The City Council is currently considering legislation O-38-16 that would add a no net loss provision to the Forest Conservation Act (FCA) that was passed last fall. Essentially this legislation would require developers to replant trees on a 1 to 1 basis. We commend Aldermen Littmann and Arnett for introducing O-38-16 and pushing for its adoption. Without the adoption of such a no net loss provision, the substantial loss of forest will continue. As an example, under the newly enacted FCA (without the No Net Loss ordinance), 52 acres of the 82 acres of forest at Crystal Spring could theoretically be cleared without any reforestation whatsoever. Thus, we are supporting this legislation with the four amendments listed below.
The City Council will hold a public hearing on the legislation on Monday, February 13, at 7:00pm. If you want more forest and better water and air quality, please come out and testify in support of this legislation.
1. SUPPORT NO NET LOSS WITH CLARIFICATION
The ordinance should clearly spell out this requirement. The Attorney General’s Opinion of October 21, 2015 clearly supports the City’s adoption of a no net loss provision with greater tree replacement requirements, as well as other more stringent requirements. DNR’s wrongful interpretation of the law should not impede the Commission from recommending such measures to protect the remaining City forests or the City Council from adopting these changes.
We suggest that the following language be included:
“Any forest cleared for a development project shall be replanted at a ratio of at least 100% of the acreage cleared to achieve a no net loss of forest in the City. This reforestation shall occur in priority order on site, or if not possible, then within a watershed in the City of Annapolis as close to the site as possible.”
2. ADOPT MORE STRINGENT REPLANTING REQUIREMENTS ALREADY IN CITY CODE
City Code Chapter 17.09.070, the Tree Replacement Ordinance, requires more stringent provisions for replanting than the current forest conservation ordinance. The law allows the City to require the developer to replace trees cleared with similar species (sometimes even higher than 1 to 1 ratio depending on the size of the tree), but the City has chosen not to apply these requirements to larger projects. City Code Chapter 17.09.070 allows such discretion where there are other laws less stringent.
We request an amendment that would add this language:
“Where any provision of the state Forest Conservation Act, the City Forest Conservation Act (O-22-16), or City Code Chapter 17.09.070 (the Tree Replacement Ordinance), or any other provision of state or City law provides for more stringent measures for reforestation or replanting, the more restrictive requirements shall be applied.”
3. REQUIRE A VARIANCE FOR CLEARING PRIORITY FOREST
Priority forest are given special protection under the state FCA and under the newly adopted City FCA. City code now reads that priority forests “shall be left in an undisturbed condition unless the applicant has demonstrated, to the satisfaction of the Department that reasonable efforts have been made to protect them and the plan cannot reasonably be altered.”
Unfortunately, the interpretation of this restrictive language has been abused by local jurisdictions around the state to support developers’ plans to clear such priority forest. The City should require developers’ to apply for a variance before any clearing of priority forest. They should take it a step further by requiring a public hearing for such a variance and all other variances under the new FCA ordinance. Such a variance should be appealable as are other variances under the zoning code, including those granted for the height of fences or size of signs. Currently, there are no procedures for public notice of variances from the City FCA, no public comment period provided, and no hearings required. Variances can be granted from any provision of the FCA and are serious matters where formal procedures with public input should be provided but are not. Surely protection of forests is at least as important as fence height and sign variances.
Suggested amendment language: “Any applicant who proposes to clear any priority forest shall apply for a variance to authorize the clearance of priority forest. All variances under the City forest conservation ordinance may be granted only after a public hearing and such granting or denial of a variance may be appealed by an aggrieved party to the Board of Appeals and then to the Circuit Court.”
4. RESTORE APPEAL RIGHTS FOR FOREST CONSERVATION PLAN APPROVALS
The language in O-38-16 regarding appeals of Forest Conservation Plan (FCP) approvals is so narrowly constructed so as to apply only to a project for which a FCP was approved prior to the effective date of the new City FCA. This clause appears to apply only to Parkside Preserve and would not apply to other projects under consideration such as Crystal Spring where FCPs have been filed under the previous system but not yet approved.
We suggest this amended language be applied to all pending projects where an FCP has been filed and to new flings:
“An aggrieved party may appeal the approval of a final Forest Conservation Plan to the Board of Appeals and then, to the Circuit Court. No forest may be cleared until such an appeal is finally adjudicated.”