Park and Planning Delays Approval

At the May 21, 2019 Board of Directors Meeting, an update to the delay in obtaining Park and Planning Commission approval was provided by Leisure World employees Tom Snyder and Kevin Flannery

Click on the arrow below to listen to the audio

As seen in this lengthy email thread, the Park & Planning staff are unable to provide the many times requested documentation they used to support their recommendation for the LW site plan application approval. As a result, the final Planning Board approval - which Leisure World expected in March, 2019 - has been withheld indefinitely.

The following demonstrates their inability to produce the documents requested by "JustUs" - documents that the P&P staff stated as the basis for allowing the destruction of over 65 mature trees, including a State of Maryland registered Champion tree -

Subject: site plan # 820170120 re:Forest Conservation Act - DESTRUCTION OF CHAMPION TREE -Tree Canopy Act

We await receipt of the original Development Plan and its approval documentation, without which, invalidates LW site plan # 820170120.

slk

Subject: RE: site plan # 820170120 re:Forest Conservation Act - DESTRUCTION OF CHAMPION TREE -Tree Canopy Act

Ms. Katzman,

I have been working on trying to gather the information and answers you have requested, but, because the records for this development date back decades, there is considerable time and effort required to produce some of the documents. Also, while I am trying to be responsive to your requests, I have a full plate of other work to do. I will try to address the questions below that I can answer now. I have requested assistance to do the research to get the rest of it. However, since the matter has been decided by the Planning Board, I cannot continue to research the project. I am copying on this reply our Deputy Director of Planning, Robert Kronenberg, and our Chief Counsel, Matthew Mills. I would ask that further requests for information be directed to these gentlemen.

In answer to your questions:

A revised checklist and tree inventory was not required. I personally do not recall other instances where a corrected checklist was required, nor a corrected tree inventory provided on a Natural Resources Inventory or Forest Conservation Exemption once the documents have been approved. Instead, the omitted or incorrect information is corrected and included on subsequent plans as they are reviewed. This was done here. The presence of the tree and its status as the County Champion Japanese Pagoda tree was acknowledged in the review and included in the staff report. The tree is shown on the plans. The Planning Board’s review and approval were made with full knowledge of the tree and its significance. In my experience, this application was not treated any differently than any other plan that includes errors on earlier documents.

1. A Planned Unit Development is designated by placing a zone over a large area, with the intention of developing an entire community over a period of time. One of the Planned Unit Development zones is the Planned Retirement Community (PRC) zone. Approval of the PRC zone requires approval of a Development Plan covering the entire area. The larger site covered by the Development Plan is developed over time through the approval of Site Plans covering portions (“tracts”) of the Development Plan. The Development Plan area, which is the area subject to the planned unit development, is what the exemption language refers to when it says that, “Even if site plan approval has not been obtained before July 1, 1992, for the tract, the planned unit development is exempt if it (the overall development subject to the planned unit development zoning) is 75% or more complete on January 1, 1992, as measured by the total acreage subject to the planned unit development that has received site plan approval.” I have found references in my research to a Development Plan Amendment application from 1988 for this planned unit development (Leisure World). Since it is an amendment to the approved Development Plan, the original Development Plan was approved some years earlier. Since the zoning was granted in the 1960’s, it is likely that the original Development Plan approval dates to this time period. Leisure World had been building out for over 25 years by Jan. 1, 1992. We are looking for copies of the old plans. In any event, the language in the exemption does not require that the area of the Site Plan be 75% complete by 1992. It says that the Site Plan can be granted the exemption if the planned unit development of which it is a part is 75% complete by 1992.
2. See above.
3. There is a strict definition of “forest” in the Forest Conservation Law: “Forest means a biological community dominated by trees and other woody plants (including plant communities, the understory, and forest floor) covering an area which is 10,000 square feet or greater and at least 50 feet wide. However, minor portions of a forest stand which otherwise meet this definition may be less than 50 feet wide if they exhibit the same character and composition as the overall stand. Forest includes:
4. Areas that have at least 100 live trees per acre with at least 50 percent of those trees having a 2 inch or greater diameter at 4.5 feet above the ground; and
5. Forest areas that have been cut but not cleared.”

The areas being cleared are tree stands, with landscaped areas underneath. More than 5,000 square feet of forest is not being cleared, because the areas being cleared do not meet the definition of forest under the Forest Conservation Law.

1. As I mentioned, we are working on trying to find a copy of the original Development Plan. If the reviewer who first granted the exemption under Section 22A-5(l) in 1998 followed standard procedure, they checked to make sure that the exemption met the qualification that 75% or more of the planned unit development was complete by Jan. 1. 1992. Although that reviewer retired a few years back, I knew them, and they were quite competent. We will, however, continue to try to provide you with the information you seek. We will contact you once we finish the research and provide you with whatever we find.

Thanks for your questions. I have appreciated your passion for the environmental issues related to this review. I have done what I can within the law. Thanks again.

1. where is a "revised" checklist and "tree inventory" that in fact identifies the Champion tree?

2. Forest Conservation Exemption, No. 42016039E states:

3. obviously, the subject site plan was not approved prior to 7/1/92 nor was the "planned unit development" 75% or more complete on 1/1/92.

4. more than "5000 additional square feet of forest" will be cut down as a result of this site plan approval.

5. provide the "development plan" approved by the Planning Board before 1/1/92 under which the " Forest Conservation Exemption, No. 42016039E" was authorized.

slk

Ms. Katzman,

The process I explained at the beginning of this email string is followed on each application that comes in. The law requires that, in order to submit an application for any development plan (such as a Site Plan) to the Planning Board, the application must be accompanied by either a confirmed Forest Conservation Exemption or a Forest Conservation Plan. This Site Plan application, No. 820170120, filed in the year 2017, was accompanied by a confirmed Forest Conservation Exemption, No. 42016039E. The checklist that cited that no champion tree was present was deemed to be an error rather than an outright falsification. The conditions required to confirm the exemption did not include that presence of a champion tree would nullify the exemption. If the language of the exemption stated that the exemption applies only if no champion trees are present, as several of the other exemptions do, this exemption would have been nullified and the applicant would have been required to file a forest conservation plan. But this exemption does not make that requirement. That is just the way the law is written. I wish I could change it, but I can’t.

Steve

are you saying that a original (1970's) site plan application was submitted and approved (if so please provide to me) - and therefore the site plan application for a to be constructed LW admin. bldg. thereby qualifies for a Forest Conservation Plan exemption (referenced by Wigglesworth in his 3/18/19 "confirmation memo"?)

are you aware that the exemption request re: Champion Tree (checklist: (2.3.1) "Champion Trees and trees 75% of state champion" - "Not Present" is falsified?

The Japanese Pagoda tree located between the current admin. bldg. & CH 1 is slated to be destroyed when they demolish the current admin. bldg. to pave it into a parking lot:

I’m sorry. The specific exemption requested is Section 22A-5(l) of the Forest Conservation Law. Here is an image clip from that section of the law:

The language for this exemption in the law is cited in the approval memo. The exemption information that I sent to you, No. 42016039E, is specific to the LW Administration building site plan #820170120, and is referenced in the Staff

Report. This exemption approval does not cover any project other than the current Site Plan Amendment No. 820170120 for the LW Admin. Building. This is all I have that pertains to what you seem to be asking for.

please provide the specific exemption requested and granted re: the current LW Administrtion building site plan #820170120

I’m sorry. I thought you were asking for the specific exemption document for the LW Admin. Building site plan. Could you clarify a bit more? If it is something I have, I will try to provide it to you. I don’t know if this will help, but here is a link to documents associated with the exemption application. http://eplans.montgomeryplanning.org/daiclinks/pdoxlinks.aspx?apno=42016039E

Thanks.

Steve

Steve:

Your email did not have anything in response to my request that you:

"please provide the specific exemption requested and granted re: the current LW Administrtion building site plan.

Subject: RE: re::Forest Conservation Act - DESTRUCTION OF CHAMPION TREE -Tree Canopy Act re: Leisure World of Maryland destruction of trees/Chesapeake Bay Foundation)

please provide the specific exemption requested and granted re: the current LW Administrtion building site plan.

slk

Hi Ms. Katzman,

For the last several years, at least, Forest Conservation Exemptions have been reviewed by staff in our Development Applications and Regulatory Coordination (DARC) Division, so I was not the reviewer for the exemption application. When the application for the Site Plan Amendment came in to me for review, the exemption had already been confirmed. I did some research, and found that a number of forest conservation exemptions (at least 12, I think) have been confirmed under Section 22A-5(l) for different activities on the Leisure World property over the past 20 years or more, with the first confirmed exemption granted in 1998. So the reviewer in 1998 must have had evidence that the application for exemption met the criteria at that time, with others since then granted based on the understanding that this provision has been met.

This answers at least part of your second question. Every time a development plan amendment has been reviewed for approval by the Planning Board over the last 20+ years, the project has qualified for an exemption under Section 22A-5(l) of the Forest Conservation Law. This only covers activities that have required some kind of development plan approval from the Montgomery County Planning Department. It is also likely that many trees may have been removed as a part of projects that are not under the Planning Board’s purview.

While I am unhappy that so many trees have been removed, the removals apparently conform to the law. Beyond that, the Planning Department does not have authority over any tree removal that is not associated with a development plan approval. Unless, and until, the law is changed, it sounds like Leisure World will continue to qualify for this exemption. Wish I had better news to share.

Thanks for reaching out. I really do appreciate it when citizens advocate on behalf of the environment.

Steve:

On Nov. 27, 2017 you wrote:

" In this case the project received confirmation of an exemption under Section 22A-5(l), which is the “grandfathering” provision that we discussed (75% or more complete on January 1, 1992, as measured by the total acreage subject to the planned unit development that has received site plan approval). Confirmation of the exemption means the project is not subject to the requirements of Article II."

1. What documentation did you receive proving "75% or more (Leisure World development) was "complete on January 1, 1992"?

2. What provision of the law or regulation provides non-permitted authorization for Leisure World's continued desecration of the tree canopy, which in 2014, the DEP reported to be an 18% deficit of the recommended 40%? In fact, since 2014 Leisure World has destroyed thousands of additional trees with impunity.

slk

Hi Sheryl,

Your questions deserve some answers. Here is the explanation:

As I mentioned in our first meeting, the Forest Conservation review proceeds in a stepwise fashion. The first thing to determine is whether Chapter 22A (Forest Conservation) applies at all. Section 22A-4 of the law lays out the conditions that determine if the law applies. If the law does apply, then tests are applied to see if the project qualifies for an exemption from Article II of the law under Section 22A-5 or one of the subsequent sections, A-6 to A-9. If the project does not qualify for an exemption, then they proceed to Article II, where the requirements for submitting a Forest Conservation Plan are detailed.

We determined right off the bat that the law does apply. Section 22A-4 begins: “Except as otherwise expressly provided in the Chapter, this Chapter applies to:

1. A person required by law to obtain an approval or amendment to a development plan, diagrammatic plan, project plan, preliminary plan of subdivision, or site plan.” The definition of a site plan in the law says “Site plan means a plan or an amendment to a plan approved under Division 59-D-3 of Chapter 59.”

Since this application is for a site plan amendment, by definition it is included in (a). Therefore the law applies.

The reference to the requirement for review of any project that threatens the viability of a champion tree is also included in Section 22A-4, which is about the applicability of the law. Including the introductory clause at the beginning of Section 22A-4, Section 22A-4(c) would read [Except as otherwise expressly provided in the Chapter, this Chapter applies to:] “a person who performs any cutting or clearing, or any other land disturbing activity that would directly threaten the viability of, any champion tree, wherever located.” So, if this project came in, and did not require a site plan amendment, but proposed an activity that directly threatened the viability of a champion tree, the law would apply. In this case, the law already applies because it is a site plan amendment.

Section 22A-4 goes on to say, “Any person who expects to cut, clear, or grade more than 5,000 square feet of forest or any champion tree, and who believes that the cutting, clearing, or grading is exempt under Section 22A-5, 22A-6, 22A-7, or 22A-8, must notify the Planning Director in writing before performing any cutting, clearing, or grading and seek confirmation from the Director that the cutting, clearing, or grading is in fact exempt from Article II.” In other words, the person proposing to do the cutting, clearing or grading must obtain confirmation of an exemption from Article II of Chapter 22A to do so. This is where it is “except as expressly provided the Chapter.” In this case the project received confirmation of an exemption under Section 22A-5(l), which is the “grandfathering” provision that we discussed (75% or more complete on January 1, 1992, as measured by the total acreage subject to the planned unit development that has received site plan approval). Confirmation of the exemption means the project is not subject to the requirements of Article II.

The requirement to obtain a variance is contained in Article II, Section 22A-12(3), which states, “The following trees, shrubs, plants, and specific areas are priority for retention and protection and must be left in an undisturbed condition unless the Planning Board or Planning Director, as appropriate, finds that the applicant qualifies for a variance under Section 22A-21:

(C) Any tree with a diameter, measured at 4.5 feet above the ground, of:

(i) 30 inches or more; or

(ii)75% or more of the diameter, measured at 4.5 feet above the ground, of the current State champion tree of that species.”

But, since this project has a confirmed exemption, Article II does not apply, so the requirement to obtain a variance does not apply.

The items cited below by Ms. Lutz (requirement to submit a forest stand delineation and forest conservation plan regulatory approval) are the first items required under Article II, which, as we have seen, does not apply to this project because of the exemption. If those items were required, Ms. Lutz is absolutely right, there would usually be a requirement for a public notice and public hearing on the approval of the Forest Conservation Plan (the law does permit some FCP approvals to be done at the Director’s level, i.e. administratively, but that only happens in limited circumstances).

So, the bottom line is that the application appears to be in compliance with the Forest Conservation Law, because the applicant has received confirmation from the Director that the cutting, clearing and grading is exempt from Article II.

I absolutely have no problem with you checking to make sure the applicable laws and regulations are being followed, and appreciate your advocacy on behalf of the environment! Please let me know if you have any other questions. Thanks again.

Hi Sheryl,

Thank you for your thoroughly researched efforts on behalf of clean water. You are clearly informed, and willing to get to the heart of the matter. Below are my responses to your outlined issues. I’ve highlighted the main points for you, please note the follow up item regarding the administration building.

1) The project you describe regarding the Administration building and parking absolutely requires review under the Forest Conservation Act. Montgomery County Code* dictates that review is mandatory for any project that “would directly threaten the viability of any champion tree,” and also for projects that exceed 40,000 square feet in size or would impact 5000 square feet of forest. So there are several aspects of the project you describe that would spark these Forest Conservation requirements:

a. A public submission of a forest stand delineation, which would identify all forests and other natural resources on site, and,

b. The public submission of a forest conservation plan, which strives to preserve all priority forest.

Under current state law, an applicant must provide clear justification and satisfy all criteria for a variance before they can remove a champion tree and certain other state-defined “priority forest.” They are all public documents and the County actually has to provide public notice and hold a public hearing on the plans.** This also means that any approved plan can also be up for public comment, whether they are opponents or proponents. I would be happy to review the forest conservation documents if you can send them. This would include the forest stand delineation, the forest conservation plan, and any information about where the project is in terms of development process and approvals.

Thank you again for your time, and look forward to hearing from you in regards to the administration building.

Best,