of similar efforts currently being worked on by County Councilman Marc Elrich and his staff.

“We know that Councilmember Elrich has his own ideas on changing the law,” Sullivan said, urging the Planning Board to take a longer look and coordinate its efforts with Elrich’s office.

Barnes echoed that sentiment. She wondered aloud if the reason the Planning Board’s new legislation was rushed out was because the Planning Board, charged with enforcing the law, wanted to create the law on its own terms.

“I’m baffled by how separate [the Elrich and Planning Board legislation] tracks have run and how much this looks like another chapter in an already dysfunctional system that sends an all too familiar message of turf, expediency and a fear of doing anything that might be considered really comprehensive,” Barnes said.

“It seems to be rushed and I’m not sure why,” said Sullivan. “This is a huge initiative as it relates to the cost of housing.”

The Planning Board staff has in fact met with Elrich’s staff, Pfefferle said, and will meet with them again in the coming weeks before the final recommendations are sent to the County Council for final action. Pfefferle said that the main difference between the two camps is that Elrich’s staff is proposing that the increased reforestation rates apply to all zoning categories of lots larger than 40,000 square feet in size. The board's proposed legislation would not apply the increased reforestation thresholds to agricultural zones but Elrich's would. Elrich's legislation would also include an additional seventh zoning category - low-density residential lots - that the law would apply to.

Barnes said that the one meeting between the two groups was not enough.

"We're still not working together on this and we need to be working together," Barnes said.

BARNES ALSO questioned why a forest conservation advisory panel created through legislation passed in the last year had not been assembled and why the Planning Board had not pressed the County Executive to do so.

“In 2006 the County Council passed legislation to establish a Forest/Tree Conservation Advisory Board under the County Executive,” said Barnes. “That group has yet to be formed and could be a big help now. … If all the appropriate players were in place on that mythical board, it would have been an excellent place to garner meaningful input on all the proposed revisions.”

Jennifer Hughes, a legislative aid to County Executive Ike Leggett, said that Leggett and his staff were working on assembling the panel but that the process was still in the initial stages. That process was delayed while the search for a permanent head of the Department of Environmental Protection began. Hughes said that the Department of Environmental Protection still has no permanent head and that search is ongoing, but the Executive’s office would no longer wait to create the advisory board.

“I’m not sure that we’ve made any kind of decision about what kinds of people would be on it,” Hughes said of the advisory board. She said that an advertisement for applications to serve on the board would be made public in the coming weeks. Hughes said that the she expected the board to be assembled and operational by the fall.

The Planning Board and its staff will hold a work session to finish their proposal on July 5. Barring any delays in preparing a final version of the bill to transmit to the County Council, the time for public input will end then, said Hanson. Anyone who wishes to submit testimony to the Planning Board must do so in writing prior to the July 5 meeting. No public testimony will be heard at the work session, Hanson said.