March 21, 2006
MUNICIPAL REGULATION OF FOREST PRACTICES
By: Kevin E. McCarthy, Principal Analyst
You asked for a discussion of mechanisms municipalities can use to regulate clear-cutting of trees and other forest practices.
Municipalities can restrict clear-cutting and other forest practices on proposed new development requiring wetland, subdivision, and zoning approval. Under certain circumstances, they can regulate clear-cutting unrelated to development under wetland and ridgeline protection regulations, but state law generally preempts municipalities from regulating commercial forest practices on undeveloped land.
In addition to these regulatory mechanisms, which apply to private land, municipal tree wardens may adopt regulations regarding the care and preservation of trees and shrubs in the right of way of town roads and impose reasonable fines for violating such regulations.
WETLANDS (CGS § 22A-38 ET SEQ.)
The law requires municipalities to regulate certain activities affecting inland wetlands, which may include cutting and removing trees. No regulated activity can take place in a wetland without a permit issued by the inland wetland agency. Agencies can also regulate activities in upland areas outside of the wetland, but only if in practice they are likely to affect the wetland.
By law, regulated activities are those operations within, or use of, a wetland or watercourse that involve (1) removal or deposition of material of the wetland or watercourse or (2) obstruction, construction, alteration, or pollution of the wetland or watercourse (CGS § 22a-38). The law allows municipal wetlands regulations to go beyond the Department of Environmental Protection regulations, so long as they are consistent with the state regulation. Several towns, including Canterbury, Killingly, Rocky Hill, Stonington, Vernon, West Hartford, Windsor, and Woodbury, specifically regulate clear-cutting in wetlands, and in some cases in upland areas under their regulations. In addition, several towns require permits for commercial logging in wetlands.
Developers must apply for a wetland permit when they apply for planning and zoning approval of project that impinges on a wetland, and planning and zoning commissions cannot act until the wetlands agency acts (see CGS §§ 8-3(g), 8-3c, and 8-26). By law, municipalities can require developers to modify plans in ways that mitigate a project's impact on inland wetlands.
SUBDIVISION REGULATION (CGS § 8-25)
The statutes allow municipalities to adopt subdivision regulations, which require developers to prepare raw land for development in a way that promotes public health and safety. Among other things, the regulations must ensure that developers take steps to control soil erosion and sedimentation. For this reason, regulations can restrict the removal of trees or clear cutting as a means of minimizing erosion and sedimentation. In Greenwich, for example, if a developer proposes to clear-cut subdivided lots, the town will often require that an erosion and sedimentation control be implemented, particularly if the stumps will be removed and the area graded. Middlefield takes a different approach in areas zoned as Environmental Conservation Rural districts. In these areas, lots must be designed based on “consideration, respect and reasonable preservation” of indigenous vegetation such as mature specimen trees, among other things.
The regulations may also require developers to provide open spaces. To achieve this purpose, the municipal subdivision regulations may require the retention of groves of trees as part of their open space requirements. For example, Killingly requires developers to identify existing large trees on their subdivision plans and has used this information to protect existing groves.
ZONING (CGS § 8-2 ET SEQ.)
Site Plan Review (CGS § 8-3(g))
The law allows zoning regulations to require that a site plan be filed with an application to determine whether a proposed structure conforms with the specific provisions of the regulations. If the site plan involves an activity regulated by a wetlands agency, the plan must also be submitted to that agency.
The Coastal Area Management law requires 41 municipalities to review site plans of proposed projects in state-designated coastal areas to determine if they will have any potentially adverse effects on coastal resources, including the visual quality of "natural vistas and view points". The requirement applies to any projects requiring zoning, subdivision, and resubdivision approval, and municipal projects requiring the local planning commission's comments (CGS § 22a-105 (a)).
Developers proposing projects in the coastal areas must submit a site plan that, among other things, shows the location of coastal resources on and adjacent to the site and assesses the extent to which the coastal resources can accommodate the proposed use. The municipality may approve, modify, condition, or deny the plan, depending on whether the project's potential adverse effects (including harm to visual quality and erosion) are acceptable. Municipalities have discretion in how they deal with potential adverse effects. For example, Westport requires proposed land uses that need to located near the water provide scenic views or vista preservation easements, in addition to other amenities.
Special Permits (CGS § 8-2 (a))
Special permits allow municipalities to address problems peculiar to an otherwise permitted use. The statutes set two conditions under which municipalities can require special permits: (1) the standards for getting the permit must be specified in the zoning regulations and (2) the reasons for requiring the permit must be to protect public health, safety, convenience, and property values.
These provisions can be used to regulate clear cutting in a proposed project. For example, Wallingford often requires that trees be saved as a condition of granting a special permit, most recently in the development of a Home Depot store, where several large trees were saved by designing landscaped areas around them. Stonington and several other municipalities require the retention of vegetated buffers in connection with special permit developments.
Under the Coastal Management Act, coastal municipalities must review and approve site plans in coastal areas for consistency with the act's policies. The review must determine if a site plan will adversely affect scenic viewpoints and other coastal resources and decide if the effects are acceptable. The law defines adverse effects and the criteria for determining what effects are acceptable (CGS § 22a-93(15). Developers, not municipalities, must prove that a site plan is consistent with the law and that the potential adverse effects are acceptable.
A number of non-coastal municipalities have taken or are considering taking steps to protect viewsheds. Vernon's Conservation Commission is currently drafting regulations for proposal that would address viewshed impacts of developments and timbering and clear cutting on undeveloped lots.
Ridgeline Protection (CGS §§ 8-1aa and 8-2)
The law authorizes zoning regulation of developments in setback areas along 44 named traprock ridgelines and four named hills. It defines the setback as the area bounded by (1) a line that parallels the ridgeline at a distance of 150 feet on its more wooded side and (2) the contour line on its rockier side where the slope is less than 50% for 50 or more feet. The regulation can, among other things, restrict clear cutting. On the other hand, municipalities must permit selective timbering and certain other activities as of right in these areas.
PREEMPTION OF LOCAL FOREST PRACTICES REGULATION (CGS § 23-65F ET SEQ.)
The law preempts municipalities from regulating certain forest practices. By law, forest practices are activities that may alter the physical or vegetative characteristics of forest land that is undertaken in connection with the harvest of commercial forest products. "Forest land" is a portion of a parcel of land (1) that is at least one acre in size and meets other criteria and (2) that has no structures, maintained landscaping, accessway or other improvement. Commercial forest products are those produced from forest land in amounts greater than 50 cords, 150 tons, or 25,000 board feet of wood, whichever measure is appropriate, in any 12-month period.
The preemption does not apply if the harvest is undertaken to convert forest land to other uses and the conversion has been approved by the planning or zoning commission (under certain circumstances, the wetlands agency also must also approve). In addition, the preemption does not apply to 20 municipalities, if the Department of Environmental Protection approves their forest practices regulations. They are: Berlin, Brookfield, Chester, Deep River, East Haddam, Essex, Glastonbury, Granby, Haddam, Kent, Lyme, Newtown, Old Lyme, Old Saybrook, Redding, Stafford, Somers, Warren, Washington, and Willington.