Worcester County, MD Forest Conservation

Purpose and intent. Forests and individual trees greatly contribute to the quality of life in Worcester County and the health of its natural ecosystems. The purpose of this Subtitle is to provide for the preservation of existing trees and forest areas and the planting of trees and the establishment of new forest areas where appropriate in conjunction with land development activities within Worcester County. In addition, this Subtitle is intended to protect and preserve the forest products industry in Worcester County. This Subtitle complies with the requirements of the State Forest Conservation Act.[1]

[1]

Editor's Note: See the Natural Resources Article of the Annotated Code of Maryland, Title 5, Subtitle 16.

Applicability. This Subtitle shall apply only in the unincorporated areas of the county. The provisions of this Subtitle shall not apply within the corporate limits of any municipality within the County, provided that any such municipality may, by ordinance or resolution duly adopted by its governing body, adopt this Subtitle as enforceable within such corporate limits and request that it be enforced therein. In such event, the County Commissioners may, by resolution, approve such action of the municipality and this Subtitle shall be in full force and effect within such municipality. Such ordinance or resolution by the municipality may include amendments to the Worcester County Forest Conservation Law, provided that such amendments are approved by the Maryland Department of Natural Resources and the County Commissioners of Worcester County, Maryland.

Citation. This subtitle may be cited as the "Worcester County Forest Conservation Law."

[Added 8-8-1995 by Bill No. 95-8]

§ NR 1-402 Definitions.

[Amended 8-8-1995 by Bill No. 95-8; 6-18-2002 by Bill No. 02-7; 1-18-2011 by Bill No. 10-1]

General interpretations. For the purposes of this Subtitle, certain terms or words used herein shall be interpreted as follows:

The word "person" includes an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, any partnership, firm, association, public or private corporation, or any other entity or the federal government, the state, any county, municipal corporation, or other political subdivision of the state, or any of their units.

The masculine shall include the feminine and the feminine shall include the masculine.

The present tense includes the future tense.

The singular number includes the plural; the plural number includes the singular.

The words "shall," "will" or "must" are mandatory; the words "should" or "may" are permissive.

The word "used" or "occupied" includes the words "intended, designed or arranged to be used or occupied."

APPROVED TIMBER MANAGEMENT PLAN

Definitions of words and phrases. For the purposes of this Subtitle, the following definitions shall apply:

AFFORESTATION

The establishment of a forest on an area on which forest cover has been absent; or planting of open areas which are not presently in forest cover; or the establishment of a forest according to procedures set forth in the Worcester County Forest Conservation Manual.

AGRICULTURAL ACTIVITY

Farming activities, 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, orchards, nursery and other products cultivated as part of a commercial agricultural enterprise.

A document approved by the Maryland Department of Natural Resources and which operates as a protective agreement for forest conservation as described in § NR 1-415(g) herein.

AQUACULTURE ACTIVITIES

The use of land and structures for the farming, hatching, cultivating, planting, feeding, raising, shedding, harvesting and culturing of finfish, shellfish, crustaceans, mollusks, amphibians, reptiles, other aquatic plants or animals, or both, in lakes, streams, inlets, estuaries, ponds and other natural, artificial or man-made, enclosed or impounded ponds, waterbodies or water-containing structures. Cultivation methods include, but are not limited to, seed or larvae development and growout facilities, fish pens, shellfish floats or rafts, racks and longlines, seaweed floats and the culture of clams and oysters on tidelands and subtidal areas.

BREAK EVEN POINT

The point at which the forest conservation requirements can be met solely through forest retention and no reforestation.

CHAMPION TREE

The largest tree of its species within the State of Maryland as set forth in the Worcester County Forest Conservation Manual.

COASTAL BAYS

Includes Assawoman, Isle of Wight, Sinepuxent, Newport and Chincoteague Bays and their tributaries.

COMMERCIAL LOGGING OR TIMBER HARVESTING OPERATIONS

The cutting and removing of trees from a site for commercial purposes, leaving the root mass intact.

CRITICAL HABITAT AREA

A critical habitat for endangered species and its surrounding protection area. In order to be considered a critical habitat area, such area shall be likely to contribute to the long-term survival of the species; and, be likely to be occupied by the species for the foreseeable future; and, constitute habitat of the species which is deemed critical under state law and as appears in the Worcester County Forest Conservation Manual.

CRITICAL HABITAT FOR ENDANGERED SPECIES

A habitat occupied by an endangered species as determined or listed under state law and as appears in the Worcester County Forest Conservation Manual.

DEPARTMENT

The department designated by the County Commissioners to administer and enforce the local forest conservation program.

DEVELOPMENT

The establishment of a principal use of a site; a change in a principal use of a site; or the improvement or alteration of a site by the construction, enlargement or relocation of a structure; the provision of stormwater management or roads; the grading of existing topography; the clearing or grubbing of existing vegetation; or any other nonagricultural activity that results in a change in existing site conditions.

DEVELOPMENT PROJECT

The grading or construction activities occurring on areas of forty thousand square feet or greater, including any redevelopment.

FOREST

A biological community dominated by trees covering a land area of ten thousand square feet or greater. The term "forest" shall include areas that have at least one hundred trees per acre with at least fifty percent of those trees having a two-inch or greater diameter at four and one-half feet above the ground and larger; and forest areas that have been cut but not cleared. The term "forest" shall not include orchards.

FOREST CONSERVATION MANUAL, WORCESTER COUNTY

The Worcester County Forest Conservation Manual as provided for in § NR 1-421 herein.

FOREST CONSERVATION PLAN

A plan approved pursuant to § NR 1-407 herein.

FOREST CONSERVATION WATERSHED

The three forest conservation watersheds are the Northern Coastal Bays subwatershed (including the Assawoman, Isle of Wight, Sinepuxent and Newport Bay subwatersheds), the Chincoteague Bay subwatershed and the Pocomoke River watershed.

FOREST MITIGATION BANKING

The intentional restoration or creation of forests undertaken expressly for the purpose of providing credits for reforestation requirements with enhanced environmental benefits from future activities.

FOREST STAND DELINEATION

The methodology for evaluating the existing vegetation on a site proposed for development, as provided in the Worcester County Forest Conservation Manual.

GROWING SEASON

For purposes of these regulations, growing season shall be defined as that period beginning on April 1 and ending on November 1 of any given calendar year.

LINEAR PROJECT AREA

A project whose configuration is elongated with nearly parallel sides that is used to transport a utility product or public service not otherwise contained in an application for subdivision such as electricity, gas, water, sewer, communications, trains and vehicles. Linear projects may traverse fee simple properties through defined boundaries or through easement rights.

MUNICIPALITY

A municipal corporation.

NET TRACT AREA

The net tract area shall be the total area of a site, including both forested and unforested areas, to the nearest one-tenth of an acre reduced by that area where forest clearing is restricted by another local ordinance or program and by the area of tidal wetlands and existing waterbodies, except for those properties zoned A-1, A-2 or RP District as defined in the Worcester County Zoning and Subdivision Control Article or in linear project areas. In the A-1, A-2 and RP Zoning Districts, the net tract area shall be the portion of the total subject area for which land use will be changed or will no longer be used for primarily agricultural activities reduced by that area where forest clearing is restricted by another local ordinance or program and by the area of tidal wetlands and existing waterbodies. For a linear project, the net tract area shall be reduced by the area of a right-of-way width, new access roads and storage or by the limits of disturbance as shown on an application for sediment and erosion control approval or in a capital improvements program project description.

QUALIFIED PROFESSIONAL

A person who meets the requirements as set forth in the Worcester County Forest Conservation Manual and the pertinent requirements of the Code of Maryland Regulations.

REFORESTATION or REFORESTED

The creation of a biological community dominated by trees containing at least one hundred trees per acre with at least fifty percent of those trees having the potential of attaining a two-inch or greater diameter measured at four and one-half feet above the ground within seven years. Reforestation includes landscaping of areas under an approved landscaping plan that establishes a forest that is at least thirty-five feet wide and covering two thousand five hundred square feet of area. 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.

STREAM BUFFER

All lands lying within fifty feet, measured from the top of each bank of any perennial or intermittent stream.

STREAM

A stream shown as perennial or intermittent on the most recent seven-and-five-tenths-minute topographic quadrangle published by the United States Geological Survey.

SUBDIVISION, MAJOR

Any subdivision of land which creates six or more lots in total, regardless of size, out of what was a single parcel as of July 25, 1967. A series of separate subdivisions out of the same original parcel shall be considered a "major subdivision" when the cumulative effect of such separate subdivisions meet the criteria of a "major subdivision." For the purposes of this Subtitle a rural cluster subdivision as defined in § ZS 1-103 hereof shall not be considered a major subdivision. Any undeveloped lot transferred at any time to a bona fide conservation entity for the purpose of perpetual protection, as determined by the Department, shall not be counted as a lot when determining the number of subdivisions of a property.

SUBDIVISION, MINOR

Any subdivision which is not a major subdivision as herein defined and which creates up to but not more than five lots out of what was a single parcel of land as of July 25, 1967. For the purposes of this Subtitle a rural cluster subdivision as defined in § ZS 1-103 hereof shall be considered a minor subdivision. Any undeveloped lot transferred at any time to a bona fide conservation entity for the purpose of perpetual protection, as determined by the Department, shall not be counted as a lot when determining the number of subdivisions of a property.

SUBJECT AREA

Property or unit of land subject to an application for a grading or sediment control permit, subdivision approval, site plan approval, or areas subject to this Subtitle.

TREE

A large, woody plant having one or several self-supporting stems or trunks and numerous branches that reach a height of at least twenty feet at maturity.

WATERSHED

All land lying within an area described as a sub-basin in water quality regulations as defined in the Worcester County Forest Conservation Manual.

WETLANDS, NONTIDAL

An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support and that under normal circumstances does support a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as "hydrophytic vegetation." "Nontidal wetlands" are identified by the most recent federal definition and guidelines for identifying and delineating jurisdictional wetlands.

WETLANDS, PRIVATE

Any land not considered "state wetland," bordering on or lying beneath tidal waters, which is subject to regular or periodic tidal action and supports aquatic growth. This includes wetlands transferred by the state by a valid grant, lease, patent or grant confirmed by Article 5 of the Declaration of Rights of the Constitution to the extent of the interest transferred.

WETLANDS, STATE

Any land under the navigable waters of the state below the mean high tide, affected by the regular rise and fall of the tide. Wetlands of this category which have been transferred by the state by a valid grant, lease, patent or grant confirmed by Article 5 of the Declaration of Rights of the Constitution shall be considered private wetlands to the extent of the interest transferred.

WETLANDS, TIDAL

Include all private and state wetlands as defined herein.

WOODLOT MANAGEMENT

The control of undesirable species through fire, chemical, mowing or other methods while maintaining the basic criteria or definition of a forest as specified herein.

§ NR 1-403 Applicability.

Regulated activities. Except as provided in Subsection (b) of this section, this Subtitle shall apply to any public or private subdivision plan or application for site plan approval, or grading or sediment control permit by any person, including a unit of state or local government on areas forty thousand square feet or greater.

Exempted activities. This Subtitle does not apply to:

Highway construction activities by a government or by any other person who uses state funding for highway construction and in compliance with the provisions of state law requiring reforestation for such activities.

Activities in areas governed by the Chesapeake and Atlantic Coastal Bays Critical Area Protection Law.

[Amended 1-18-2011 by Bill No. 10-1]

Commercial logging and timber harvesting operations, including harvesting conducted subject to the state forest conservation and management program as established in the Tax-Property Article, Annotated Code of Maryland, that are completed:

Before July 1, 1991; or

After July 1, 1991, on property which:

Has not been the subject of application for a grading permit for development within five years after the logging or harvesting operation; and

Is the subject of a declaration of intent as provided for in § NR 1-403(c) herein, approved by the department.

Agricultural activities not resulting in a change in land use category, including agricultural support buildings and other related structures built using accepted best management practices, except that a person engaging in an agricultural activity clearing forty thousand square feet or greater of forest within a one-year period may not receive an agricultural exemption, unless the person files a declaration of intent as provided for in § NR 1-403(c) herein which includes a statement that the landowner or landowner's agent will practice agriculture on that portion of the property for five years from the date of the declaration.

The cutting or clearing of public utility rights-of-way licensed under state law or land for electric generating stations licensed under state law, if:

Required certificates of public convenience and necessity have been issued in accordance with state law; and

Cutting or clearing of the forest is conducted to minimize the loss of forest.

Routine maintenance or emergency repairs of public utility rights-of-way licensed under state law.

Except for a public utility subject to § NR 1-403(b)(6) herein, routine maintenance or emergency repairs of a public utility right-of-way if:

The right-of-way existed before the effective date of this Subtitle; or

The right-of-way's initial construction was approved under this Subtitle.

(8)

A residential activity conducted on a lot of any size, where such lot is legally existing as of the effective date of this Subtitle, or on a linear project area, if the activity:

[Amended 6-18-2002 by Bill No. 02-7]

Does not result in the cumulative cutting, clearing or grading of more than twenty thousand square feet of forest.

[Amended 1-18-2011 by Bill No. 10-1]

Does not result in the cutting, clearing or grading of a forest that is subject to the requirements of a previous forest conservation plan approved under this Subtitle; and

Is the subject of a declaration of intent filed with the department, as provided for in § NR 1-403(c) herein, stating that the lot or linear project will not be the subject of a regulated activity within five years of the cutting, clearing or grading of forest.

(9)

An activity, including subdivision, required for the purpose of constructing a dwelling house intended for the use of the owner, or child of the owner, if the activity:

[Amended 1-18-2011 by Bill No. 10-1]

Does not result in the cutting, clearing or grading of more than twenty thousand square feet of forest; and

Is the subject of a declaration of intent filed with the Department, as provided for in § NR 1-403(c) hereof, which states that transfer of ownership may result in a loss of exemption.

(10)

Surface mining regulated under state law.

(11)

An activity conducted pursuant to a preliminary plan of subdivision or a grading or sediment control plan approved before July 1, 1991, or a minor subdivision application for which a Worcester County Application for Residential/Commercial Site/Soil Evaluation was submitted prior to July 1, 1991.

(12)

An activity conducted pursuant to a planned unit development that, by December 31, 1991, has obtained initial development plan approval of Step I in accordance with the Worcester County Zoning and Subdivision Control Article.

(13)

A subdivision for agricultural purposes only, where the statement "For Agricultural Purposes Only" appears on the plat.

(14)

A boundary line adjustment, provided that there is no accompanying change in land use, and a statement to that effect is included on the plat.

(15)

A minor or major subdivision where the area of forested non-tidal wetland, including any regulated buffer, is greater than or equal to the area of reforestation and afforestation required under §§ NR 1-408 and NR 1-410 herein.

(16)

A minor subdivision for conservation purposes where the statement "For Conservation Purposes Only" appears on the plat, and where such new lots are deeded to a legitimate conservation organization upon recordation of the plat.

(17)

Any habitat program approved by the United States Soil Conservation Service or its successor, the United States Fish and Wildlife Service, or the Maryland Department of Natural Resources for such habitat program if the activity:

Does not result in the cutting, clearing or grading of a forest that is subject to the requirements of a previous forest conservation plan approved under this Subtitle; and

Is the subject of a declaration of intent filed with the department, as provided for in § NR 1-403(c) herein, stating that the lot will not be the subject of a regulated activity within five years of the cutting, clearing or grading of forest.

(18)

The construction and maintenance of water and sewage treatment facilities and county landfills by a state, County or municipal governmental body, provided that the cutting or clearing of the forest is conducted to minimize the loss of forest and all forested area cut or cleared over forty thousand square feet in area shall be replaced at a ratio of one acre planted for each one acre removed. Priority areas for such reforestation shall be as established in the Worcester County Forest Conservation Manual.

(19)

The construction and maintenance of tax ditches, drainage ditches, water lines, sewer lines, telephone lines, cable television lines, natural gas lines, electrical power lines and other such linear utility lines, provided that the cutting or clearing of the forest is conducted to minimize the loss of forest. In addition, for such construction activities, all forested area cut or cleared over forty thousand square feet in area shall be replaced at a ratio of one acre planted for each one acre removed. Priority areas for such reforestation shall be as established in the Worcester County Forest Conservation Manual.

(20)

County road construction activities by the County Commissioners provided that the cutting or clearing of the forest is conducted to minimize the loss of forest, and provided that all forested area cut or cleared over forty thousand square feet in area is replaced at a ratio of one acre planted for each one acre removed. Priority areas for such reforestation shall be as established in the Worcester County Forest Conservation Manual.

(21)

Cutting of trees to establish or re-establish property lines or survey control, using accepted field surveying methods, including random traverse and cross-sections for topography, provided that the width of such cutting does not exceed ten feet.

(22)

Any activity within the corporate limits of a municipality in Worcester County which is exempted under a Forest Conservation Ordinance adopted by the municipality and accepted by the state, and where the municipality requests administration of its Forest Conservation Program by the department.

(23)

A minor subdivision, in the A-1, A-2 and RP Zoning Districts as defined in the Worcester County Zoning and Subdivision Control Article, to create a lot which contains within its boundaries a building, structure or use of land that required a zoning or building permit and existed as of July 29, 1994, if the subdivision:

[Amended 8-8-1995 by Ord. No. 95-8; 1-18-2011 by Bill No. 10-1]

Does not result in any cutting, clearing or grading of a forest; and

Is not a resubdivision of a lot previously subdivided as an exemption pursuant to this subsection.

(24)

The following activity otherwise regulated: Commercial airports, provided that the cutting or clearing of a forest is conducted to minimize the loss of forest, and provided that all forested area cut or cleared over forty thousand square feet in area is replaced at a ratio of one acre planted for each one acre removed. Priority areas for such reforestation shall be as established in the Worcester County Forest Conservation Manual.

[Added 8-8-1995 by Bill No. 95-8]

(25)

The cutting or clearing of trees to comply with the requirements of 14 C.F.R. § 77.25, as from time to time amended, relating to objects affecting navigable airspace, provided that the Federal Aviation Administration has determined that the trees are a hazard to aviation.

[Added 11-6-2001 by Bill No. 01-17]

Declaration of intent.

The purpose of the declaration of intent is to verify that the proposed activity is exempt under this Subtitle.

A person seeking an exemption under Subsection 1-403(b)(3),(4),(8),(9) or (17) herein shall file a declaration of intent with the department.

Such declaration of intent shall be effective for five years.

The existence of a declaration of intent does not preclude another exempted activity on the property subject to a declaration of intent, if the activity:

Does not conflict with the purpose of any existing declaration of intent; and

Complies with the applicable requirements for an exempted activity.

An applicant may apply for a regulated activity on that area of the property not covered under the declaration of intent if the requirements of this Subtitle are satisfied.

The declaration of intent shall be a condition of the building permit and/or on the sediment and erosion control permit.

Violation of a declaration of intent shall be subject to enforcement actions specified in § NR 1-418.

§ NR 1-404 General requirements.

Unless specifically exempted under the provisions of § NR 1-403(b) herein, a person making application after the effective date of this Subtitle for subdivision or site plan approval, a grading permit, or a sediment control permit for an area of land of forty thousand square feet or greater shall submit to the department a forest stand delineation and a forest conservation plan for the subject area on which the development is located. In addition, such plan shall incorporate methods approved by the department, as provided in the Worcester County Forest Conservation Manual, to protect retained forests and trees during construction.

§ NR 1-405 Simplified forest stand delineation and forest conservation plan for minor subdivisions.

Generally. In the case of a minor subdivision not exempted under the provisions of § NR 1-403(b), a simplified forest stand delineation and forest conservation plan which demonstrates compliance with at least the minimum requirements for reforestation and afforestation shall be submitted.

Preparation. The simplified forest stand delineation and forest conservation plan shall be prepared by a licensed surveyor, licensed forester, licensed landscape architect or other qualified professional.

General requirements. A simplified forest stand delineation and forest conservation plan shall:

Be submitted with the minor subdivision plat application and shall be incorporated within the minor subdivision plat.

Include on the subdivision plat a delineation of the area of existing forest within the proposed subdivision.

Show the planned limits of disturbance.

Include a table that lists, in approximate square feet:

The net tract area;

The total existing forest area;

The area of forest conservation required; and

The total area of forest conservation that the applicant proposes to provide, including both on-site and, if applicable, off-site areas.

Include a clear graphic indication of the forest conservation to be provided on the site, showing areas where retention of existing forest, reforestation or afforestation is planned.

If reforestation or afforestation is proposed by natural regeneration, include a clear graphic indication of the area proposed for on-site reforestation or afforestation. Priority areas for such reforestation or afforestation shall be in accordance with the provisions specified in the Forest Conservation Manual.

If reforestation or afforestation is proposed by means other than on-site natural regeneration, include a reforestation or afforestation plan prepared by a licensed forester, licensed landscape architect or other qualified professional. Such plan shall include a clear graphic indication of the area proposed for reforestation or afforestation, a description of the site, site preparation methods, species, size and spacing of planting stock, and any other information required by the Worcester County Forest Conservation Manual. Such plans shall also include a timetable for planting and a schedule for completion to assure that all required afforestation or reforestation occurs as required by § NR 1-410 herein.

(8)

Incorporate the details of all anticipated perpetual protective agreements to provide protection for areas of forest conservation, including areas of afforestation, reforestation, and retention by means of conservation easements, deed restrictions, covenants, timber management plans, forest conservation and management agreements or other similar devices to provide preservation at all times, as described in the Worcester County Forest Conservation Manual. These restrictions shall be noted on the minor subdivision plat and deeds, and shall be in effect at all times.

(9)

Off-site afforestation or reforestation, as established in § 1-412 herein or payment to the Forest Conservation Fund, as established in § 1-413 herein, in lieu of required afforestation and reforestation shall be acceptable alternatives to such afforestation or reforestation. Such choice of alternative shall be at the discretion of the applicant and shall not require approval of the Board of Zoning Appeals notwithstanding any other provision of this Subtitle.

[Amended 8-8-1995 by Bill No. 95-8]

Review procedure. Within fifteen days after receipt of the simplified forest stand delineation and forest conservation plan, the department shall inform the applicant of the results of its review and any required changes. The applicant may submit a revised simplified forest stand delineation and forest conservation plan incorporating required changes.

Approval required prior to recordation. All simplified forest stand delineations and forest conservation plans shall be approved by the department before a minor subdivision plat may be recorded.

Approval required prior to development. If a simplified forest stand delineation and forest conservation plan is required by this Subtitle, a person may not cut, clear or grade until the department has approved the plan.

Plan alterations. The simplified forest conservation plan cannot be altered without approval from the department.

Stop work orders and plan revocations. The department may issue a stop work order or may revoke an approved simplified forest conservation plan if it finds that:

Any provision of the plan has been violated;

Approval of the plan was obtained through fraud, misrepresentation, a false or misleading statement or omission of a relevant or material fact;

Changes in the development or in the condition of the site necessitate preparation of a new or amended plan; or

Approval of the simplified forest stand delineation is revoked.

(i)

Notice of revocation. Prior to revoking approval of a forest conservation plan, the department shall notify the owner and/or developer in writing and provide an opportunity for a presentation of evidence before the department. A stop work order shall be issued for the site until the issue of revocation has been finally resolved.

§ NR 1-406 Forest stand delineation.

Submission required. A forest stand delineation shall be submitted at the initial stages of subdivision or site plan approval, or before a grading and sediment control permit application is submitted for the subject area being developed.

Preparation. The delineation shall be prepared by a licensed forester, licensed landscape architect or other qualified professional.

Information required. The delineation shall be used during the preliminary review process to determine the most suitable and practical areas for forest conservation subject to Subsections (d) and (e) of this section and shall contain the following components for the entire site:

[Amended 6-18-2002 by Bill No. 02-7]

A topographic map delineating the limits of tidal wetlands, intermittent and perennial streams and steep slopes over twenty-five percent;

A soils map delineating soils with structural limitations, hydric soils or soils with a soil K value greater than 0.35 on slopes of fifteen percent or more;

Forest stand maps indicating community groups, location and size of trees and showing dominant and codominant forest types;

Location of one-hundred-year floodplains as shown on the United States Department of Housing and Urban Development, Federal Insurance Administration, Flood Insurance Rate Maps for Worcester County;

Information required by the Worcester County Forest Conservation Manual; and

Other information the department determines is necessary to implement this Subtitle.

Substitution. A concept plat or plan, preliminary plat or plan, sediment and erosion control plan, site plan, or other appropriate document, verified by a site visit if appropriate, may substitute for the forest stand delineation required by Subsection (c) hereof if:

[Added 6-18-2002 by Bill No. 02-7[1]]

There is no forest on the site; or

No forest on the site is to be cut, cleared or graded for the proposed use and all forest on the site is to be subject to a long-term protective agreement.

[1]

Editor's Note: This bill also redesignated former Subsections (d) and (e) as Subsections (e) and (f), respectively.

Review by department.

Within thirty calendar days after receipt of the forest stand delineation, the department shall notify the applicant whether the forest stand delineation is approved, or whether additional information is required. Upon receipt of such additional information, the department shall have thirty calendar days to approve the forest stand delineation.

If the department fails to notify the applicant within thirty days, the delineation shall be treated as approved.

The department may require further information or provide for an additional fifteen calendar days under extenuating circumstances.

Approval required. A forest stand delineation must be approved by the department. The approved forest stand delineation shall remain in effect for a period of five years.

§ NR 1-407 Forest conservation plan.

Submission required. After approval of the forest stand delineation, a forest conservation plan shall be submitted. Such forest conservation plan shall be submitted with the first of the following applications for development plan approval:

A preliminary subdivision plan;

A site development plan; or

An application for grading or erosion and sediment control approval.

Preparation. The forest conservation plan shall be prepared and signed by a licensed forester, licensed landscape architect or other qualified professional.

Information required. The forest conservation plan shall include the following elements:

An approved forest stand delineation according to the criteria established in the Worcester County Forest Conservation Manual and § NR 1-406 of this Subtitle.

A map of the site drawn at the same scale as the grading or subdivision plan.

A table that lists, in square feet:

The net tract area;

The total existing forest area;

The area of forest conservation required; and

The total area of forest conservation that the applicant proposes to provide, including both on-site and, if applicable, off-site areas.

For any forested areas which cannot be retained, demonstrate:

How techniques for forest retention have been exhausted;

Why priority forest and priority areas specified in the Worcester County Forest Conservation Manual cannot be left in an undisturbed condition;

If priority forest and priority areas cannot be left undisturbed, how the afforestation or reforestation will be carried out in compliance with this Subtitle;

Where on the site in priority areas afforestation or reforestation is proposed; and

Where off the site in priority areas afforestation or reforestation is proposed.

A clear graphic indication of the forest conservation to be provided on the site, showing areas where retention of existing forest, reforestation or afforestation is planned.

A construction timetable showing the sequence for tree conservation procedures which will allow for sufficient protection of trees prior to or during any construction, clearing or grading.

A reforestation plan with a timetable for planting, a description of the site, site preparation methods, species, size and spacing of planting stock, and any other information required by the Worcester County Forest Conservation Manual.

(8)

An afforestation plan, if required, with a timetable for planting, description of the site, site preparation methods, species, size and spacing of planting stock, and any other information required by the Worcester County Forest Conservation Manual.

(9)

Show locations and types of protective devices to be used during construction activities to protect trees and areas of forest designated for conservation.

(10)

Show the planned limits of disturbance, including any forest disturbance reasonably anticipated as a result of future development within the subject area.

(11)

Show planned stockpile areas.

(12)

Incorporate a schedule for completion to assure that all required afforestation and reforestation occurs as required by §§ NR 1-408 and NR 1-410 herein.

(13)

Incorporate the details of a short term management agreement to be in effect for two full growing seasons, describing how the areas designated for afforestation and reforestation will be maintained to ensure protection and satisfactory establishment, including:

Watering;

Reinforcement planting provision if survival rates fall below required standards, as set forth in the Worcester County Forest Conservation Manual;

Provisions for access by the department to the afforestation or reforestation site; and

Such guaranty as required in § NR 1-415 herein.

(14)

Incorporate the details of all anticipated perpetual protective agreements to provide protection for areas of forest conservation, including areas of afforestation, reforestation, and retention by means of conservation easements, deed restrictions, covenants, timber management plans, forest conservation and management agreements or other similar devices to provide preservation at all times, as described in the Worcester County Forest Conservation Manual. These restrictions shall be noted on the record plat and deeds, and shall be in effect at all times.

(15)

Incorporate details of any timber management plans in place or expected to be utilized in all areas of retention, reforestation or afforestation.

(16)

Whenever the afforestation or reforestation is to occur off-site, the person required to conduct such planting shall provide the department:

An executed deed conveying title to the site;

An executed conservation easement agreement;

Written and legally recorded evidence of a landowner's consent to the use of a selected site; or

Other written evidence of a possessory or ownership interest in a selected site.

(17)

All forest conservation plans shall be submitted in an electronic geographic information system or computer-aided design format tied to the Maryland State Plane coordinates.

[Added 1-18-2011 by Bill No. 10-1]

Review and approval by department. Within forty-five calendar days after receipt of the forest conservation plan, the department shall notify the applicant by mail whether the plan is approved or disapproved. The department may extend the deadline with the approval of the applicant. Such notification shall be effective upon mailing. All forest stand delineations and forest conservation plans must be approved by the department before a preliminary subdivision plan or site plan is approved by the Planning Commission.

Revocation of permit. The county may refuse to issue or may revoke a building permit, zoning permit or stormwater management permit for any property found to be in non-compliance with this Subtitle.

Approval required. If a forest conservation plan is required by this Subtitle, a person may not cut, clear or grade until the department has approved the plan.

Alteration of plan. The forest conservation plan cannot be altered without approval from the department.

Stop work order and revocation. The department may issue a stop work order or may revoke an approved forest conservation plan. Prior to revoking approval of a forest conservation plan, the department shall notify the owner and/or developer in writing and provide an opportunity for a presentation of evidence before the department. A stop work order shall be issued for the site until the issue of revocation has been finally resolved. Such stop work order or revocation shall be issued by the department if it finds that:

Any provision of the plan has been violated;

Approval of the plan was obtained through fraud, misrepresentation, a false or misleading statement or omission of a relevant or material fact;

Changes in the development or in the condition of the site necessitate preparation of a new or amended plan; or

Approval of the forest stand delineation is revoked.

§ NR 1-408 Afforestation.

Afforestation requirement. Unless specifically exempted under the provisions of § NR 1-403(b) herein, a person making application after the effective date of this Subtitle for subdivision or site plan approval, a grading permit or a sediment control permit for an area of land of forty thousand square feet or greater, shall:

Conduct afforestation on the lot or parcel in accordance with the following:

[Amended 1-18-2011 by Bill No. 10-1]

A subject area having less than twenty percent of the net tract area in forest cover shall be afforested up to at least twenty percent of the net tract area in the following zoning districts as specified in the Worcester County Zoning Ordinance:

A-1 Agricultural District;

A-2 Agricultural District;

RP Resource Protection District; and

E-1 Estate District.

A subject area having less than fifteen percent of its net tract area in forest cover shall be afforested up to at least fifteen percent of the net tract area in the following zoning districts as specified in the Worcester County Zoning Ordinance:

R-1, R-2, R-3, and R-4 (Residential Districts);

C-1, C-2 and C-3 (Commercial Districts);

I-1, I-2 and CM (Industrial and Commercial Marine Districts);

V-1 Village District;

RPC Residential Planned Community Floating Zone; and

CA Commercial Airport District.

Comply with the following when cutting into forest cover that is currently below the afforestation percentages described in §§ NR 1-408(a)(1)A and B herein:

The required afforestation level shall be determined by the amount of forest existing before cutting or clearing begins; and

Forest cut or cleared below the required afforestation level shall be reforested or afforested at a two to one ratio and added to the amount of afforestation necessary to reach the minimum required afforestation level, as determined by the amount of forest existing before cutting or clearing began.

Afforestation standards. Standards for afforestation shall be as set forth in the Worcester County Forest Conservation Manual.

§ NR 1-409 Retention.

Retention priorities. The following trees, shrubs, plants, and specific areas shall be considered priorities for retention and protection and shall be left in an undisturbed condition, with the exception of general woodlot management, unless the applicant has demonstrated to the satisfaction of the Department that reasonable efforts have been made to protect them and the plan cannot be reasonably altered:

[Amended 8-8-1995 by Bill No. 95-8; 6-18-2002 by Bill No. 02-7; 1-18-2011 by Bill No. 10-1]

Trees, shrubs, and plants located in sensitive areas, including the one-hundred-year floodplain, intermittent and perennial streams and their buffers, steep slopes, nontidal wetlands and their buffers, and critical habitats.

Forest communities located in sensitive areas, including the one-hundred-year floodplain, intermittent and perennial streams and their buffers, steep slopes, nontidal wetlands and their buffers and critical habitats;

Contiguous forest that connects the largest undeveloped or most vegetated areas of land within and adjacent to the site;

Forest communities containing species identified on the list of rare, threatened, and endangered species of the United States Fish and Wildlife Service or the Maryland Department of Natural Resources;

Trees that:

Are part of an historic site;

Are associated with an historic structure; or

Have been designated by the state or the Department as a national, state or county champion tree; and

Any tree, in healthy condition, having a diameter measured at four and one-half feet above the ground of:

Thirty inches or more; or

Seventy-five percent or more of the diameter, measured at four and one-half feet above the ground, of the current State Champion Tree of that species as designated by the Maryland Department of Natural Resources and listed in the Worcester County Forest Conservation Manual.

Standards for protecting trees from construction activities. Before cutting, clearing, grading or construction begins on a site for which a forest conservation plan is required by these regulations, the applicant shall employ protective devices as defined and described in the Worcester County Forest Conservation Manual to protect retained trees and forest areas from construction activities.

§ NR 1-410 Reforestation.

Reforestation requirements. Forest cover cleared, including any forest disturbance reasonably anticipated as a result of future development within the subject area, shall be reforested in accordance with the following requirements.

[Amended 1-18-2011 by Bill No. 10-1]

In the A-1, A-2 or RP Zoning Districts as established in the Worcester County Zoning Ordinance one-quarter acre shall be planted for each acre cleared, provided that at least fifty percent of the net tract area remains in forest cover. For any clearing which results in a reduction in forest cover to below fifty percent of the net tract area, reforestation shall then be required at the rate of two acres planted for each acre cleared.

In the E-1 Zoning District as established in the Worcester County Zoning Ordinance one-quarter acre shall be planted for each acre cleared, provided that at least twenty-five percent of the net tract area remains in forest cover. For any clearing which results in a reduction in forest cover to below twenty-five percent of the net tract area, reforestation shall be required at the rate of two acres planted for each acre cleared.

In the R-1, R-2, R-3, R-4, V-1, or CA Zoning Districts as established in the Worcester County Zoning Ordinance one-quarter acre shall be planted for each acre cleared, provided that at least twenty percent of the net tract area remains in forest cover. For any clearing which results in a reduction in forest cover to below twenty percent of the net tract area, reforestation shall then be required at the rate of two acres planted for each acre cleared.

In the C-1, C-2, C-3, I-1, I-2 or CM Zoning Districts as established in the Worcester County Zoning Ordinance one-quarter acre shall be planted for each acre cleared, provided that at least fifteen percent of the net tract area remains in forest cover. For any clearing which results in a reduction in forest cover to below fifteen percent of the net tract area, reforestation shall then be required at the rate of two acres planted for each acre cleared.

In the RPC Residential Planned Community Floating Zone as established in the Worcester County Zoning Ordinance one-quarter acre shall be planted for each acre cleared, provided that at least fifteen percent of the net tract area remains in forest cover. For any clearing which results in a reduction in forest cover to below fifteen percent of the net tract area, reforestation shall then be required at the rate of two acres planted for each acre cleared.

Reforestation credits. There shall be a credit, measured against the reforestation requirement, of one acre for each forested acre retained above the percentages specified in this section.

§ NR 1-411 On-site afforestation or reforestation.

Unless an exception or adjustment is granted pursuant to § NR 1-416 herein, any required afforestation or reforestation shall occur on the subject area in accordance with the provisions specified in the Forest Conservation Manual with regard to priorities and preferred sequence.

§ NR 1-412 Off-site afforestation, reforestation or forest mitigation banking.

Exception required. A person required to afforest or reforest may apply for an exception or adjustment pursuant to § NR 1-416 herein to allow for any or all required afforestation or reforestation to be accomplished on an alternate site. Any such off-site afforestation or reforestation shall be in accordance with the provisions specified in the Forest Conservation Manual with regard to priorities and preferred sequence.

Criteria for alternate site. The Board of Zoning Appeals may approve an alternate site with consideration to the proximity to the subject area, the land use in the vicinity of the alternate site, the existing forest cover on the alternate site, and such other matters as the Board of Zoning Appeals may determine to be appropriate. Off-site mitigation areas can include stream buffers which must be a minimum one hundred feet in width.

Special conditions. In granting an exception for an off-site afforestation or reforestation the Board of Zoning Appeals may impose such conditions as they determine necessary and appropriate to carry out the purpose and intent of this Subtitle.

Forest mitigation banking. To be eligible for forest mitigation banking, persons subject to this subtitle must demonstrate to the department's satisfaction that on-site or other off-site afforestation or reforestation requirements cannot reasonably be met. To meet their obligations under this subtitle, such persons may purchase credits from an approved forest mitigation bank. Credits from forest mitigation banks shall only be issued in increments of one-tenth of an acre. The credits shall be debited from an approved forest mitigation bank prior to the issuance of a sediment and erosion control permit.

[Added 6-18-2002 by Bill No. 02-7]

A forest mitigation bank may be created from which applicants may purchase credits to meet the afforestation or reforestation requirements of this subsection. Prior to approval of the forest mitigation bank by the department, it must be demonstrated that the proposed forest mitigation bank meets the following criteria:

The proposed forest mitigation bank site shall possess all of the following characteristics:

Shall be at least one acre in size and at least fifty feet in width;

Shall be located outside of a designated Priority Funding Area; and

Shall be located within the same forest conservation watershed as any land use activity which seeks to purchase a credit from the forest mitigation bank site.

The proposed forest mitigation bank site shall possess at least one of the following desired characteristics:

Located along a coastal bay or a perennial or intermittent stream;

Adjacent to and joined with an existing forested area of at least fifty acres in size;

Designated as being within a state or County greenway node or corridor;

Located within a one-hundred-year floodplain;

Located within the C-1 Conservation District as defined by § ZS 1-108 of the Worcester County Zoning Ordinance and as shown on the official Zoning Maps; or

Wetlands comprise no more than twenty-five percent of the site.

Forest mitigation banks must be planted and maintained in accordance with the most current Worcester County Forest Conservation Law and Forest Conservation Manual, and in accordance with the approved forest mitigation bank agreement and in accordance with the following additional requirements:

Tree species shall be native to Worcester County and selected from a list of approved species as set forth in the Worcester County Forest Conservation Manual;

Natural regeneration (secondary succession) is permitted, provided that a seed source exists;

Loblolly pine shall comprise no more than eighty-five percent of the total planting and at least four species of trees shall be planted; and

Plantings shall be viable and established for a minimum of two years before forest mitigation banking credits may be transferred.

Applicants seeking approval by the department to create a forest mitigation bank site shall submit the following to the department:

A completed forest mitigation bank application form.

A forest mitigation bank plan containing all of the following information:

A site vicinity map.

A simplified forest stand delineation that meets the requirements of § NR 1-405 hereof.

A detailed plan prepared by a qualified professional that includes the following information:

A timetable and description of the site and soil preparation needed; and

ii.

Species, size and spacing to be utilized.

A maintenance agreement for a period of at least two years, describing how the areas designated for afforestation or reforestation will be maintained to ensure protection and satisfactory establishment, including:

Watering;

ii.

Reinforcement planting provision if survival rates fall below required standards, as set forth in the Worcester County Forest Conservation Manual;

iii.

Provisions for access by the department to the afforestation or reforestation site; and

iv.

Such guaranty as required by § NR 1-415 hereof.

A copy of the property's deed.

Title information demonstrating the ability to enter into a forest mitigation banking easement and to provide sufficient access to the property for inspection purposes.

A description of a forest mitigation bank credit exchange tracking system.

The owner of the proposed forest mitigation bank site and the County shall enter into a forest mitigation banking agreement that includes:

The approved afforestation or reforestation plan;

A system for marking and tracking debited portions of the bank; and

An easement, deed restriction or covenant which requires the subject land to remain forested in perpetuity and to be used in a manner consistent with forest conservation as described in the Worcester County Forest Conservation Manual; and

A statement that the bank may not debit any portion of the forested land until at least two years of successful growth has been achieved unless:

The property owner has planted twenty-five percent more area than the area of the debited tract; and

The property owner has posted a bond or alternate form of security with the department.

§ NR 1-413 Payment in lieu of afforestation and reforestation.

Forest Conservation Fund. The County Commissioners shall establish, by resolution, a Forest Conservation Fund, which shall be managed in accordance with the County Financial Management Rules. Payments made to the fund shall be used only for the purpose authorized by this Subtitle and may not revert to the general fund of the county.

Exception required. A person required to afforest or reforest may apply for an exception or adjustment pursuant to § NR 1-416 herein to allow for payment to the Forest Conservation Fund in lieu of any or all required acres of afforestation or reforestation.

Amount of payment. If a person subject to this ordinance demonstrates to the satisfaction of the Department that requirements for reforestation or afforestation on-site or off-site cannot be reasonably accomplished and appropriate credits generated by a forest mitigation bank in the County or the same watershed are not available, the person shall contribute money into the Forest Conservation Fund. Such payment must be received by the County Commissioners prior to recordation of a subdivision plat, approval of a site plan, or issuance of a grading permit or sediment control permit for the subject area. The payment will be calculated as follows:

[Amended 6-16-2020 by Bill No. 20-4]

For a project inside a priority funding area, as defined in Natural Resources Article § 5-1610, Annotated Code of Maryland, as from time to time amended, at a rate of 30.5 cents per square foot of the area of required planting, which may be adjusted for inflation as determined by annual state regulation; or

For a project outside a priority funding area, at a rate that is twenty percent higher than the rate set under § NR 1-413(c)(1) hereof, of the area of required planting.

Use of payments.

[Amended 1-18-2011by Bill No. 10-1; 6-16-2020 by Bill No. 20-4]

All payments made to the Forest Conservation Fund pursuant to this section shall be used by the County Commissioners only on the costs directly related to reforestation and afforestation projects, including site acquisition and preparation, maintenance of existing forests and achieving urban canopy goals. However no more than ten percent of said payments may be used for the purchase of equipment necessary to accomplish reforestation and afforestation.

The Department must accomplish the reforestation or afforestation for the equivalent number of acres for which the money is deposited within two years or three growing seasons, whichever is a greater time period, after the receipt of the money. Any portion that has not been used to meet the afforestation or reforestation requirements shall be returned to the person who provided the money.

Project location. The County Commissioners shall determine suitable and desirable reforestation and afforestation project sites which may include existing or planned county park land.

§ NR 1-414 Standards for reforestation and afforestation.

[Amended 6-18-2002 by Bill No. 02-7]

Tree species and planting techniques. Tree species used for afforestation or reforestation shall be native to Worcester County and selected from a list of approved species as set forth in the Worcester County Forest Conservation Manual. Planting techniques and maintenance of trees planted shall be as established in the Worcester County Forest Conservation Manual.

Hierarchy of priorities for location. The hierarchy of priorities for location of afforestation and reforestation areas is as follows:

Of highest priority shall be those areas within fifty feet of the mean high tide line of the coastal bays and their tributaries and within fifty feet of tidal wetlands.

Of second priority shall be those areas within fifty feet of nontidal wetlands and intermittent and perennial streams; those areas within one-hundred-year floodplains, steep slopes, and critical habitats; those areas suitable to establish or enhance corridors (three hundred feet in width if practical) to connect existing forests; and those areas suitable to increase the size of existing forests.

Of third priority are areas within land use buffers.

Of lowest priority are other areas as determined by the department.

Street trees. Street trees may be used in a municipal corporation with a tree management plan, in an existing population center designated in the County Master Plan, or in any other designated area approved by the department as part of a local program. Such use of street trees shall be in accordance with criteria established by the local program and subject to the approval of the department. Street trees are a permissible step in the preferred sequence for afforestation or reforestation and, based on a mature canopy coverage, may result in the granting of full credit as a mitigation technique.

Off-site protective easements. Acquisition of an off-site protective easement for existing forested areas as specified in Subsection (b) hereof and not currently protected, may be used as a mitigation technique, in which case the afforestation or reforestation credit granted may not exceed fifty percent of the area of the forest cover protected.

§ NR 1-415 Bonding and protective agreements.

Required.

Any person other than a federal, state or county agency required to reforest or afforest under this Subtitle shall enter into a short term management agreement with the County Commissioners requiring adherence to a short term management plan for the afforested or reforested area for two full growing seasons from the date of planting. The plan shall be prepared in accordance with the Worcester County Forest Conservation Manual and shall be a part of the forest conservation plan provided by the person reforesting or afforesting. The short term management agreement as well as completion of reforestation or afforestation in accordance with the approved forest conservation plan shall be bonded to the County Commissioners.

Any person required to retain, afforest or reforest under this Subtitle shall enter into a perpetual protective agreement for the forest with the County Commissioners.

General requirements of agreement. Approved forest conservation plans shall constitute binding agreements between the County Commissioners and the developer. Short term management agreements and perpetual protective agreements shall be in a form approved by the department and shall be signed, witnessed and acknowledged before a notary public. Perpetual protective agreements shall be recorded among the Land Records, and short term management agreements may be recorded among the Land Records at the option of the department. Any person entering into a short term management agreement or perpetual protective agreement must have the legal authority to enter into such agreement and shall provide the department with such evidence of title, lienholders and authority as the department may reasonably require. Any lien holders shall subordinate their liens to the agreement, it being the intent that agreements shall constitute a valid binding encumbrance upon the real property described therein and run with the land.

Procedures. The department shall establish such procedures for agreements and bonding as the department may determine necessary in order to carry out the intent of this section.

Bonding requirements. Completion of work required under an approved forest conservation plan and every short term management agreement shall be secured by a bond to the County Commissioners in accordance with this subsection.

The agreement shall include a description of the bond which secures it.

Only cash, bank deposits in federally insured institutions and letters of credit issued by federally insured institutions approved by the County Commissioners, shall be accepted as security for bonds. No corporate surety or property bonds may be accepted.

Every bond shall be in the amount of one hundred twenty percent of the estimated cost of the afforestation or reforestation and management thereof as set forth in the forest conservation plan and described in the short term management agreement. The estimated cost shall be determined by the department based upon the plan, Forest Conservation Manual, current prices and any such data provided by the applicant. Bond amounts shall be divided into two amounts, one for the completion of the forest conservation plan and one for the short term management agreement.

[Amended 3-15-2011 by Bill No. 11-1]

Bonds shall be on forms approved by the department.

Bond reductions and release.

Partial release may be requested after reforestation or afforestation upon the following schedule.

For vegetation planted between January 1 and May 15, a partial release of up to fifty percent of the bond may be granted by the County Commissioners after September 15 of that year.

For vegetation planted between May 16 and June 30, a partial release of up to fifty percent of the bond may be granted by the County Commissioners after June 1 of the following year.

For vegetation planted between July 1 and December 31, a partial release of up to fifty percent of the bond may be granted by the County Commissioners after September 15 of the following year.

Upon satisfactory completion of the short term management agreement the bond shall be released.

Requests for bond reduction or release shall be in writing directed to the department and shall be approved or disapproved by the County Commissioners after recommendation by the department.

Forfeiture of bond. In the event of a failure to complete or violation of a forest conservation plan or short term management agreement the bond may be forfeited in whole or in part by the County Commissioners after recommendation of the department. The County Commissioners shall provide the person failing to complete or in violation of the forest conservation plan or short term management agreement with an opportunity to be heard prior to forfeiture upon not less than fifteen days written notice. Bond proceeds may be used by the County Commissioners to correct or complete the work required by the forest conservation plan or short term management agreement.

Perpetual protective agreements.

Any person required to retain, reforest or afforest shall enter into a perpetual protective agreement to ensure that the forest retained or planted shall be protected against clearing.

The department may accept as a protective agreement any one of the following which, in the determination of the County Commissioners, ensures compliance with the intent of this Subtitle.

State Forest Conservation Management Agreement as established in the Tax Property Article of the Annotated Code of Maryland.

Any forest or tree conservation program or reforestation program established under the Natural Resources Article of the Annotated Code of Maryland.

An agreement in a form required by the County Commissioners.

Right of entry. Forest conservation plans, short term management agreements and perpetual protective agreements shall include such rights of entry and easements to ensure compliance therewith and with this Subtitle as the County Commissioners may reasonably require.

§ NR 1-416 Adjustments and exceptions.

Power to grant.

The Board of Zoning Appeals may grant, upon specific appeal, such adjustments of and exceptions to the requirements of this Subtitle as will not be contrary to the purposes hereof, where, owing to special or unique conditions, a literal enforcement of the provisions of this Subtitle would result in unnecessary hardship. An adjustment of or exception to the terms of this Subtitle shall not be granted unless the applicant has demonstrated each of the following:

Specifically how the unwarranted hardship would be caused;

How enforcement of this Subtitle will deprive the applicant of rights commonly enjoyed by others;

How the case, which is subject to the appeal, is unique and what special conditions apply;

How the intent of the Subtitle will be satisfied; and

How the adjustment or exception may not adversely affect water quality.

The exception or adjustment may not be based upon conditions or circumstances which are a result of actions of the applicant. The condition or circumstances for which the adjustment or exception is granted shall not be one that would be reasonably addressed under legislation of general applicability consistent with the intent of this Subtitle. The Board of Zoning Appeals may not exempt any person from the requirements for a short term management or perpetual protective agreement.

The Board of Zoning Appeals may, if all of the above criteria are met, grant an adjustment or exception to allow a payment in lieu of retention, reforestation or afforestation in accordance with the provisions of § NR 1-413 of this Subtitle.

Findings. The Board of Zoning Appeals shall make specific findings in each case for adjustment or exception.

Procedure.

Request for adjustment or exception shall be in writing, signed by the applicant and shall be heard by the Board of Zoning Appeals after at least fifteen days notice. The Maryland Department of Natural Resources shall be entitled to such notice and to intervene in any application for an adjustment or exception.

Applications for adjustment or exception shall be made upon such forms as the department shall provide and shall provide in specificity the adjustment or exception requested and the reasons therefor.

Any application for an adjustment or exception shall include a copy of the forest stand delineation for the subject area.

§ NR 1-417 Inspections.

The department, or its agent, may conduct such inspections as it may from time to time determine appropriate to ensure compliance with this Subtitle. Any person required to comply with a declaration of intent, forest conservation plan or simplified forest conservation plan shall be deemed to have granted such rights of access as may be reasonably required to perform such inspection.

§ NR 1-418 Enforcement and penalties.

Civil infraction. Violations of the provisions of this Subtitle or failure to comply with any of its requirements shall constitute a civil infraction.

Who may be considered violator. The owner or lessee of any parcel of land or part thereof, and any architect, builder, contractor, agent or other person who commits, participates in, assists in or maintains such violation, may each be found guilty of a separate offense and suffer the penalties herein provided.

Declarations of intent.

Any person found in non-compliance with a declaration of intent or who conducts a regulated activity on an area covered by a declaration of intent within five years of the effective date of such declaration of intent may result in loss of exemption and may be subject to the provisions of this Subtitle with regard to afforestation and reforestation. In addition, such person shall be subject to other enforcement action specified in this section. In its determination of appropriate enforcement action, the department may consider whether such violation of a declaration of intent is a knowing violation of this Subtitle.

Notwithstanding any other provision of this section, the department shall require a person failing to file a declaration of intent prior to proceeding with an activity which would otherwise have been exempt upon filing of such declaration of intent to be subject to a stop work order issued by the department and file a declaration of intent prior to continuation of any such activity. Where such person fails to comply with a stop work order or fails to file a declaration of intent, the department may proceed with additional enforcement actions as specified in this section.

Revocations. Nothing herein contained shall prevent the county from revoking any permit, adjustment or exception, or plan approval from the offender or from taking such other lawful action as is necessary to prevent or remedy any violation of this title.

Stop work order. The department may issue a stop work order against a person who violates a provision of this ordinance or a regulation, order, approved forest conservation plan, or maintenance agreement. The department may also seek an injunction requiring the person to cease violation of these regulations and take corrective action to restore or reforest an area.

Order of court. To the maximum extent reasonable, the court shall order the violation corrected and may issue such additional orders as the court may deem appropriate to safeguard against future violations of this Subtitle.

Additional penalties. In the case of the admission of or conviction on a civil infraction issued for the unlawful clearing of forest cover, the department shall assess a penalty of thirty cents per square foot for any forest cover unlawfully cleared. The assessment shall be levied against the property owner of the land so cleared. Failure of the property owner to pay the assessed penalty within ninety days of the date of the assessment shall result in the assessment becoming a lien on said property in the same manner as property taxes. The penalty shall be paid to the county and shall be deposited in the Forest Conservation Fund.

Notification. Within fifteen days of the commencement of any enforcement action the Department shall notify the Maryland Department of Natural Resources of the alleged infraction and the enforcement action undertaken.

[Added 1-18-2011 by Bill No. 10-1]

§ NR 1-419 Appeal of decision.

Appeal to Board of Zoning Appeals. Any person subject to the provisions of this Subtitle who alleges that there is an error in the application of the law (but not in discretionary judgment), in any order, requirement, decision or determination made by the department in the administration or enforcement of this Subtitle with respect to any application or project of said person may appeal the order, requirement or decision to the Board of Zoning Appeals. The appeal shall be made on such forms and with such fee as determined by the County Commissioners.