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Expanding Tree Protection and Replacement in the Critical Area Overlay District
For the purpose of implementing and exceeding State Chesapeake Bay critical area mandates for the City of Annapolis critical area protection program by requiring permits to remove trees of a certain size in the City’s critical area; requiring property owners to replace trees that are removed; creating a fee-in-lieu program when on-site re-planting is not feasible; providing for financial hardship relief through the Watershed Restoration Fund; updating the standards for granting a Critical Area variance; and generally relating to tree canopy protection and expansion in the Critical Area Overlay District in Title 21 of the City Code.
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CITY COUNCIL OF THE
City of Annapolis
Ordinance 18-26
Introduced by: Alderman Savidge
Co-sponsored by:
Referred to:
● Planning Commission
● Environmental Matters Committee
● Rules and City Government Committee
AN ORDINANCE concerning
Expanding Tree Protection and Replacement
in the Critical Area Overlay District
FOR the purpose of implementing and exceeding State Chesapeake Bay critical area mandates for the City of Annapolis critical area protection program by requiring permits to remove trees of a certain size in the City’s critical area; requiring property owners to replace trees that are removed; creating a fee-in-lieu program when on-site re-planting is not feasible; providing for financial hardship relief through the Watershed Restoration Fund; updating the standards for granting a Critical Area variance; and generally relating to tree canopy protection and expansion in the Critical Area Overlay District in Title 21 of the City Code.
BY repealing and reenacting with amendments the following portions of the Code of the City of Annapolis, 2026 Edition:
● Section 21.54.030 (Permit Required)
● Section 21.54.130 (Trees in the Critical Area)
● Section 21.54.160 (Variances)
● Section 21.54.170 (Administrative variances)
● Section 21.54.190 (Fees, Fines, Violations, and Appeals)
● Section 21.72.010 (Terms)
WHEREAS, The state Chesapeake and Atlantic Coastal Bays Critical Area Protection Program (Natural Resources Article, §§ 8-1801 through 8-1817, Annotated Code of Maryland) gives each local jurisdiction primary responsibility for developing and carrying out its own Critical Area program, subject to review and approval by the Critical Area Commission; and
WHEREAS, The goals of a local Critical Area program include protecting water quality, conserving fish, wildlife, and plant habitat, and improving climate resiliency (Natural Resources Article, § 8-1808(b)); and
WHEREAS, The City reviewed its regulations for the Critical Area Overlay District in light of recent changes to state law and found that much of Chapter 21.54 of the City Code, which pertains to the Critical Area Overlay, has remained unchanged since its adoption in 2005 (O-1-04) and was last updated in 2020; and
WHEREAS, The City committed to achieving 50% tree canopy coverage by 2050. However, an Urban Tree Canopy Assessment conducted by PlanIT Geo, Inc. in 2024 revealed that the current citywide canopy coverage is approximately 42%, while the tree canopy has only increased by 0.04% from 2011 to 2023; and
WHEREAS, The City’s residential areas experienced a 0.3% loss of tree canopy, even though the City has 726 acres of planting space in residential areas, much of that area is in the City’s critical area overlay zones along the waterfront, where canopy cover is mostly in the 35% to 45% range; and
WHEREAS, The City Council finds that requiring a permit and replacement trees when trees are removed in the Critical Area, beyond the State minimum standards, will help the City increase its tree canopy rather than only maintain it; now, therefore,
SECTION I: BE IT ESTABLISHED AND ORDAINED BY THE ANNAPOLIS CITY COUNCIL that the Code of the City of Annapolis shall be amended to read as follows:
Title 21 - PLANNING AND ZONING
Division IV - Overlay District Regulations
Chapter 21.54 - Critical Area Overlay
Section 21.54.030 - EnforcementPermit Required.
A. No permit shall be issued for any use of land unless the Director of Planning and Zoning finds that the use conforms to the requirements of this chapter.
B. The Planning and Zoning Director shall have the authority to enforce this chapter as provided in Chapter 21.36 <https://library.municode.com/md/annapolis/codes/code_of_ordinances?nodeId=TIT21PLZO_DIVIIADEN_CH21.36ZOEN>.
Section 21.54.130 - Site design plan review. (Repealed)Trees in the Critical Area
A. Generally.
1. The purpose of this section is to:
a. Sustain and expand tree canopy cover within the Critical Area to protect the water quality of the Chesapeake Bay and its tributaries;
b. Preserve and enhance wildlife habitat within the Critical Area by maintaining a healthy and diverse urban forest;
c. Require the replacement of trees removed within the Critical Area to prevent a net loss of canopy cover;
d. Provide clear and consistent criteria for the issuance of tree removal permits so that property owners and the Department have predictable standards for evaluating removal requests; and
e. Ensure that the Department's implementing regulations are consistent with the goals of this section and the Critical Area program.
2. Unless otherwise defined in this chapter, the terms used in this section have the meanings stated in § 21.72.010 (Terms).
B. Tree Removal Permit Required.
1. Property owners shall:
a. Obtain a permit before removing trees larger than five inches in diameter as measured four and one-half feet above the ground;
b. Provide photographic evidence to justify tree removal;
c. Submit any information that the Department may require as part of the removal permit, including an arborist report or a more detailed assessment of the tree or trees; and
d. Provide for a Department inspection, as determined by the Department.
2. This section does not apply to tree removal governed by Chapter 21.71 (Forest Conservation) or to tree removal conducted as part of a project with an issued building or grading permit.
3. The topping of a tree, or pruning that removes more than one-third of the live crown of a tree within a 12-month period, is prohibited within the Critical Area except upon prior written approval of the Department. Unapproved topping or destructive pruning of a tree constitutes removal of the tree for purposes of this section, including its replacement requirements, fines, and penalties.
C. Tree Removal Criteria. A tree shall meet at least one of the following criteria before a removal permit is issued:
1. The tree is dead, dying, or diseased, as determined by the Department or a certified arborist;
2. The tree has sustained physical damage or injury from an identifiable cause, such as a storm, construction activity, or vehicle impact, to the extent that it is likely to die or become diseased, as determined by the Department or a certified arborist;
3. The removal of the tree is part of a landscape or site improvement plan approved by the Department that demonstrates a net environmental benefit to the Critical Area, including through the replacement of the removed tree with a species better suited to the site, the removal of a non-native species, or the improvement of stormwater management on the property; or
4. Any two of the following:
a. The removal will serve the purposes of this section or will enhance the health of the remaining trees in the Critical Area;
b. The removal will avoid, alleviate, or reduce unwarranted hardship or damage to the property or any structure on the property;
c. The removal is consistent with good forestry practices, including considerations of tree spacing, landscape health, the removal of invasive species, and utility infrastructure clearance, as determined by the Department.
D. Tree Replacement.
1. The property owner shall plant replacement trees in accordance with the Department's regulations. These plantings shall be detailed in the tree removal permit application.
2. Notwithstanding subsection D(1) of this section, if a permit is issued solely because the tree is dead, as determined by the Department, the property owner shall plant one replacement tree or pay a fee in lieu of planting pursuant to subsection E of this section.
3. Except as provided in D(2), the minimum replacement ratio, measured by diameter at breast height (DBH), is as follows:
|
Removed tree |
Replacement Tree(s) |
|
5-10 inches (DBH) |
1 tree |
|
10.1-20 inches (DBH) |
2 trees |
|
Greater than 20 inches (DBH) |
3 trees |
4. Replacement trees shall be a native species unless otherwise approved by the Department.
5. Requirements for replacement tree size, location, and variety to reestablish the visual character and environmental benefits of the removed tree shall be subject to regulations established by the Department.
6. The area where the tree was removed shall be the priority for replacing the removed tree. Alternate planting locations may be recommended by the property owner and approved by the Department.
7. If the Department determines that there is no suitable area to replace the tree on the property, or if the Department determines that the forest on-site is already at maximum healthy density and a replacement tree will compete or endanger nearby trees, the property owner may be permitted to replace the tree as listed in following priority order:
a. Replace the tree at another location off the property within the Critical Area, including a street tree within the Critical Area;
b. Replace the tree at another location outside the Critical Area; or
c. Pay a fee in lieu of planting a new tree pursuant to subsection E of this section.
8. If a property owner demonstrates, to the satisfaction of the Department, that replacing the tree creates financial hardship, the City may use the Watershed Restoration Fund established under § 17.10.180 to cover the cost of a replacement tree, subject to the availability of funds.
E. Fee-in-Lieu.
1. Fee-in-lieu payments shall be at a rate established by the City Council in the annual Fees Schedule and shall reflect the cost of planting an equivalent replacement tree.
2. Fees collected under subsection D(7)(c) shall be deposited into a dedicated account and used exclusively for tree replacement within the Critical Area.
F. Enforcement.
1. Generally. The Department shall enforce this section and adopt regulations necessary to its implementation.
2. Property Owner.
a. A copy of any required tree removal permit must be posted at the job site by the property owner for the duration of the project.
b. If the required mitigation is not completed within one year of permit issuance, the property owner shall be subject to a fine as established in the annual Fines Schedule under § 21.54.190.
c. Payment of all outstanding fines issued pursuant to this section is required prior to continuing any work performed as part of the tree removal permit.
3. Contractors. If a tree care or arborist contractor violates the provisions of this section more than twice within a 12-month period, the contractor shall be prohibited from the following for a duration of 20 months:
a. Obtaining or renewing a City business license to operate in the City; and
b. Being issued City tree removal permits for projects in which the contractor is the responsible party.
Section 21.54.160 - Variances.
A. Generally. Variances to the provisions of this City of Annapolis critical area program shall be considered due to special features of a site or other circumstances or where a literal enforcement of provisions within the critical area program would result in unwarranted hardship to an applicant.
B. Applications.
1. Applications for variances and administrative variances shall be made in writing to the Planning and Zoning Director with a copy to the Environmental Commission for sites forty thousand square feet or greater in accordance with the procedures in Section 21.28.020 and 21.28.030 of this Zoning Code and for administrative variances, the procedures in Section 21.18.020 of this Zoning Code. A copy of all variances and administrative variances shall be provided to the Critical Area Commission in accordance with COMAR 27.03.01.04.D as may be amended.
2. The Planning and Zoning Director shall not accept an application for a variance or administrative variance to:
a. Authorize a use that is not allowed by the Critical Area land classification of the lot or parcel;
b. Adjust the amount or type of mitigation required by the Critical Area regulations or this Critical Area chapter; or
c. Provide relief that could otherwise be obtained through an administrative process provided for elsewhere in Title 21.
C. In accordance with Natural Resources Article 8-1808(d)(3)(ii) as may be amended, a variance to the critical area program requirements may not be granted unless based on written findings, that the applicant has overcome the presumption that the specific development activity for which the variance is required does not conform with this chapter and the applicant has satisfied each of the following standards. The written findings may be based on evidence introduced and testimony presented by the applicant, any City agency, or another government agency, or a person deemed appropriate by the Planning Director or Board of Appeals.
C. Standards for Granting a Variance.
1. Generally.
a. This subsection implements Natural Resources (NR) Article § 8-1808(d) of the Annotated Code of Maryland.
b. In considering a variance application, the City shall presume that the specific development activity for which the variance is required does not conform to this chapter.
c. A variance for critical area program requirements may be granted only if written findings show the applicant overcame the presumption and met each standard.
d. The written findings may be based on evidence introduced and testimony presented by the applicant, any City agency, another government agency, or a person deemed appropriate by the Director of Planning and Zoning or Board of Appeals.
2. Requirements. A variance may not be granted unless written findings state that the applicant has shown that:
1a. Due to special features of the site or special conditions or circumstances peculiar to the land or structure involved, a literal enforcement of provisions and requirements of this Critical Area chapter would result in unwarranted hardship;
2b. A literal interpretation of the provisions of this chapter shall deprive the applicant of the use of land or a structure permitted to others in accordance with the provisions of this Critical Area chapter;
3c. The granting of a variance shall not confer upon an applicant any special privilege that would be denied by this Critical Area chapter to other lands or structures within the Critical Area;
4d. The variance request is not based upon conditions or circumstances which are the result of actions by the applicant, including the commencement of development activity before an application for a variance has been filed;
5e. The request does not arise from any condition relating to land or building use, either permitted or non-conforming on any neighboring property; and
6f. The granting of a variance shall not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the Critical Area; and
7g. The granting of the variance shall be in harmony with the general spirit and intent of the State Critical Area Law and this Critical Area chapter.;
h. The applicant has a substantial need for the variance that is not based on convenience, personal preference, or financial advantage; and
i. Where applicable, the development could not be located outside the Habitat Protection Area.
3. Accessory Structures and Uses.
a. This paragraph does not apply to a new accessory dwelling unit.
b. In applying the standard in subsection C(2)(a) to a variance for a new accessory structure or accessory use, there is a rebuttable presumption that an existing accessory structure or accessory use on the lot or parcel demonstrates reasonable and significant use.
4. Comparison Properties.
a. This paragraph does not apply to a new accessory dwelling unit.
b. In applying the standard in subsection C(2)(b), the applicant may compare the applicant's property only to other properties or accessory structures that:
i. Are located in the Critical Area;
ii. Were developed after the adoption of the City's Critical Area program;
iii. Were conforming and legally authorized at the time of development;
iv. Are similarly situated; and
v. If located in a Modified Buffer Area, were developed in accordance with § 21.54.106.
D. After-the-Fact Requests.
1. The Director of Planning and Zoning may not accept an application of a variance to legalize a violation of this subtitle, including an unpermitted structure or other development activity until the Director of Planning and Zoning:
a. Issues a notice of violation; and
b. Assesses an administrative or civil penalty for the violation.
2. The Board of Appeals may not approve an after-the-fact variance unless an applicant has:
a. Fully paid all administrative, civil and criminal penalties imposed under Natural Resources Article, §8-1808(c)(l)(iii)14-15 and (2)(i), Annotated Code of Maryland;
b. Prepared a restoration or mitigation plan, approved by the Director of Planning and Zoning, to abate impacts to water quality or natural resources as a result of the violation; and
c. Performed the abatement measures in the approved plan in accordance with the local Critical Area program.
3. If the Board of Appeals denies the requested after-the-fact variance, then the Director of Planning and Zoning shall:
a. Order removal or relocation of any structure; and
b. Order restoration of the affected resources.
E. Conditions and Mitigation. The Board of Appeals shall impose conditions on the use or development of a property which is granted a variance as it may find reasonable to ensure that the spirit and intent of this chapter is maintained including, but not limited to the following:
1. Adverse impacts resulting from the granting of the variance shall be mitigated as recommended by the Director of Planning and Zoning, but not less than by planting on the site per square foot of the variance granted at no less than a three to one basis.
2. New or expanded structures or lot coverage shall be located the greatest possible distance from mean high water, the landward edge of tidal wetlands, tributary streams, nontidal wetlands, or steep slopes.
3. An applicant who cannot comply with the above mitigation requirements is required to pay into the fee-in-lieu program established under Chapter 17.09 as established by the City Council.
4. Any required reforestation/mitigation/offset areas shall be protected from future development by a conservation easement granted to the City or a landscape maintenance agreement as approved by the Director of Planning and Zoning.
F. Critical Area Commission Notification. Within ten working days after a written decision regarding a variance application is issued, a copy of the decision shall be sent to the Critical Area Commission. The Director of Planning and Zoning may not issue a permit for the activity that was the subject of the application until the applicable thirty-day appeal period has elapsed.
G. In accordance with Natural Resources Article, 8-1808(d)(2), Annotated Code of Maryland, as may be amended, if a person meets the threshold standing requirements under federal law, the person shall have standing to participate as a party in a variance or administrative variance.
Section 21.54.170 - Administrative variances.
A. Purpose. The purpose of this section is to authorize delegation of Board of Appeals approval authority to the Planning and Zoning Director to apply the standards as specified in Section 21.54.160 to the following type of Critical Area variance requests.
In the case of residential structures currently located within the designated one hundred-foot Critical Area buffer, an expansion of these structures; provided, that the expansion occurs parallel to the shoreline and does not further encroach into the waterway yard.
B. Conditions. Administrative variances are subject to the following conditions:
1. This section applies to new development or redevelopment within the critical area buffer.
2. This section only applies to single-family lots of record at the time of program approval, December 1, 1985.
3. Development may not impact any habitat protection areas other than the Critical Area buffer.
4. The applicant shall be required to maintain existing natural vegetation in the Critical Area buffer to the extent possible.
5. The disturbance to the Critical Area buffer shall be the least intrusion necessary.
6. Any development in the Critical Area buffer shall require mitigation/enhancement/or offsets, as follows:
a. The extent of the lot or parcel shoreward of the new development or redevelopment shall be required to remain, or shall be established and maintained, in natural vegetation; and
b. Natural vegetation of an area three times the extent of the lot coverage shall be created in a Critical Area buffer offset area or other location as may be determined by the City.
7. An applicant who cannot comply with the above planting or offset requirements is required to pay into the fee-in-lieu program established under Chapter 17.09 as established by the City Council.
Any fees-in-lieu collected under these provisions shall be placed in an account that shall assure their use only for projects within the critical area for the benefit of wildlife habitat, water quality improvements or environmental education. The status of these funds shall be reported at the time of comprehensive review. If it is not possible to carry out offsets or other mitigation within the critical area, any plantings or other habitat/water quality improvement should occur within the affected watershed.
8. Any required reforestation/mitigation/offset areas . shall be protected from future development by a conservation easement granted to the City or a landscape maintenance agreement as approved by the Director of Planning and Zoning.
9. A copy of all administrative variances shall be provided to the Critical Area Commission in accordance with COMAR 27.03.01.04.D as may be amended.
10. Within ten working days after a written decision regarding an administrative variance application is issued, a copy of the decision shall be sent to the Critical Area Commission. The Director of Planning and Zoning may not issue a permit for the activity that was the subject of the application until the applicable thirty-day appeal period has elapsed.
11. The request for an administrative variance and all supporting documentation shall be reviewed by the Director of Planning and Zoning per the standards set forth in Section 21.54.160. The Director of Planning and Zoning shall, within days, issue a decision with regard to the proposed variance as to whether the variance shall be granted, denied or granted subject to specified terms and conditions.
12. The Critical Area Commission may appeal an administrative variance granted by the Planning and Zoning Director to the Board of Appeals in conformance with the provisions of Chapter 21.30.
C. Procedures. Administrative variances shall follow the procedures in Section 21.18.020 of this Zoning Code, except that the proposed variance is subject to the standards in Section 21.54.160.
D. Appeals. The Board of Appeals shall hear an appeal of the Director of Planning and Zoning's decision on an administrative variance on the record, in accordance with Chapter 21.30, and shall grant deference to the Director's findings of fact.
Section 21.54.190 - Fees, Fines, Violations, and Appeals.
An appeal may be made to the Board of Appeals, in accordance with Chapter 21.30, by a person, firm or corporation aggrieved or affected by a decision of the Planning and Zoning Director in accordance with this chapter.
A. Generally. Fees and fines required by this chapter shall be as established by the City Council in the annual Fees Schedule and Fines Schedule.
B. Permit Fees.
1. There shall be a permit application fee.
2. The tree-removal permit fee shall be paid when the tree removal permit is submitted.
C. Fee-in-Lieu.
1. The Department shall adopt regulations necessary to implement a fee-in-lieu program for tree replacement.
2. All fee-in-lieu funds shall be collected as established in the annual Fees Schedule.
D. Violations and Fines.
1. The penalties for violations of this chapter are set forth in § 21.36.010 (Stop work orders, corrective measures orders, and the revocation of permits) and § 21.36.030 (Planning and Zoning Infraction).
2. Each day a violation continues is a separate violation for which a separate citation may be issued.
3. The Department may seek an injunction or other equitable relief requiring a person to cease violation of this chapter and take corrective action to restore an area.
E. Appeals.
1. An individual aggrieved by a decision on a permit under this chapter may appeal to the Board of Appeals pursuant to Chapter 21.30 (Appeals).
2. In deciding an appeal of a decision on a tree removal permit, the Board of Appeals shall apply the criteria in § 21.54.130(C) and the replacement requirements in § 21.54.130(D).
Section 21.72.010 - Terms
[Note: the following term changes shall be inserted in alphabetical order within § 21.72.010’s existing Terms list]
"Critical Area" means all lands and waters defined in §8-1807 of the Natural Resources Article, Annotated Code of Maryland. Critical Area includes:
a. All waters of and lands under the Chesapeake Bay and Atlantic Coastal Bays and their tributaries to the head of tide;
b. All State and private wetlands designated under Title 16 <https://library.municode.com/md/annapolis/codes/code_of_ordinances?nodeId=TIT16PUSE> of the Natural Resources Article, Annotated Code of Maryland;
c. All land and water areas within one thousand feet beyond the landward boundaries of State or private wetlands and the heads of tides designated under Title 16 <https://library.municode.com/md/annapolis/codes/code_of_ordinances?nodeId=TIT16PUSE> of the Natural Resources Article, Annotated Code of Maryland; and
d. Modification to these areas through inclusions or exclusions approved by the Commission as specified in §8-1807 of the Natural Resources Article, Annotated Code of Maryland.
"Critical Area" means specific sections of the City shown on the Critical Area Overlay District Map, pursuant to Chapter 21.54. This generally includes all City land and waters extending 1,000 feet beyond the landward boundaries of State or private wetlands and the heads of tides designated in Title 16 of the Environment Article of the Annotated Code of Maryland.
"Tree" means 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.
"Tree" means a large, woody plant with one or more self-supporting stems or trunks and numerous branches that reach a height of at least 20 feet when fully grown.
SECTION II: BE IT FURTHER ESTABLISHED AND ORDAINED BY THE ANNAPOLIS CITY COUNCIL that:
1. The Department may adopt such regulations as are necessary and proper for the full implementation of this Ordinance;
2. This ordinance shall take effect upon passage; however, enforcement of its provisions shall be contingent upon the review and approval of the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (hereinafter referred to as "the Commission"); and
3. Such approval must be obtained as an amendment to the City’s local Critical Area Program, in accordance with the requirements outlined in the Natural Resources Article, § 8-1809 of the Annotated Code of Maryland and the criteria set forth in COMAR Title 27.
SECTION III: AND BE IT FINALLY ESTABLISHED AND ORDAINED BY THE ANNAPOLIS CITY COUNCIL that the Commission approval process shall be as follows:
A. Submission to the Commission. The Director of Planning and Zoning shall submit a complete copy of this ordinance to the Commission for review as a local program amendment within 30 days of its passage, along with any supporting documentation required by the Commission;
B. Commission Review Process.
1. The Commission will review local program amendments as “refinements” in accordance with COMAR Title 27 and will make a recommendation to the full Commission;
2. The full Commission, which meets approximately every six weeks, will vote to either approve, approve with conditions, or deny the amendment;
3. A copy of all notices, staff reports, and Commission decisions related to this ordinance will be provided to the City Council;
C. Conditions of Approval.
1. If the Commission approves this ordinance with conditions that require changes to its text, the Director of Planning and Zoning shall promptly inform the City Council; and
2. This ordinance shall become effective in its entirety and be enforced by the Department upon the fulfillment of all specified conditions and the approval of any required amendments by the City Council, as well as upon the date on which the Commission grants its final approval.
D. Enactment. If the Commission does not act on this amendment within the period established under NR § 8-1809(q)(1) of the Annotated Maryland Code, the amendment shall be deemed approved, and this Ordinance shall take effect and be enforced accordingly.