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

KRC Comments On Draft Billboard Regulation Revisions  Posted: April 1, 2015
March 31, 2015

Rebecca W. Goodman, Esq.
Executive Director
Office of Legal Services
Ky.Transportation Cabinet
200 Mero Street
Frankfort, KY 40601
E-mail: Rebecca.Goodman@ky.gov

Re: Proposed Billboard Regulation Amendments

Dear Rebecca:

Thank you for the opportunity to review and comment on the proposed revisions to the billboard regulations addressing LED billboards, and pruning/removal of vegetation obscuring billboard messages.

I appreciate the time devoted by the Cabinet and the industry and other participants in the stakeholder discussions, and regret that I was unable to participate more actively in the process.

Both general and specific comments follow, referenced by issue or proposed regulation citation.

Constitutional Issues Regarding Vegetation Management

The existing policy of the Kentucky Transportation Cabinet (KTC) has been one of disallowing efforts to trim or remove trees and other vegetation in the right-of-ways of state and federal highways and roads. Despite numerous efforts to alter that policy legislatively, the General Assembly has not adopted such a permitting program, nor has it approved a pilot program for vegetation management in order to improve billboard visibility.

The proposal of the KTC to allow companies to apply for permits to prune and remove vegetation in public rights-of-way implicates two provisions of the Kentucky Constitution, since it authorizes a non-governmental entity to undertake activities on public lands which the general public would not be authorized to engage in but for the grant of sovereign authority to enter onto and to trim or remove public property.

The first section of the Kentucky Constitution so implicated is Section 3, which provides in full that:

"All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; but no property shall be exempt from taxation except as provided in this Constitution, and every grant of a franchise, privilege or exemption, shall remain subject to revocation, alteration or amendment."

The grant of a right to enter onto public land and to remove trees and other vegetation, is a “franchise” or a “privilege” within the meaning of the Constitution. As such, it would appear that a permit allowing access to public property for removal of trees and vegetation belonging to the Commonwealth, cannot be granted except “in consideration of public services.”

The decision of the Georgia Supreme Court in Garden Club of Georgia, Inc., v. Shackelford, 463 S.E.2d 470 (1995) invalidating state regulations allowing vegetation removal from public lands in order to increase visibility of billboards, explained the decision in a manner that casts serious doubt on the ability of the KTC to allow vegetation removal from rights-of-way:

"By implementing regulations allowing private companies to remove public property that blocks their signs, the state is giving an illegal gratuity. First, the state's tree-trimming regulations favor private individuals -- either the owners of the outdoor advertising signs or the persons leasing the signs. The rules allow them to obtain permits to trim and remove trees, shrubs, and plants on the state rights-of-way to make billboards and other advertising signs clearly visible from vehicles on the state's highways. Second, the state fails to receive a substantial benefit for use of this property. The information that the traveling public derives from the outdoor advertising signs located on private property is insufficient to qualify as a substantial benefit. Travelers can gain the same information about available goods and services from other sources without the loss of the state's natural resources.

Because an unobstructed view of outdoor advertising signs on private property substantially benefits the sign owners without providing an equivalent benefit to the state or its citizens, we hold that DOT's regulations violate the Georgia Constitution's prohibition against the granting of gratuities."

Id. at 24-5.

The second section of the Kentucky Constitution that appears to be implicated in the adoption of a vegetation control permitting program, is Section 177, which provides in full that:

"The credit of the Commonwealth shall not be given, pledged, or loaned to any individual, company, corporation or association, municipality, or political subdivision of the State; nor shall the Commonwealth become an owner or stockholder in, nor make donation to, any company, association or corporation; nor shall the Commonwealth construct a railroad or other highway."

To the extent that the permitting program would allow the destruction of trees and other vegetation growing in state rights-of-way in order to improve visibility of advertising devices, it would appear that the action would in effect donate the stumpage and amenity value of the vegetation to a private entity in a manner that could implicate this prohibition.

While under both Sections 3 and 177 of the Kentucky Constitution, transfers of property for less than fair market value have been upheld where there is a public purpose, and the term “public purpose,” has been broadly construed to include the state interest in promoting economic development, the logic of the Supreme Court in the Garden Club of Georgia that the information that would otherwise be conveyed by billboards can be obtained from other sources without the loss of state natural resources (i.e. right of way vegetation and trees) casts doubt on that proposition.

With these constitutional considerations in mind, KRC provides comments on the specific language of the vegetation regulation.

On Page 2, I would suggest elimination of the criteria in Section 2. Section 2(1)(a) is vague, since one could argue that any tree in a right of way presents some degree of risk to the motoring public. Where there is a potential hazard, the KTC should remove the right-of-way trees rather than issuing permits to allow a non-governmental actor to do so.

Similarly, Section 2(b)(1) references “personal property,” and it is unclear what personal property is being considered. As far as “enhancing visibility” in Section 2(1)(c), does the reference mean visibility for the driver, or visibility of the advertising device? In Section 2(1)(d), who determines whether a condition is “unsightly” or whether trimming or removing trees would “improve roadway aesthetics?”

I had understood that the purpose of a vegetation removal permit was to allow for removal or trimming of trees or other vegetation in order to increase the visibility of the legal outdoor advertising devices. While KRC has opposed such a permitting program, and believes that for legal non-conforming devices, such a program is inconsistent with the intent of federal and state laws that non-conforming uses be extinguished over time, if the state intends to reverse long-standing policy, then KRS suggests that the program be couched more directly in terms that don’t obscure or muddle the intent of the program, such as:

A permit to remove or prune vegetation in order to remove vegetative obstructions to visibility of an outdoor advertising device that are located in a public right-of-way under the jurisdiction of the Kentucky Transportation Cabinet, shall be obtained from the department, in accordance with the terms of this regulation, prior to any entry onto or disturbance of such right-of-way.

With respect to the legality of the removal and destruction of public property, in the form of trees and other roadside vegetation (as discussed above), KRC would think that at a minimum, the amenity and stumpage value of the trees and other vegetation would have to be calculated, and the applicant would have an obligation both to replant the area in which the vegetation was removed (which I recalled was something offered by the industry), and to replace or compensate the Commonwealth for the loss of amenity and stumpage value of removed vegetation, considering the loss of canopy and the time needed to replace lost canopy. My recollection was that the industry did not oppose some form of compensatory replanting in areas that would not obscure billboard visibility.

On Page 5, Line 15, the Kentucky State Nature Preserves Commission and U.S. Department of Fish and Wildlife should be consulted as well as KDFWR, and language should be included prohibiting vegetation removal that would adversely affect a state or federal threatened or endangered species or critical habitat.

Finally, it should be clarified that the vegetative trimming or removal authorized by the permits is for mechanical trimming or removal only, and does not include treatment with herbicides either for removal of species or for prophylactic use as part of a seeding and erosion control plan.

Many of the rights-of-way for state-maintained roads and highways are subject to permitting under the Kentucky Pollutant Discharge Elimination System program, in recognition that runoff from these right-of-way areas flow unfiltered and untreated into state waterways. Both active and “inert” ingredients in herbicides can have adverse effects on non-target terrestrial and aquatic species, and non-governmental entities should not be allowed to utilize such compounds on public rights-of-way.

Comments on 603 KAR 10:010 Static Advertising Devices

On Page 5, Line 9, “commercial industrial” should read “commercial or industrial.”

On Page 8, Line 16, KRC suggests rewriting the introduction to read “(8) The following shall not be considered routine maintenance and shall be prohibited:

On Page 8, Lines 18 and 19, I’d suggest rewriting as follows:

"(b) A change in the structural support, including material diameters, dimensions, or type, that results in prolonging the duration of the device, such as replacement of wood posts with steel posts or the replacement of a wood frame with a steel frame;"

On Page 9, Line 6, add a new (9) and renumber existing (9) to (10), to read:

"Replacement of a static advertising device with an electronic advertising device shall be prohibited where the static advertising device is non-conforming."

The FHWA has recognized that replacement of a static device with an electronic device would constitute a “substantial change” that is inconsistent with the requirements of federal regulation.

In the 2007 Guidance on Off-Premise Changeable Message Signs, issued by the U.S. Department of Transportation Federal Highway Administration, the FHWA reversed a long-standing position that off-premises Changeable Electronic Variable Message Signs (CEVMS) could not replace static advertising devices, and instead adopted the position that:

"[p]roposed laws, regulations, and procedures that would allow permitting CEVMS subject to acceptable criteria (as described below) do not violate a prohibition against ‘intermittent’ or ‘flashing’ or ‘moving’ lights as those terms are used in the various FSAs that have been entered into during the 1960s and 1970s."

Guidance, at p. 1.

The Guidance continued, explaining that the policy was limited to conforming signs:

"This guidance is applicable to conforming signs, as applying updated
technology to nonconforming signs would be considered a substantial
change and inconsistent with the requirements of 23 CFR 750.705(d)(5)."

Guidance, at p. 1.

23 CFR 750.707(d)(5) mandates that:

"[t]he sign must remain substantially the same as it was on the effective date of the State law or regulations. Reasonable repair and maintenance of the sign, including a change of advertising message, is not a change which would terminate nonconforming rights. Each State shall develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate nonconforming rights."

While the Commonwealth of Kentucky has the ability to define what constitutes “customary maintenance,” any actions regarding a non-conforming advertising device that is not “customary maintenance” is by definition a “substantial change” that is prohibited by federal regulation. Under no fair reading of the federal regulation could replacement of a static device with a CEVMS be considered “substantially the same” or “customary maintenance.”

On Page 9, (9) should be amended to remove the period and to include the following “, and shall be subject to an action for injunctive relief to direct the removal of the advertising device.”

On Page 15, the reference Line 3 to “Section 10” should read “Section 9.”

603 KAR 10:001 Definitions for 603 KAR Chapter 10.

On Page 3, Line 7, insert “one or more” before “existing.”

603 KAR 10:020 Electronic advertising devices.

As noted above, language needs to be included clarifying that a static advertising device that is legally non-conforming cannot be converted to an electronic advertising device, including a Changeable Electronic Variable Message Sign (CEVMS). The proposed regulation should also be revised to reflect throughout that a legally non-conforming device cannot be replaced by an electronic advertising device, including a CEVMS.

Additionally, the proposed language of Section 1(2)(c) needs to be modified in order to more broadly recognize the jurisdiction of local land use planning entities. While the proposed regulation recognizes regulations which “specifically regulates the erection and maintenance of electronic advertising devices,” that language is too narrow, since other zoning regulations beyond those specifically regulating electronic billboards, may exist that would regulate the placement or replacement of such devices. Additionally, such a narrow reference would allow for significant expansion of electronic advertising devices immediately after the regulation becomes final, since few if any local planning and zoning commissions or legislative bodies have adopted ordinances or regulations specifically regulating electronic billboards, given that until recently, the FHWA position had been that such advertising devices were prohibited by Federal/State Agreements.

KRC recommends replacing the language of Section 1(2)(c) with the following:

"Compliant with KRS Chapter 100 and any ordinances or regulations adopted pursuant to KRS Chapter 100, and any ordinances or regulations of a local legislative body specifically regulating the erection and maintenance of electronic advertising devices."

Section 1(3)(b) should be revised in the same manner.

This broader language is necessary for a third reason, which is that even absent a federal regulatory prohibition against substantially changing a legally non-conforming advertising device, (such as replacement of a static with an electronic variable message board), such a replacement may constitute an impermissible enlargement of a “nonconforming use” under KRS 100.

KRS 100.253 provides in pertinent part that:

"(1) The lawful use of a building or premises, existing at the time of the adoption of any zoning regulations affecting it, may be continued, although such use does not conform to the provisions of such regulations, except as otherwise provided herein.

(2) The board of adjustment shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted, nor shall the board permit a change from one (1) nonconforming use to another unless the new nonconforming use is in the same or a more restrictive classification[.]"

KRS 100.253(2) provides an exception to the rule for certain situations that are inapplicable here.

The case of Grannis v. Schroder, 978 S.W.2d 328 (Ky. 1998) suggests that replacement of a static with a CEVMS board would constitute an unlawful enlargement of the scope of nonconforming status under KRS 100.253:

"KRS 100.253, which recognizes that legal nonconforming uses have a right to exist, also recognizes that the policy and spirit of zoning laws are geared toward the gradual elimination of nonconforming structures. Attorney General v. Johnson, Ky., 355 S.W.2d 305 (1962); Franklin Planning and Zoning Commission v. Simpson County Lumber Company, Ky., 394 S.W.2d 593 (1965). Over the years, courts have developed a rule of interpretation that allows ordinary repairs, like replacement of decayed wooden walls, but not enhancements like replacement of a wooden wall with a brick wall. See A.L. Carrithers & Son v. City of Louisville, 250 Ky. 462, 63 S.W.2d 493 (1933)."

Id., at p. 332.

Similar to the wooden v. brick wall example, replacement of an existing static advertising device with a new CEVMS would constitute a prohibited “enhancement” rather than an ordinary repair or maintenance, and would appear to violate KRS 100.253. This matter is one of the issues before the state court in the CBS Outdoors LLC v. Louisville-Jefferson County Metro Government, CA 14-CI-05673, which will determine whether such a sign replacement in an area where the maintenance of a billboard is a non-conforming use under local zoning regulations, violates KRS 100.253(1).

Section 1(3)(c) should be revised to reflect that variances may be granted by a body other than the local governing body, and that the planning and zoning commission is not considered by law to be a “governing body,” but instead makes recommendations on zoning matters to the local governing body, which is the Fiscal Court or City Council, as applicable. The language should be revised to read:

"Compliant with any variance or conditional use permit granted pursuant to KRS Chapter 100."

Thank you for the opportunity to submit these comments, and please let me know if any of these points are in need of further clarification.

Cordially,


Tom FitzGerald
Director

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