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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Council voices concerns with Billboard Bill  Posted: February 8, 2012

TESTIMONY OF TOM FITZGERALD, DIRECTOR, KENTUCKY RESOURCES COUNCIL, CONCERNING HOUSE COMMITTEE SUBSTITUTE TO HOUSE BILL 226

Mr. Chairman, Committee members, my name is Tom FitzGerald and I am Director of the Kentucky Resources Council. Many of you are aware that the Council provides, without charge, legal and technical assistance and advocacy on environmental, utility, and energy issues. Mr. Chairman, I realized as I was driving here this morning that my appearance here today marks the beginning of my 34th year as an advocate before the General Assembly.

Mr. Chairman, as you know from my testimony on the various iterations of this bill that have come before this committee for at least the past decade, I donít believe that it is sound public policy to create a program that will result in increasing distractions for the motoring public in our Commonwealth. If, however, it is the determination of this Committee and of the House and Senate that this program should be created, there are several fundamental problems with the current House Committee Substitute that need to be addressed.

Before I briefly (uncharacteristically for me) highlight the major problems, I want to apologize to the committee members for not having contacted you prior to this meeting. I received the proposed committee sub late Friday afternoon, circulated my suggested edits to Representative Bell, the Cabinet, and Leigh Ann on Monday, and have not had a chance to present these concerns directly to Rep. Bell due to his illness. It has been my policy these many years not to work for or against a bill outside of committee until I have first talked with the primary sponsor.

The major problems that the Committee Substitute presents are five.
First, I am very concerned with the fiscal impact of adding a new permitting and monitoring program to a Cabinet branch that is already strapped for staff and is already under pressure from the Federal Highway Administration to correct fundamental deficiencies in the management of the billboard program that funding shortfalls have created. The proposed $250 fee doesnít come close to defraying the agency costs for processing some 250 anticipated permit applications, as well as managing the bonding, certifying those contracted to do the work, monitoring compliance and conducting the required site inspection and closeout process. If the General Assembly intends to create a new permitting and inspection program for the benefit of the outdoor advertising industry, the full cost of the permitting and of the inspections contemplated by the bill should be borne by the beneficiaries in the outdoor advertising industry, and not the Cabinet or the taxpayers.

Second, as written the bill would allow owners of nonconforming billboards to obtain permits to allow trimming and pruning of public right-of-way trees. Nonconforming boards, by their very definition, are not in conformity with the location, spacing, distance, or other requirements of the billboard act or local zoning, and those nonconforming rights are to be extinguished over time, and not enlarged or extended. 47 years after enactment of the Highway Beautification Act and Kentuckyís Billboard Act, no owner of a nonconforming board has any reasonable expectation that public property will be altered to assure continued visual access to a nonconsenting motoring public.

Third, there are no standards included in the Committee Substitute to guide the issuance or denial of the permit, and the lack of such standards would make each permit issuance or denial decision subject to constitutional challenge. A delegation from the General Assembly to the Department of the authority to make a decision on a permit application, absent any criteria to guide that decision, would be rejected by a reviewing court as a unlawful delegation of the power to legislate, in contravention of Kentucky Constitution Sections 27 and 28, and as arbitrary government action in contravention of Section 2 of the Kentucky Constitution.

Fourth, the two clauses providing for automatic issuance if an agency of state government or of a municipality fails to act within a time certain on an application, are not an appropriate remedy for inaction, particularly when the bill imposes a new workload on both state and local governments without fully funding the work.
Finally, the definition of "trim and prune" needs to be modified to reflect that there are no superfluous parts of trees and to narrow the scope to trimming and pruning only shoots and branches, not trunks.

There are a number of other technical matters that should be addressed, which I have outlined for the sponsor and Cabinet, but those are the major issues that should be resolved before this bill moves forward.

Mr. Chairman, Committee members, I appreciate your time and attention, and would be happy to answer any questions you might have.

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