Planning Commission - Regular Meeting

Good morning, everyone. It's April 16th, and we're starting our planning board meeting. The first item this morning is item 1C, other preliminary matters. It's the Rosebud House Historic Site and Amendment to the Master Plan of Historic Preservation, where staff is recommending to approve the resolution of adoption for transmission to the full commission. Do I have a motion to approve? the resolution of adoption for transmission to the full commission. Move to approve the resolution of adoption. Second. All in favor? Aye.

Aye.

Aye. The ayes have it, 5-0. And the next is item three, regulatory extension requests. We have two this morning, 9200 Marcel Drive, administrative subdivision extension request number one, and the second one is Sonina Properties Apartments extension request number two for administrative subdivision plan and preliminary final forest conservation plan, where staff is recommending approval of these two extensions. Do I have a motion for approval of these two extensions? I move to approve both extension requests.

Second.

All in favor? Aye. Aye. The ayes have it. Yep, we have full commission this morning. Commissioner Bartley is virtual this morning. So all five of us are here. So we're going to take a short break and then start with item number five, which is the mouth of Monocacy Road bridge over Little Monocacy River, mandatory referral. Our staff is recommending approval with comments. Thank you. Good morning and welcome back. We're on item number five, the mouth of Monocacy Road Bridge over Little Monocacy River, mandatory referral. Our staff is recommending approval with comments. This morning we have Sophia Aldridge presenting this item. Welcome.

Good morning. Thank you, Mr. Chair. Sophia Aldridge from the Transportation Planning Division. I'm here to present the mandatory referral. The applicant is here today, Montgomery County DOT. And up front with me I have Brian Copley, who is the head of bridge design, and Tyler Swift, their consultant. And also presenting with me today is Marco Fuster from the Environment and Climate Division. So for this project, I'm going to give you a little background about the project. I do talk a little bit about the design elements, what is being proposed. We then take a look at the master plan consistency. Marco will address the environmental review. We also have a historic preservation review that has been conducted. And then we conclude with comments. And we do have one commenter who submitted testimony, and they're actually online today. So we can then get to that. So this project, if you've never been there, this is an amazing place to see. It's in Dickerson, Maryland. It's an existing one-lane bridge over the Little Monocacy River. And the bridge itself isn't exceptional. It's the bridge that you see when you're there. This bridge carries 75 vehicles per day. And this road is a rustic road. All right, so here's an aerial view. It's a little hard to see, but what you can see is the CSX line, or the old C&L Canal Railroad. That's where, I guess, the historic viaduct is located. And that's the view you see from, which was on our opening slide, is the view you see from the bridge. So this bridge today, it's a 50-foot-long bridge. It is a one-lane bridge. It's about 15, almost 15 feet clear, and the bridge structure might be somewhere around 16 feet. There are no shoulders, no curbs. The existing bridge has a weight restriction, and there's been some upstream bank erosion, and the bridge is in poor condition, so it's going to be replaced. Here's a plan view of the bridge. The new bridge will be slightly longer. And it retains the existing bridge abutments to minimize stream impacts, which is fantastic. And as you can see on the drawing, there is some stream work to reduce erosion and stream flow. And that's imbricated riprap. And I don't quite know what that is. It's kind of like very flat stones. It's not the stones in a big metal bag. It's designed to be much more conducive to a natural look and a better stream flow. Here's the cross section of the bridge. And again, it'll be bounded on both sides, similar to as it is today with guardrail. And it is definitely a one lane bridge, so a total of 14 foot nine inches clear. As part of the design, the bridge will be closed for a period of, and I said three months, but that's wrong, it's actually six months, my apologies. It has a detour which is almost four miles long. It's quite a long detour. Most of this detour is on private roads, some of which on maps are labeled as Mouth Monocacy Road. So the applicant's going to be working out this, and they will have signage to make this work. And also just a note for mail delivery, the mailboxes are on the west side of the bridge. So unfortunately, that's a four-mile drive to get your mail. All right, so this bridge was identified in the Rustic Roads Functional Master Plan, not for its architectural character, but for the fact that it's a one lane bridge. And the recommendation in that 2023 plan was to retain it as a one lane bridge. In addition, the Rustic Roads Committee, through various meetings that the applicant has had with the Rustic Roads Committee, recommended that the bridge rails and W beam guard rails be painted brown. which is a request that the Rustic Roads Committee often makes. Now, as we look at this road, it is a rustic road, and so it's subject to Chapter 49, Special Rules Related to Rustic Roads. So unlike other places in the county, no separate bicycle facilities are proposed or required. Bicycles use the travel lanes, and even pedestrians use the travel lanes. Potential impact, there's 75 vehicles a day, so it's pretty easy for all modes to work pretty well. But the one comment we have here is that a sign letting people know that bicycles can use the full lane would need to be posted. In the past, that might be share the road or stuff like that, but this is the new sign that's now required. So from a historic preservation perspective, and again, I wish I had a better photo that showed more of the bridge, the viaduct in the background, it is located within the environmental setting of the Little Monocacy Viaduct and Mill, And it will require a review by the Montgomery Planning Historic Preservation Division. And the little monocacy viaduct is a significant feature of this rustic road per the recent master plan. So the comments we have here is that the applicant would need to revise their project description to reflect that the project is located within this environmental setting as well and to submit plans before they proceed to construction, submit plans to historic preservation, historic staff for review.

Who owns the bridge on Vidocq? That would be CSX. So it still is used as a railroad bridge?

That is my understanding, yes. Okay. Marco is going to talk about forest conservation.

Good morning. The applications for linear project with a limit of disturbance or net tract area under 40,000 square feet and less than 5,000 square feet of forest clearing. The project as submitted is not subject to Chapter 22A and does not require forest conservation exemption or a forest conservation plan to proceed. Stormwater management concept approval was obtained from the Department of Permitting Services. And the environmental impacts are being avoided, minimized, and mitigated as much as reasonably possible. And the staff defers to the other regulatory agencies with purview over this project and has no recommendations for additional measures regarding environmental protections. Then as a side note to clarify, the embrocated riprap is very large stones that are blocky, about the size of a desk, and they're stacked like brickwork and typically used to stabilize stream or river banks that are subject to high flows or high velocity.

All right, so that concludes with... the four recommendations that we summarized during the presentation. And that concludes our presentation. But one thing I will do is... Oops. And I have the wrong version of this. So what I will... is that we did receive one commenter who is, I believe, signed up to speak today. And the concern identifies a couple issues. The first is that, Their driveway is right immediately adjacent to the bridge. And at times, there's flooding. And I guess maybe some parts of the bridge design lead to that. So the comment would be that DOT should consider addressing the flooding or drainage flow as part of their project. The second comment is that the Monocacy Road between the bridge and Mount Ephraim, which is probably like 1,000 feet or more, the pavement condition appears to be not very good. And so the concern is that with construction vehicles coming in to install the bridge, that upon completion, there might need to be some pavement overlay or pavement maintenance. So the comment that we would provide would be that the applicant should consider pavement maintenance on the road after construction is complete. That's it.

I thank you for your presentation. We have one speaker, Mr. John Bunn. Welcome. And you have three minutes. Is he representing himself or a group? So you have six minutes. Is it six minutes?

Yeah, my name is Junbeom Byun.

Sir, one second. Can you turn your camera on if it works? If it doesn't, we understand.

Okay.

No, it's here.

It's not coming on. So why don't you just go ahead with your presentation. No worries about the camera.

Yeah. My name is and my temple resides in ,, to my residence It's right next to the monocast river bridge that you are planning to build. And as the previous gentleman just mentioned, I have two concerns. One is the flooding. When it rains, the entrance to my driveway is flooded. When a new bridge is constructed, I think it will be desirable to have some drainage from the area to the river so that the flood doesn't come up when it rains. And my second concern is that the road section from the M-frame intersection of M-frame road and mouth of Monaco Street Road to the bridges is quite, there are a lot of potholes and very old conditions. So when the construction starts, yes, that is the entrance to my residence where the flood happens. Okay. And then the road is pretty old. I mean, I don't know how long it's been there, but as you can see, a lot of fragments of the asphalt and a lot of potholes. So when a heavy construction equipment passes, then the road condition will be deteriorated. So That is my second concerns, I mean. That's it, Chairman.

Are you done, sir? Yes. OK, thank you for your concerns. Excuse me. So it's now time for the board, if you have any questions or comments. Please, Commissioner Peron.

Well, first I have to say that this bridge brings me to memory lane. Probably Haiyan knows. At the time that I was at the DOT, they replaced, I believe, the deck. This is a trust bridge that has been there for years. It's one lane. And at that time, federal government wouldn't agree to make it one lane. So I guess that they have come a long way to accept it as one lane and make it as a federal aid bridge, that it helps a lot because it's a long bridge, sort of a long bridge for the county. I guess that the new design replaced the whole superstructure, correct? Still, it keeps the trusses in place.

We're replacing superstructure and substructure.

Oh, the abutments are being replaced also?

Yes.

Okay, because I just heard that the abutments, so that's good. That was my question, that if you're going to replace the whole thing. Okay, I got it. Now, the question is that, so you're going to replace it with the W beam, correct?

Yes, that's correct.

So, and then you're going to put the guardrail. Why can't we, instead of, I do not know what is your preference, are you using the core 10? Because at that time, core 10 didn't have to have paint, but you're going to paint them brown. What is the proposed guardrail right now?

We're going to have to use the brown-coated guardrail.

Brown-coated, is that the requirement? Instead of having it just the core 10, that that is brown also, but has a rustic look?

Well, we don't like using the core 10 because it's not allowed to get the protective coating because the snow plows come and they push the snow and the salt on it. And so we end up with suction losses and having to go out and replace them frequently.

Oh, OK.

So we do the galvanized, but they're coated with a brown coating.

Okay, okay. I was just wondering what was the reason for that. And the beams, the W beams, are they painted also or they are just... What are we doing?

The plans as it shows is we'll galvanize them and then paint them to match the railing. To match that. The same coating, brown polyester coating.

Okay, okay. That makes sense. Okay, thank you. That was my question.

Any other questions? So I have a question. Excuse me. So just out of curiosity, well, let's go to the testimony. It looks like the driveway of the adjacent property owner is in a little dip there. So I guess, is that what they're talking about? The water just gets in that little depression and that's why it's floods, or do you plan to do any grading or whatever at the driveway to make sure that it floods? Can you respond to the testimony or anything you're gonna do to minimize or limit that flooding in that driveway?

Yeah, to ensure positive drainage and ensure that the proposed work, because we will do some of the... Push your button.

Sorry.

There will be some proposed work at the approaches, but more so grading, and there will be part of the bank erosion concerns. We're going to make sure that there is drainage and things are directed into the stream so it's not... But we'll definitely make sure and evaluate that area to ensure this, you know, do the best we can.

Okay, so that'll be in your, that's a, we'll put it in your report or put it in the letter that that's what's, you know.

Yeah, I think what's important is if you look at the photo, can we pull the photo up? Even if it's a dip, there's quite an elevation difference between the bridge and the driveway. So there's always going to be some kind of sheet flow that will come down that way. It's just how that can be minimized, I think, is what would be great if the applicant could look at.

Right. So that'll be in your report. OK. And then also the pavement, I guess this pavement they're talking about is outside the bridge length. Can you respond to the comment of trying to?

Yes, sir. We can get pavement work done on the approaches, yes.

All right, thank you.

I agree that construction equipment is going to not, I mean, I agree construction equipment going down that road is going to cause damage to the roadway. So we can get that taken care of.

Great, thank you. And for curiosity, that during the describing the bridge structure, he talked about an imbricated rock, j-hook structure. What does that, out of my curiosity, what does that mean?

Is it a plunge pool? It slows the water down?

It's a way to redirect flow. Right now, this way, the stream, the flow hits one of the abutments, and the angle, it causes scour damage. So by putting this controlled structure, we could redirect flow to center it under the bridge as it creates a plunge pool, which is kind of naturally there.

So this is something in the water that you put in. to keep the water from hitting the abutments?

Yeah, it helps center the flow below the bridge to hopefully prevent future scour. OK, it's attached to the abutments, or it's just sitting in the water somewhere? In the water, it does tie to the embankments. One of them is near one of the wing walls, but nothing's actually attached or connected.

OK, great, great. So those are my- Can I ask one follow up on that? Sorry to interrupt. centering the flow so that that obviously makes sense to protect the new structure and prevent kind of I guess bump off and you know redirection of the flow but if once we center it does that change the historic natural flow to the point where there's new erosion concerns downstream where it may be faster flow hitting the embankment in ways that it wasn't previously has that been like looked at at all?

I don't believe that would be a concern we didn't you know within the limits of our bridge and making sure that our structure is doesn't have. Further effects, so I would imagine, and this is through numerous rounds of coordination with parks and planning and they provided some sketches and what we should you know recommendations to follow so that's all been.

incorporated into our design okay okay just curious thanks.

I have one more question. You said that you're going to be able to remove and build the whole bridge within three months. Is that possible?

No, I'm sorry. It's actually six. I had the time wrong.

Six months. OK. That makes more sense. I thought maybe there is a new way of doing bridges that are much faster. I like to know how. OK. And then people have to use the detour. And you're going to also detour the water. during when you are working in the stream for the abutments. The water would be detoured, correct?

That's what I thought. They're going to keep the existing abutments in place during the construction. So they'll have a stream diversion in place when they construct the new abutments.

So the new bridge is longer?

The new bridge will be longer.

Okay, so it's going to, the apartments would be behind the existing apartments, so it's going to help for that.

Yeah, so there'll be flow throughout the construction. So it's going to flow during the construction. Yeah.

Okay, I was wondering that any kind of stream work, I guess you have to do it while the bridge is off, correct? I was wondering that if there is a way that some of those J-hooks and other things that you're talking about that are on the approaches could be done while the road is still open, because people have to go four miles of detour is pretty long. some of the work could be done before or after. I do not know if that's a possibility, because you're still keeping the existing abutments, so you cannot open it until you have removed the existing abutments, I'm just thinking. I don't know, but if there are ways that we could reduce the closure, that would be helpful.

Yes, ma'am. We're always looking for ways to reduce the closure periods. So that could be worked out in our construction sequencing.

So I would just ask, should we include that as a comment from the planning board? So just leave it.

I trust that they do the right thing. It doesn't need, I was just curious that if that is part of the sequence. And I believe that in their work, I'm sure they're going to consider it. Because this is like about four miles. I was just confirming.

So I believe Mr. has his hand. Was that from before, Mr. or this is new?

Yeah, it is me, too. Same . Can I ask a question?

Yes, please.

I mean, do we have a timeframe on this construction? When would it start?

We have construction funding for July of starting July 28. So hopefully, yeah, we're going to, July 28th is when the construction funding comes available.

Is it that calendar year or fiscal year?

Fiscal year would be FY28. I mean, FY2027. So it's going to be next year. Next year, yeah. Sorry.

Okay, thank you.

Okay, but you're in the, I thought in the description it said advertise spring of 28, construction summer, fall 28, and completed December 28. That's what you said in your report. So that would be two years from now you would start.

Well, I think there might have been a cross up on the fiscal year versus actual year.

Okay, but you're saying you're starting at fiscal year 27?

Yeah, that could be calendar year 27.

That's when we have our construction funding available.

Right, just there's a difference between construction funding being available and when they actually begin construction. So I don't know if there's a definitive answer or knowledge at this point of when construction would begin is my sense, but that's when the funding is currently budgeted is in fiscal year 28, which starts in July of 27. Yes.

Okay, great. Great. Thank you. Um, like a fascinating project, um, in a fascinating location. Thank you. So if no other comments or questions, do I have a motion to prove approval with comments in the, in the comments would include this, um, about the flooding and whatever grading you have to do for the, and then the pavement maintenance during construction.

Yeah, I'll move to approve with comments, including the ones discussed here today.

Second.

All in favor?

Aye.

Aye. The ayes have it, 5-0. Thank you so much. Look forward to the project starting. And we'll just take a quick break and then end with our last project, which is item number six in response to a forest conservation law violation, Forest Conservation Plan Amendment F20-24-1060, where staff is recommending approval with conditions. Thank you. Good morning and welcome back. We're on item number six, response to a forest conservation law violation, Forest Conservation Plan Amendment F20241060, the Joseph and Cindy Cacase Property, 3721 Flint Ridge Court, Brookville, Maryland, where staff is recommending approval with conditions. And this morning we have Kara Farthing presenting this item. Welcome, Ms. Farthing.

Thank you, ladies and gentlemen of the board. My name is Kara Farthing, like you said, and I'm a Forest Conservation Inspector with the Environment and Climate Division. My presentation today is in response to a Forest Conservation Law violation, Amendment F-20-24-1060, and which, if it's approved, it would provide remediation and resolve the violation. And I'm happy today to get my first presentation under the books. So just a little bit about where this property is. It's out in Brookville. The closest intersection is Damascus Road and Sundown Road, which aren't super major roads, but it's right behind Rachel Carson Conservation Park. This red dotted line there points out the lot in question today. It's part of the 2005 only master plan, zoned agricultural. It's about 2.5 acres in size. It falls within the Hollings River watershed and is not within a special protection area. So a little bit of background on this property, too. It's part of a larger 14-lot subdivision of 161 acres. It was approved on October 11, 1979. However, it was not built out for a very long time. In between that and the early 90s, forest conservation law was passed. So when the sediment control permits were required to build these lots in the early 2000s, the forest conservation was then required. So on November 20th, 2002, the board approved FCP number SC 2003-001 for 14 lots within that larger tract area. I do want to point out on this plot, lot 14 has that orange dot on it. Their septic is actually right below it on lot 15. So they share septic on that second lot. So the well is on their own, but septic is adjacent. A little background on the enforcement history here. Back in November of 2013, The applicant had cleared around 26,000 square feet of forest within a category one conservation easement boundary. At the time, inspectors were not notified before the clearing. They were told by the applicant that they were clearing to remove dead and dying chestnut oaks and other trees that were close to hitting their house or almost hit their house. A lot of these trees seem to be suffering from the two-line chestnut borer, which is a non-native invasive beetle that attacks already distressed oak trees, which is pretty common in our area. These decaying trees had become a hazard, so they had removed them, and they were issued a citation at the time, which required them to plant back the area. So they did, and in spring of 2014, inspectors went back out, saw that 30 trees had been planted back, which was a required remedial action, and the inspectors closed the violation, so that violation was no longer open. It had been resolved. In January of 2023, I was now the forest conservation inspector for the area, and I was doing random inspections and had noticed on satellite imagery there seemed to be a pretty big open area here. So I went and knocked on the door. No one was home. I left a card. And during my research, I could see that there had been a previous violation, and we've got aerial imagery from about every two to three years. So I could see it was forest. It was cleared. It was growing back. They planted it. and then ended up being cleared again. So I mailed certified mail requesting a meeting, which the applicant set up. And on March 29, 2003, I met with the applicant and issued a notice of violation for again clearing forests within that category one conservation easement. And I do want to point out, too, this T shape in the conservation easement might be kind of hard to see on the screen. But that was where the well was located and where the well was supposed to be built for access. So the current status, the encroachments measured to be a close 9,000 square feet. It had been maintained as lawn since, from what I can tell, around 2018. I was told by the applicant that the access path outside the recorded easement boundary, that T-shape, was not what was used to build the well. So that was intentionally cut out of the easement at the time so that well could be built that way. However, it was not. It was built through the easement. So around 2020, maintenance work was required for the well these well companies just went to where it had been developed to begin with, which was in the easement. So they had to clear what had grown back in between that time. And so after that had been cleared out, the applicant continued to use that area for lawn since all the trees were gone. And when I issued my violation, I offered the choice to either restore and replant the easement or to amend the existing forest conservation plan with the idea to keep it as lawn. And that's what brings us here today. So overview of what's to come here. The Forest Conservation Plan Amendment proposes to remove 0.21 acres of the existing easements, abandon that section, and then mitigation will be provided both on-site and off-site, which I will discuss in the following slides. So the Montgomery County Forest Conservation Regulations state that removal of any conservation easement must be reviewed by the planning board, which is why we're here today. On-site mitigation is always better, but most of this property is already in a conservation easement. They have about 0.25 acres, if that, quarter of an acre, that's not an easement, and then the rest of it is their house, their driveway, and their well. So there wasn't really much room on-site to move this to. There's no sensitive environmental buffers on this property, so there's no stream buffer. There's no streams or wetlands inside this easement. And to accommodate requests of the environmental planning review at the time, the house was actually shown to be built a little further back on the lot. And the environmental planning, back when this was reviewed in the early 2000s, requested that it was moved all the way to the very front and everything else but inside the conservation easement, because at the time, that was considered high-priority forest. So that left very little room for them to have anything in their backyard. And even to quote that approval memo, lot 14 and 15 were to have tightly configured minimum building envelope size for the high quality surrounding existing forest, which unfortunately has suffered quite a bit in recent years with invasive species. In recent years, the board has sought to avoid encumbering properties where easements would be prone to encroachment, because from my measurements, it's about 30 feet from the back of the house to where the easement starts. So there's not much space there. And nowadays we would not approve from my other similar developments I've gone through, we have not approved similar easement setups. Mitigation offsite reforestation of the cleared land would provide some ecological benefits and allow for conservation efforts to be directed towards high priority afforestation projects in more sensitive buffers such as these stream buffers and everything, which this site does not have. At the time, this easement was protected the way it was because of the high priority, what they called out chestnut oak and hickory forest. These chestnut oaks, from what the applicant told me, were all dead. This is also evident on neighboring properties. There's lots of standing dead trees all around them. And just from my experience in this area, Brookville area, the chestnut oaks have been really taken a hard hitting. And there's several standing dead oak trees, so it fits. And this amendment proposes a 3 to 1 off-site ratio, which exceeds our normal standard policy of 2 to 1 off-site or the 1 to 1 on-site mitigation. So this amendment, it proposes to remove 0.21 acres of that 1.71 acre onsite category one forest conservation easement. It'll add 0.025 acres of existing onsite forest into a category one conservation easement by that well access path that was supposed to be used. This would now be put inside of a conservation easement because it was never touched. So that is pretty much the only remaining part of on-site forest that can be protected, which they are proposing to do so. They'll then install 0.09 acres of supplemental plantings within the easement. So this would go around where they're mowing underneath some trees. So they'll be planting nine two-inch caliper trees and seven 18-inch shrubs. And then providing off-site mitigation at a three-to-one ratio. So that 0.21 would be 0.063 acres. by acquiring credits to meet their forest mitigation bank. If there's no credits available, paying our fee in lieu, which is pretty standard there. So this might be a little hard to see, but this is what is proposed. We are also asking that there's 10 permanent six by six posts. They're little triangles on the corners there to help them remember where the easement is in the future to help prevent future encroachments. That gray hatched area in the middle is what's being proposed to be abandoned. There's the red section is where they're gonna be planting. That hexagonal shape red is where they're gonna be covering the previous well path and putting that inside of a category one easement. And then all that remaining green is all existing remaining forest conservation easement. So there'll still be an acre and a half of category one easement on this property. There's no construction or development plans. So they don't plan to build a pool or shed or anything. They just wanna be able to have that lawn and be able to keep the tree line further away from their house. So in conclusion, the applicant has proposed substantial mitigation that enhances, preserves, and maintains long-term protections of sensitive environmental resources offsite while still protecting an acre and a half onsite. And staff recommends approval of Forest Conservation Plan Amendment F20241060 as conditioned in the staff report and summarized by removal of the 0.21 acres of conservation easement, adding 0.025 acres of existing forest into conservation easement, installing .09 acres of supplemental plantings, and providing three-to-one off-site mitigation for loss of forest. So thank you, and I'll be pleased to answer any questions at this time.

Yeah, great. Thank you. You did a great job on your first presentation, so thank you. Really appreciate it. Do any of my commissioners have questions or comments?

Yeah, do we get to hear from the applicant?

With regards to the reason why they did this. That's a great question, Mr. Barlow. Moving too fast this morning.

Excuse me, not the applicant, but the violator.

What?

They are actually applicants and violators.

And the violator.

Good morning, my name is Françoise Carrier with the law firm of Bregman, Burbridge, Schwartz and Gilday representing the applicants in this Forest Conservation Amendment application. I'm accompanied by Mr. and Ms. Kakache, and also by Frank Johnson from MHG who prepared the forest conservation plan. I want to start by thanking the planning staff for working with us in a very productive manner to find something that would be, that will be we think a good long-term solution to a lot that was created in a way that really made things very difficult for the homeowners and we think this is a way to move forward preserving almost all of the forest on site while leaving them with a little bit of area that they can use behind their house, like most people expect to have, particularly people who buy a lot with two and a half acres of land. We are happy to answer any questions that you might have.

Great, thank you. Please, go ahead.

I just have a couple of questions with regards to the project overall, mostly for the staff, actually. A licensed forester should know the forest conservation laws within Montgomery County, is that right? The lack of a permit in 2014 is concerning if you had a licensed forester come in and not, do they not know the laws? Do they not know the requirements? I'm just, I'm curious on that regard.

Christina Sorrento for the record. I mean, they should. You know, we are always trying to get information out there, but...

I mean, if it was removing, I live in the city of Rockville and I've gone through the process of removing large scale trees, you know, over certain sizes. And I can understand that being confusing, but removing a large swath of hardwood, mature trees, the category easement. had been existing at that point for a long time. I'm just curious as to like, it seems a little bit suspect to me that a licensed forester wouldn't be aware at the very least of the forest conservation requirement for a job of that size.

Allie Myers with the Office of General Counsel just wanted to jump in for the record. Because I think if this case were coming to the board in an enforcement capacity, and obviously some of those questions deal with even the prior closed enforcement case, there would be a lot, it would be a very different posture. We would be presenting a lot more of these kind of facts of who knew what and when and exhibits and evidence. But the way it's, because of the collaboration with the property owner and the applicant in this case, I think that's why we're not getting into that level of detail. about the violation itself, and we wanted to focus on what's being proposed with the amendment and how to resolve the violation going forward.

No, understood for the current situation. I'm curious because we've had a couple of the violations of conservation easements, parkland encroachment, and stuff lately that have come before the board. And I mean, it's fairly significant, so I'm just curious as to what the process is for when you bring in a contractor. It seems to be a fairly large clearing for not having known that at the time. So it's not an issue of necessarily the thing before us. I think the... above the minimum replanting requirement sort of addresses that issue, and I understand the case. I was actually very interested about the, you mentioned it in your thing, but the difference in time between when the site planned and when there was actual building, and I thought that was interesting in there, but we've run across a few of these, and this is my concern, is that we have these encroachments, and we have these large clearings that I think is, if you're hiring someone who's licensed and knowledgeable of that, they should be aware, I think, of the issues, and I'm just curious in this regard, so...

From an inspector standpoint, like broad picture, not just this property at all. I'm not entirely sure what happened back in 2013. I don't know if this was a licensed forester, but in my experience as an inspector dealing with these violations, they're not always a licensed forester or a certified arborist or someone that comes in. It's just someone with equipment and willing to take money to do so. So occasionally we do get a call from a contractor that says, hey, I think this is an easement. Can you talk to the owner? But we have been trying our best. We've been doing, like, mailing campaigns. We're contacting landscapers, trying to make sure that they're aware of this 5,000 square feet rule, and also category one conservation easements, because, yeah, we run into this all the time.

That was my, yeah, that's my concern. It's not so much the individual issue before us here, but that a couple have come up, and I'm, you know, wondering, you know, now, I assume in 2014, we didn't have nearly the GIS mapping and things that we have right now, but to, oh, okay. Okay. That's early adoption. I'm excited. Nicely done. Cool, because I was using ArcGIS at the time in this whole thing. But as we go forward, try to be able to make sure that these easements are addressed and preserved the way that they're supposed to be. I think it's useful and interesting. Of course, at this point, I don't think, as you mentioned, we wouldn't run the easement right up to the back door on something like that. you know, hardwoods notwithstanding and chestnuts, but I think the three-to-one mitigation is reasonable given the situation. I was just curious about that because I think we've had a couple come before and I just wanted to get some background in them. But thanks a lot.

So I have a question in regard to easements. I think when we are talking about the individual lots, especially the lots that they are on septic and well, do we consider that not to put easement that blocks the access, maintenance access, to those facilities at the same time. Do we consider to allow enough space for different property owners to enjoy their backyard? Because if we make the whole backyard everything as an easement and the property owners leave or whatever, the violation is going to happen because people need to use their backyard. They need to maintain their facilities. But if at the very beginning we do the conservation in a way that is logical for the homeowner use of their backyard and maintenance and everything, and if we need additional, then either they pay or they go somewhere else. But we create a balance between the living and preserving. Are we doing that?

yes we we definitely are we leave the septic field and the well area out of easements we leave you know adequate access to it and the way that we review plans now is we also leave a you know a decent backyard if it's a small lot, we don't accept category one easements on them anymore the way that we used to. However, I will point out that when we are approving the forest conservation plan that has all the easements on there and the preliminary plan that sets up the subdivision that has the easements on there, The way that the house is laid out, that's just illustrative. It's just, you know, they're just putting a box on the plan. So it's not until they come in later that they cite where that house goes. And so we may have, you know, approved a plan with plenty of space, but they might put that house way back up against where the easement area is, and that's not something that we control at that point because it's beyond us.

Yeah, I see that makes it difficult for the homeowner that is going to get stuck to something like that, and things may happen because they need to live in that space and to need to live in that area. Also, it's very helpful that if people come for amendment or whatever, we make sure that if they have any plan in future, for any kind of expansion of their backyard, or do something, and they think about it, and if they think that there is a possibility, it's just one time design, because these are costly for homeowners. It's really costly for one homeowner to hire a consultant, to hire a lawyer, and then Those are costlier than actually planting the plants. We need to make it easier that we don't get in this situation knowingly or unknowingly. I know violation happens. I'm not talking about people that they just go, yeah, they're totally in violation. But a lot of times things happen because of the other things that, you know. Well, okay, I think I talked enough.

Yes, thank you for working, both the applicant and the staff working together to come up with a compromise. I appreciate it.

I have a comment. Can I just?

And that, I mean, our forest conservation plans, our process has evolved. And I feel it's only getting better. We learned from the past. And now we have markers. Right? It seems like each of the newer ones, you put markers out that sort of like belt and suspenders so that a person could see that this area is the boundary of the category one easement. So that's all great, and I appreciate that. I just thought my question is more just like processes. So Ms. Farthing, do you do spot checks every year? I mean, how does it? How do you look at past forest conservation easements? Is it like every year you say, I'm going to look at 10% of the easements out there? How does it go? Because I don't think you look at everyone every year, right?

No, there's thousands of easements. We don't look at everyone every year. This is also a process that's evolved over the years. Our job description says every easement once every three years, but that hasn't necessarily been happening or hasn't been keeping record. We've improved a lot with our GIS records and layers. We actually, I have an app on my phone that has a solid imagery and we now have a way to see the easement and to mark off saying, yes, I inspected it. And it turns it green and then turn yellow after two years and turns orange again after three or four. So I can look and say, no one's been to this easement in a very long time, which is what I was doing in Brookville. I said, okay, no one's inspected these easements over here. It's been over three years. In this case, it had been 10 years since someone had been out there. So that's our process nowadays. We've gotten a lot better about checking off, making sure it's at least once every three years is what's supposed to happen.

Okay, thank you. Mr. Bartley.

Thank you. In the past, when we've had these type of violations, I've always expressed my concern that people who can afford to violate conservation easements and who can afford to to apply for mercy is not a good example to thwart this behavior from other landowners in the future. I understand that there's going to be these mitigation efforts, but my concern is Are we punitive enough to stop this from happening in the future? Mitigation efforts with regards to loss of trees is finding well, but I think the goal should be to preclude or set an example to make sure people don't continue to do this type of violation. Thank God for our outstanding staff and the presenter who had prior experience in locating these type of violations and that she found this one and was able to connect with the applicant violator. However, my concern is that they have engaged in a continuous pattern of violation because they can afford to do so, and because the penalty that they receive is something that they plan to pay for. And so, although this is an application for conservation easement, I would have preferred some kind of monetary penalty to send a resounding message to the rest of the community and or landowners that have conservation easements on their property that if you do this type of thing, you're not going to come back around and apply for forgiveness and planning. I think there needs to be more of a punitive action in this case. Thanks.

Okay.

Thank you.

You have a question?

We've kind of been talking about, and this has come up in the past too, sort of who should have known and when should they have known certain things. And we don't know if the contractors were licensed or not, but, you know, you could argue regardless, like they should have known. there's also the question of like what documentation is provided at closing when people bought when people purchase a property and is it clear and obvious that there's an easement on site at that moment in time so i'm you know handling both of those questions separately like taking sort of the applicant out of just for a second there are kind of other responsible parties in these cases what happens to contractors during violations if anything do do we try to identify the contractor try to assess whether they tried to determine if there was an easement on site, whether they communicated that to the property owner. If they did neither of those things, are there consequences for the contractor? Because if a contractor says no and an applicant moves forward, that's an entirely different situation. It sounds like in a lot of cases, contractors don't check and they just do things without checking. So to sort of Commissioner Bartley's point, the mitigation over time should be fine, and that's how the system's set up, and it should be okay over time. But in terms of preventing this behavior in the future, how do we get contractors to care? And do we communicate? When there is a violation, do we try to figure out who the contractor was and communicate that to them?

So the way that the law works is that it's the property owner that's responsible for what happens on their property and complying with the easement. And so when the inspectors are out there, it's the property owner that they must talk to and it's the property owner that eventually ends up being responsible for the whole thing. mitigation, payment, whatever is involved. If the property owner wanted to then turn and hold the contractor responsible, they potentially could, but that's something outside of our purview.

So that makes sense. So the current situation is the buck stops at the property owner. Have we considered working with the county to maybe change whatever needs to be changed? Because MC Atlas is a publicly available resource. I use it all the time. You click on one layer, you can see where the conservation easements are. This is not a hard thing to figure out for contractors. But if they're not made to care, they won't care. They're looking for business. And that makes sense. They're looking for business, but... Have we ever considered working with the county to explore changing whatever needs to be changed to hold contractors liable? Because property owners may not know to ask. And, you know, you could argue that they should. And you could argue that at closing, those documents should be clear and obvious. And that's another angle I wanted to go down. Like, what can we require to elevate these easements at the time of closing, if anything. But if they don't know, they don't know. If they don't know to ask, they don't know to ask. But contractors are in a position where they should know. And so I'm just wondering, have we considered working with the county on that change?

So I'll defer to Ms. Myers about the contractor conversation, but I will say at closing, it is elevated. It is required to be disclosed. It is required that they have to sign that they have a conservation easement. So that, I mean... i know that we all sign a million documents at closing but it is something and it's something that they're responsible for for paying attention to when they're signing but

And to speak to the other question about potential, I guess, amendments to the law, you know, Ms. Sorrento is exactly right about the fact that this law, as written, it binds the property owner. And it binds the property. The property must be in compliance. And that is something county law largely comes from state law. And it is structured that way. It's similar to all of our development approvals in that these approvals run with the land and therefore they apply when we say applicant and bind the applicant with the conditions. That means whoever owns the land, whether it's the person who applied or a future owner. And the... When there's an agent acting on that applicant's behalf that may not be doing their due diligence, we do consider that to be, that's a private matter. That's a contract matter really outside of our scope that I don't think we would want to go down the road of trying to regulate that because I think having the property owner be the one ultimately responsible really follows with the rest of our land use development approvals.

One thing that I know is that if they need to require a DPS permit, this is something that DPS would look into. I do believe that the conservation easement is something that they do check. So if they need to get a permit, that would be checked, and the permit usually is with the name of the applicant. I understand that we don't want to see violation, but however, I'm very comfortable with the process that we have. I don't think that the planning department is in here to start punishing people rather than make sure that the impacts are mitigated. I call it as government friendly toward the customers. We may see a few, but I would caution you, and I also ask that maybe that's what we have. I believe that we have so many acres or square footage of easement, and this violation may be just a very small percentage. of what is actually happening. Maybe that at one point, maybe you could provide us to see that what is the total conservation areas in different properties that we have and what is the percentage of violation that is happening. It's sad that trees are being cut I don't want to see that, but the most important thing is that, and even with DPS that when I was there, the director, we try even when it goes to court or it goes to judge and people don't follow the requirements for the permit, the money we rather to be spent to mitigate the damage. That has been done. We don't go after people and say you have to pay that much thing. It doesn't matter. The money doesn't really do anything to us except that We want to make sure that the impact of the mitigation is done. So if violation happen, the important thing is that we look forward and see that how we look to the future, how we could mitigate those impact than thinking about punishing people that why they have done that. I personally don't agree with that. That's not a good government. We are not here punishing people. We are here to serving our community. And I don't agree in any way we say that we have to make things harder, that people don't make it. Because there are, yeah, I agree with you. There are two or three, maybe they do it. But there is a process in here done that people can come easily and amend these things. It's cheaper and faster if they amend it than you come back and do the mistake. And then you have to come for violation and everything else. So if two people make a mistake and we want to punish everybody because of them, I don't agree with that.

Can I just say one thing? So one, we need to wrap this up. And so one of the things is I hear good questions on both sides. And maybe if you can come back to us at some point, How bad is this issue? I'm just saying. We've heard a couple of these. I don't know. I'm not sure how often we hear. But how bad is the issue? So that's one. And two, is it a knowledge issue? Or is it something like, and if there's a knowledge issue, maybe we could need more to. put out the, you know, like we talked about before, people that have, you did it once, people that have forest conservation easements, just every, so often, every, I don't know, you have this easement on your property. These are the, you know, just reminding you, these are the things you can't, I'm not sure, but just how bad is this? Is there a big issue? What's causing the problem we see? And then what could we do inexpensively? And then this You know, is there a punishment issue or not a punishment issue? But it would be nice to know because we want to do our job. Anything that comes in front of it, we want to address it. I'd like to see more development projects out there. But if we have to deal with this, we have to deal with it. But maybe if there's a way we can prevent one or two more every year, that would be great.

Certainly, I think what might be best is we'll come to you with a briefing about the whole violation enforcement process, because there's a lot there that it would be probably beneficial for the board to know.

Perfect. That would be great. Anything else from the team?

Sorry, can I ask one follow up to what you mentioned before about the law? So say for example, just trying to understand kind of at what point responsibility may change. Say there's a property owner who wants to put a deck on the back of their home. So they bring in a contractor. The contractor is responsible for filing a permit. In that scenario, if something runs afoul of county code or law, Is the property owner responsible or is the contractor responsible for a misfiled permit or something like that?

From DPS perspective? I guess I'm trying to understand that, like,

when or why would contractors be responsible in different circumstances for the technical components of what they do?

I don't want to speak to the DPS process. I think that's why I'm talking and thinking about this in terms of development approvals. In terms of our, you know, the FCP is more in line with, you know, a site plan that has its own conditions that specifically tie to the property owner or the applicant in that case. Yeah, I don't want to speak out of turn and say something wrong with so many folks who are much more knowledgeable about DPS process in the room than I am.

Sure.

I just tell you that the contractor is going to leave, okay?

Contractor is going to...

The contractor build a deck and it's gone. Your contract is finished. You may have one year warranty. If you are during the warranty, something happens, then if it is against the code and Hopefully DPS stops it, okay? But if something happens that is covered in the warranty, then it's the responsibility of the homeowner to go after the contractor for warranty. But after the contractor has left, there is no contract anymore.

I guess a better analogy would be contractor comes in to build a deck. does not file a permit for it, builds it, the property owner isn't aware that a permit needs to be filed, was relying on the contractor to give them the relevant information, and then the property owner is cited for lack of permit or something like that. Is the contractor liable for,

Yeah, that would go back to being kind of a private, it wouldn't be, the property owner would be the one responsible for meeting the law and regulations for their property, and it could be a matter of contract, you know, matter between them and their contractor.

Okay, thank you. OK, great.

If I may, I just wanted to offer a little bit more detail for the planning board in response to your questions and your discussions. You're going to get a lot of information, I know, from staff in a presentation that I remember hearing some of the presentations once upon a time. It's a complicated thing because for a long time, the department was maximizing forest preservation and for very good reasons. not realizing that human nature is such that if you ask people to do something that is really hard to do, really inconvenient, and starts to feel unfair after a while, they're not going to keep doing it. It's just things happen that make people decide. Sometimes they're hard to defend, like, well, my kids wanted a playset. It's hard to have a huge amount of sympathy for those decisions which have happened many times. In this particular case, the initial cutting was because the trees were dying. One of them fell on the house and nearly killed their child who was in his bedroom. That kind of thing is really scary to homeowners. I don't think they were aware that before they cut down dead trees, they needed to go to the planning department and say, hey, we've got 20 trees here that are dead that are within such and such distance of our house. We'd like to take them down. They were not fully aware that they needed to do that. They did what seemed sensible and what an arborist told them should be done. These trees are dangerous in this location. they need to come down. So that was the first thing. The next, the current violation, they didn't cut down the trees. It was a contractor fixing the well. Unfortunately, the builder, builders don't always look so closely at those plans. And sometimes plans get changed between the planning board approval and the building permit approval in ways that don't necessarily seem significant, but then they can be. And so in this case, for whatever reason, the builders didn't put the will where they were supposed to. They put it someplace else. And so to get to that well, they had no choice but to cut down trees. So once those trees were down, then it didn't seem like it was a big deal to start mowing the meadow that started to grow up there. There were a lot of creatures living in that meadow. It was quite close to the house. Just to give you a little sense of why this particular family ended up in this position. And I will sort of underscore something that Commissioner Padweem said. This is a really expensive process. You know, going through this process is costly. And the planting of the mitigation that's going to happen here, the planting on-site and off-site, I will share with you that it is a financial burden for this family. This is not an easy matter for them. So it's just a difficult situation created by decisions that the planning board and the planning department do differently now. The process is different, it sort of acknowledges all of these issues, but sometimes you're gonna find it's gonna pop up on your agenda because of things that were done a long time ago. Anyway, that was, I just wanted to give you a little more detail.

Great, thank you for that detail. So do I have a motion to approve approve staff's report with conditions. Yeah. The Forest Conservation Plan, yes.

Yeah.

The Forest Conservation Plan with conditions.

I'll move to approve the Forest Conservation Plan with amendments.

Second.

All in favor? Aye. Aye. Aye. The ayes have it 5-0. Thank you so much. ends our planning board meeting for today. We'll see you next Thursday. Thank you.

Thank you very much.