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

KRC questions legality of proposed regulations allowing electronic multi-message billboards, and allowing destruction of trees in public rights of way to improve billboard visibility.  Posted: May 23, 2015


May 21, 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

D. Ann Dangelo, Esq.
Asst. General Counsel
Office of Legal Services
Ky.Transportation Cabinet
200 Mero Street
Frankfort, KY 40601
E-mail: Ann.DAngelo@ky.gov

By email only

Re: Proposed Billboard Regulation Amendments
41 Kentucky Administrative Register 11

Dear Rebecca and Ann:

The Kentucky Resources Council, Inc. (Council) submits these comments for consideration by the Transportation Cabinet (Cabinet), in response to the publication of proposed regulations 603 KAR 10:002, 603 KAR 10:010, 603 KAR 5:155, and 603 KAR 10:021. The Council appreciates this opportunity to comment on the proposed revisions to the billboard regulations addressing LED billboards, and pruning/removal of vegetation obscuring billboard messages.

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 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 Cabinet 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 private 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 the private entity enter onto and to trim or remove/destroy public property in the form of trees and other vegetation.

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 Cabinet to allow vegetation removal from public 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.

Since there is nothing in the proposed regulation, 603 KAR 5:155, that provides a benefit or “public service” to the state or its citizens in return for the financial benefit derived by the advertising device owner from increasing or restoring the visibility of a private outdoor advertising device, the Council believes that as proposed 603 KAR 5:155 is inconsistent with Kentucky Constitution Section 3.

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 public 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.

Statutory Authority For Permitting Program For Vegetation Removal

In addition to constitutional concerns regarding the proposed vegetation removal regulation, the Council has serious concern that the Cabinet lacks the statutory authority to adopt a permitting program for “removal of vegetation near state roads and highways” for any purposes other than to maintain the integrity of the roads and the safety of the public. KRS 176.050(1)(i), which is cited as the statutory authority for the regulation, provides that:

"The department shall:…

(i) Promulgate administrative regulations under KRS Chapter 13A for the care and maintenance of roads after they have been constructed."

A permitting program designed to remove state-owned trees and other vegetation in order to increase the visibility of off-road private outdoor advertising devices is in no fashion a regulation “for the care” of a road or for the “maintenance” of a road.

KRS 13A.120 provides in part that:

"(1) (a) An administrative body may promulgate administrative regulations to implement a statute only when the act of the General Assembly creating
or amending the statute specifically authorizes the promulgation of
administrative regulations or administrative regulations are required by
federal law, in which case administrative regulations shall be no more
stringent than the federal law or regulations."

There is no federal law requirement for vegetation removal, and no “specific authorization” to adopt such a regulation under state law. Lacking such an authorization, the regulation should be withdrawn until such authorization is conferred by statute.

Specific Comments Regarding 603 KAR 5:155

Beyond these constitutional and statutory concerns, the Council has specific comments regarding the proposed regulation:

Section 2(1) indicates the purpose of the regulation as allowing a commercial or noncommercial entity to “remove or prune vegetation in order to remove vegetative obstructions to the visibility of a “noncommercial or commercial entity, including an outdoor advertising device.” As written, a permit could be obtained to remove vegetation in public rights of ways in order to improve the visibility of farms, single family residences, and commercial businesses as well as outdoor advertising devices. The Council questions the logic or necessity of allowing private entities to destroy public trees and vegetation in order to increase visibility to homes and businesses. The regulation should be modified to remove the phrase “a noncommercial or commercial entity, including” from Section 2(1), so that the regulation would permit removal of vegetation only for “an outdoor advertising device.”

Section 2(2) appears to conflict with Section 2(1), and the Cabinet is requested to explain whether Section 2(2) criteria are intended to be in addition to (1), or are intended to limit when vegetation can be removed under Section 2(1).

Section 2(1) criteria need to be better crafted in order to remove ambiguity. Section 2(1)(a) is vague, since one could argue that any tree in a right of way implicates the “safety of the traveling public” in some manner. Where there is a potential hazard, the Cabinet should remove the right-of-way trees rather than issuing permits to allow a non-governmental actor to do so.

Section 2(b)(1) references “personal property,” but it is unclear what and whose personal property is being considered. As far as “enhancing visibility” in Section 2(1)(c), does “enhance visibility for the travelling public” refer to the visibility of the driver, or the visibility of the billboard? In Section 2(1)(d), who determines whether a condition is “unsightly” or whether trimming or removing trees would “improve roadway aesthetics?” Leaving the decision as to what is “unsightly” and what would “improve roadway aesthetics” to the permit reviewer asks for subjective and inconsistent decisions, since what to one person is an aesthetic natural vista might to another appear to be unsightly.

In Section 5(4), language should be included prohibiting vegetation removal that would adversely affect the critical habitat of a state or federal threatened or endangered species, and the applicant should be required to consult with the Kentucky State Nature Preserves Commission and Kentucky Department for Fish and Wildlife Resources concerning protection and avoidance of harm to state-listed plant and animal threatened and endangered species and their habitat.

Section 3(3) should be revised to prohibit use of herbicides either for removal of plant 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

Section 4(8) should be rewritten for clarity, since as written it implies that all of the listed activities are maintenance of a “non routine” manner, when the listed activities are not maintenance at all. The introduction should read “(8) The following shall not be considered routine maintenance and shall be prohibited:…”

Section 4(8)(b) prohibits changes in structural support that result in “increased economic life,” yet that term is nowhere defined. For clarity, the term should be replaced with “that result in prolonging the existence of the device,” since the goal of the federal law with respect to nonconforming devices is that they eventually are retired and removed.

Section 1(1) should be revised to clarify that replacement of a static advertising device with an electronic advertising device is prohibited where the static advertising device is non-conforming.

The FHWA has recognized that replacement of a non-conforming 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.”

603 KAR 10:020 Electronic advertising devices.

The Council believes that the Cabinet should defer finalizing any regulation approving the erection and use of electronic advertising devices until a decision is rendered by the U.S. Court of Appeals for the District of Columbia in the case of Scenic America, Inc. v. U.S. Department of Transportation, et al., Case No. 14-5195. In that case, the Court has been asked to consider whether the 2007 Guidance Memorandum issued by the Federal Highway Administration, which abruptly reversed a 30-year interpretation of the Highway Beautification Act as prohibiting use of such devices. To move forward at this time may create conflicts between state and federal agencies concerning the obligations of the Commonwealth under federal law and existing federal-state agreements.

If and when the proposed regulation is finalized, the Council has these additional comments:

1. 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), or replaced by an electronic advertising device, including a CEVMS.

2. 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. The proposed regulation only recognizes regulations which “specifically regulates the erection and maintenance of electronic advertising devices.” That language is far too narrow, since other zoning regulations beyond those specifically regulating electronic billboards, exist that would regulate the placement or replacement of such devices.

For example, an advertising device may be located in a zoning classification that has made the board “nonconforming” for purposes of that zoning regulation. In such a case, the general prohibition on enlarging or increasing the intensity of nonconforming uses contained in KRS Chapter 100 and in the zoning regulation, would have applicability.

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).

By limiting the state regulation to respecting only those local ordinances or regulations that “specifically regulate[] the erection and maintenance of electronic advertising devices,” the Cabinet fails to accord proper deference to zoning regulations of more general applicability that may make such a device unlawful under zoning laws and regulations.

Additionally, using such a narrow reference invites 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.

The Council 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, including 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.

3. Section 1(3)(c) should be revised to reflect that variances may be granted by a body other than the local governing body, such as a Board of Zoning Adjustment. Also, 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."

Conclusion

Thank you for the opportunity to submit these comments, and for your consideration of these concerns. For the reasons stated above, the Council recommends that proposed 603 KAR 5:155 be withdrawn, and the final action on 603 KAR 10:021 be deferred pending the decision in the Scenic America case involving the 2007 FHWA Guidance Memorandum.

Cordially,


Tom FitzGerald
Director

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