By: Danielle Ohl, Capital Gazette reporter
The Annapolis City Council in November passed a law to protect the city’s trees. For every tree cut own, a tree would have to be replanted.
So, it’s come as a shock to some — including the law’s lead sponsor Alderman Rob Savidge — that the first planned development submitted under the law proposes to replace exactly zero trees.
National Lutheran, a nonprofit builder of retirement communities, submitted plans in January for the The Village at Providence Point, a continuing care retirement community proposed for the intersection of Forest Drive and Spa Road. Those plans include clearing 30 acres of priority forest but replacing none.
How could this square with a law requiring developers to either pay a fee or replant every acre cleared?
It comes down to something called the “break even point.”
When a developer submits a forest conservation plan, engineers must make a number of calculations on a city-provided, state-developed worksheet. One of the calculations is for a break-even point, marking the number of acres at which a developer can meet conservation requirements through forest retention alone.
To put it more simply: A developer has plans to build a high-density development on a 100-acre piece of completely forested land. She has to conserve 20 percent, or 20 acres, of that forest if she doesn’t want to replace two trees for every one cut down. So, she conserves the 20 acres plus an additional 40 acres and cuts the other 40 down. Under the old law, she would get 40 acres of credit for her preservation efforts, negating the 40 she would be required to replace.
Thus, the break-even point is 40 acres. But the break-even point only matters if reforestation requirements can be zeroed out by reforestation credits earned.
In the Providence Point plans, engineers use the break-even point calculation to justify cutting down 30 acres without replanting.
Planning and zoning director Pete Gutwald, in correspondence with the Department of Natural Resources just before the new law passed, indicated the city would keep the break-even point as a part of the calculation worksheet.
At an environmental matters committee meeting Wednesday, Gutwald said he initially viewed the break-even calculation as “silent” under the old law, not necessarily intrinsically tied to the credit.
But to a number of experts and environmental advocates, keeping the break-even point calculation doesn’t make sense without the credit.
Jeff Horan, a Maryland-licensed forester, worked with the Department of Natural Resources for 28 years and helped develop the original Forest Conservation Act of 1991. He also oversaw writing of the technical manual laying out the worksheets developers across the state use the calculate the trees they can cut down and how many they need to replace.
To Horan, withdrawing the credit nullifies the break-even point.
“In the state law, it provided a quarter acre for every acre retained. It was meant to give some flexibility to the development of the site,” he said, “but in this case, it doesn’t apply anymore. (The city) wanted to be punitive for every acre that was removed. The credit is gone and (the break-even point) is not even appropriate in this case.”
Former DNR attorney Thomas Deming concurred, saying there is an absolute correlation between the reforestation credit and the break-even point.
Kate Bohanan, chairwoman of the Environmental Commission, issued a letter to Gutwald and Mayor Gavin Buckley urging the city to reject National Lutheran’s forest conservation plan and require full replanting.
The calculations using a break-even point are outdated, she said in an interview. She pointed to an article in The Capital, in which National Lutheran President Larry Bradshaw expressed willingness to amend the plan should the city require changes.
“If they’re saying that and the city is trying to protect public interest and the environment, they’re not living up to that goal,” she said. “That’s my biggest red flag with this issue.”
The city has just begun to review the Providence Point application, including the preliminary forest conservation plan, and found issues beyond tree replanting, Gutwald said.
To address the break-even point, the planning and zoning department will complete a technical manual, with city-tailored guidance on forest conservation and an updated worksheet eliminated the break-even point.
DNR spokesman Gregg Bortz said the state has not officially approved the law, but was not immediately available to clarify what that would mean for city enforcement.