Forest Conservation

Gorman Park, September 2011

Recently, there have been a few articles in the local press discussing forest sustainability. The Baltimore Sun wrote about complaints from forest advocates regarding development around Patapsco Valley State Park on both December 6 and December 7. After reading these articles, and driving by the Christmas tree lot set up at our local high school, I decided to look into forest conservation in Howard County.

In 1991, Maryland passed the Maryland Forest Conservation Act, which was followed by the Howard County Forest Conservation Act in 1993. These acts require developers to:  

address forest resources during the planning and review phases of land development. Any project proposing to clear or grade more than 20,000 square feet of forested land must provide a specified acreage of forest retention, reforestation, and/or afforestation relative to the proposed extent of forest clearing or grading.

The developer enters into a Forest Conservation Agreement, which is an easement, with Howard County. The developer must provide a Plat of Forest Conservation Easement (Plat), a Forest Conservation Plan (FCP), and a Deed of Forest Conservation Easement (Deed) before the County approves a final development plan. The Forest Conservation Plan details what actions the developer must take for the property in question . This includes whether the developer is engaging in forest retention or if he is to plant new trees within specific easements, including what species and sizes of trees are to be planted, and what protections are to be provided to the easements before, during, and after development.

In the event that there is no opportunity for forest conservation, the developer must pay a fee assessed per square foot of property to be developed.

The Department of Recreation and Parks (DRP) was granted the power to inspect forest easements by the Department of Planning and Zoning (DPZ) in 2001.

Now Agreements permit DRP staff to access easement areas to complete forest conservation inspections and to investigate possible violations of the Howard County FCA.  DRP staff members are directed by County planners within DPZ when to inspect specific forest conservation projects.  The costs of inspections are funded through fees paid by developers to the County.  Investigations of possible FCA violations are initiated by reports from concerned citizens, through the use of aerial photography or Geographical Information System (GIS) maps, and as a result of County personnel discovering a possible violation during the completion of their day-to-day activities.

Howard County requires a two-year survival and maintenance period for all forest conservation projects. Developers are required to post a bond throughout this period to guarantee compliance. A forest conservation project must pass an initial inspection before the two-year survival and maintenance period commences.  The inspection determines whether easement boundaries are correct, if planting and forest retention match the FCP, that protective signs are in place, that any violations are mitigated, that invasive species are being managed, and that the public is being educated.  A plot survey of reforestation and afforestation areas is completed to determine FCP compliance and tree survival.  A survival rate of 90% or better is required to initiate the two-year survival and maintenance period. A survival rate of 75% or better is required after two years.  Inspections may continue until the developer brings the project into compliance with the FCA.

If the DRP determines that there are encroachments or violations during the two-year survival and maintenance period, the developer must correct these issues. After the two-year survival and maintenance period ends, the DRP enforces FCA regulations. The DRP first tries to correct violations through public education and cooperation. After that, DRP can issue warning notices and civil citations to force compliances. Any collected fines fund DRP's restoration plan for mitigation of the site.

Howard County provides the following recommendations for project success in regards to forest conservation:

1. Request an extension from DPZ if a project is incomplete.
2. Verify the installation and replacement of forest conservation signs prior to scheduled inspections.
3. Educate the local community of forest conservation objectives and regulations.  It is best to respond to small problems before they become big problems.
4. Routinely monitor easements to assess tree survival and identify site-specific stressors.  Planting the right trees for a site will cost less than repeatedly replacing the wrong trees.  A developer may need to revise an FCP to deal with a problem.
5. Numerous invasive species thrive in Howard County and are capable of overtaking existing and planted trees.  Once again, routine monitoring and management can prevent a small problem from becoming a big problem.

Zombie Ground Rents

Just when I thought Halloween was over, zombie ground rents seem to have risen from the dead.

The Baltimore Sun had a great article detailing the recent Maryland Court of Appeals ruling which overturned the method of extinguishing ground rents created by the Maryland Legislature in 2007. Ground rents are a tenure, created by a grant in fee simple, where the grantor reserves to himself and his heirs a  rent, which is the interest of the money value of the land. Ground rents apply to the real estate, but not the structures attached to the land, such as a home or outbuilding. Zombie ground rents are those with no active - or in some cases known - ground rent owner.

Ground rents in Maryland are often vestiges of colonial America, with some dating back to the 1600s. The fees associated with the ground rent are often nominal. Some ground rent owners do not attempt to collect the fees, as the costs associated with the collection are deemed too high compared to the actual rent. Additionally, some ground rent owners do not know that they have the right to collect at all, as they received the right as an inheritance. Absentee ground rent owners can make selling property incredibly difficult for homeowners, especially those seeking a mortgage from an out-of-state bank unfamiliar with the peculiarities of Maryland's ground rent system. Additionally, in Maryland, the owner of the ground rent can place a lien against the buildings if the ground rent is not paid. This has led to many difficulties for homeowners who are looking to sell their home, only to discover that a lien was placed upon the building.

In 2007, the Maryland State legislature attempted to remedy these difficulties by passing a law requiring ground rent owners to register their right with the State Department of Assessments and Taxation. If the ground rent was not registered, a homeowner whose property was encumbered could pay a fee and have the property released from the ground rent. On October 25, 2011, the Maryland Court of Appeals ruled that this provision of the ground rent legislation was invalid. The case, Charles Muskin, Trustee v. State Department of Assessments and Taxation, No. 140, September Term, 2010, held that not registering a property did not eliminate the property rights held by the ground rent owner. The Court held that the legislation provided for a taking without just compensation of the property rights of the ground rent owner, and noted that the legislation provided no method for appeal once the rights were extinguished. The court also noted:

Real property and contractual rights form the basis for economic stability, such as it is, has been, and will become again hopefully. Allowing the “mere will of the Legislature” to shift drastically the fee simple ownership of land or cancel contractualobligations will shake further the confidence of citizens in their constitutional protections from government interference.