SB 155: Can't See The Forest For The ..... Billboards?

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SB 155: Can't See The Forest For The ..... Billboards?  Posted: March 7, 2007
Before the House Transportation Committee
March 6, 2007

Mr. Chairman, Committee members, for as long as this issue has been before the General Assembly, the Kentucky Resources Council has opposed the destruction of public tree stands along the roadsides of interstate highways for the purpose of assuring private billboard companies visual access to the motoring public. In the name of consistency and so as not to disappoint Senator Harris, who told me in the Senate Committee that he would have been disappointed had I not showed up to oppose the bill, I appear here again to do so.

The bill does two things, and KRC opposes them both. First, the bill creates the permitting system that will allow destruction of public timber stands in order to accommodate the billboard industry?s desire to assure the perpetual visibility of their advertisements. Additionally, the bill extends the duration of nonconforming billboards and the potential cost to the state for removal of such boards by providing overly-generous definitions of when a billboard is “destroyed” and what constitutes “routine maintenance.”

Regarding the destruction of right-of-way tree stands, the bill creates a process for issuance of permits to advertising companies allowing “trimming or pruning,” but it is not trimming and pruning in the usual sense of the word. Instead, “trim and prune” is defined as the “selective removal of vegetation” that obscure or “interfere with the effectiveness” of billboards on interstate highways. Additionally, the bill allows removal of vegetation not only where the vegetation is in fact currently obscuring the billboard message, but also where the trees might in the next two years, obscure or “interfere with the effectiveness of” a billboard.

Members of the Committee, I don’t know about you but if I told my wife that I was going to trim and prune the yard and then I fired up the chainsaw and cut down all of the trees and shrubs, I’d be in some trouble. The committee needs to be aware that notwithstanding the reference to the Tree Care Industry ANSI Standard A300 in the definition of “trim or prune,” the trimming and pruning allowed in the bill is not for the health of the trees, rather is it the health of the billboard company whose commercial message isn’t being effective in distracting the motoring public that we are attempting to advance by destroying the trees.

These permits authorizing the removal of trees from public rights-of-way within a 750-foot swath in front of billboards and up to 1125 feet where the billboards are of a V orientation, in order to provide a billboard owner a privilege that under law is not a legitimate expectation – the right to indefinitely destroy public resources to assure that the motoring public will be exposed in perpetuity to the commercial message on the billboard. There is no case of which I am aware holding that there is a right possessed by billboard companies to be seen from a highway – instead, as early as 1932 in the case of Perlmutter v. Greene, 182 N.E. 5, the court in a New York case rejected an argument that the state could not erect a screen so as to obscure a billboard, concluding that “no adjacent owner has the vested right to be seen from the street[.]” Similarly, in Outdoor Advertising Association of Tennessee v. Shaw, 598 S.W.2d 783 (1980) the industry argued that the licensing of a billboard did not confer some special right of visibility or impose some duty on the state to maintain visibility. The court stated “no authority has been cited or found to sustain this novel theory which this Court is unwilling to incorporate for the first time into the law.” A North Carolina appellate court similarly rejected this argument in Adams Outdoor Advertising of Charlotte v. North Carolina Department of Transportation, 434 S.E.2d 666 (N.C. App. 1993)

I would note also that the amount of clearing allowed under this bill, between 750 and 1125 feet, far exceeds that allowed in many other states, such as North Carolina, where the recent debate was whether 250 or 500 feet was appropriate.

Finally, as noted by one commentator , the bill creates a process for removing right-of-way trees that is arguably inconsistent with the state’s obligations for highways built with federal aid. 23 U.S.C. 116 requires that any highway built with federal aid must be maintained by the state as long as it is part of the federal-aid system. Maintenance is specifically defined as including the roadside, and 23 CFR 1.23 requires that “all real property within the right-of-way boundaries of a project shall be devoted exclusively to public highway purposes.” It is difficult to see how destruction of trees and shrubs in the highway right-of-way for the purpose of making billboards more visible is “maintenance” as opposed to destruction of public property for a non-public, non-highway purpose. Where the highway project contained landscaping elements the conflict is that much clearer since FHWA concurrence is required before a state can be relieved of its obligation to maintain a federally-funded landscaping project. In the absence of such concurrence, the state violates 23 U.S.C. 116 and could suffer sanctions including withholding further project approvals pending restoration of maintenance. Yet nothing in this bill requires consultation with FHWA or concurrence for federal-aid highways.

KRC believes that destruction of public trees and other property in order to guarantee exposure of commercial messages to a motoring public on public thoroughfares is inappropriate as a matter of public policy. A billboard owners has no more a legitimate expectation or any right of being able to cut down public trees in rights-of-way than it has in assuming that the right-of-way will never host a state sign, or never be elevated in grade, or otherwise will never be altered in a way that would obscure the billboard.

KRC is concerned with the bill for another reason – there is no provision in the bill protecting the rights of local governments to establish more restrictive policies. The beautification campaigns of many communities include afforestation of public rights-of-way, and this bill cuts against the grain of those programs, since it provides no savings clause for local communities.

During the many years since this issue has been before this body, I have made a point of looking at the roadside tree stands, and as you go drive on our highways and interstates I would urge you to do so. There are some fairly extensive standards of healthy trees along our highways that could be lost if the state policy were to change.

KRC is concerned also with the provisions of the bill that address nonconforming advertising devices – those that are not in compliance with law but are allowed to continue to exist until just compensation is paid to eliminate the billboard. Existing regulation provides that nonconforming advertising devices may continue under such circumstances provided that they are not destroyed or subject to non-routine maintenance. “Destroyed” is defined as 50% or more damage under 603 KAR 3:080, yet this bill would allow up to 60% damage before a nonconforming device would be considered destroyed, thus increasing the cost to the state to remove nonconforming devices. No fiscal note is attached to the bill, however. The 60% allowance is inconsistent with existing regulation, and out of line with other states, which generally set the threshold at 50% (such as Indiana, Pennsylvania, and others).

Regarding “routine maintenance,” existing regulation does not consider “adding guys or struts for the stabilization of the device or substantially changing the device” or “replacement or repair of panels, poles, or facings or the addition of new panels, poles or facings” to be routine maintenance, and those activities are prohibited – this bill would consider “repair of existing stringers, panels, facings, or poles, or the replacement of existing stringers, panels or facings” to be routine maintenance.

In closing, I ask that you not support the bill since it takes us down a road to a policy both with respect to cutting public trees, and allowing reconstruction and prolonging the life of nonconforming billboards, that we believe is unsound. We believe that Kentucky’s current policy, which is consistent with about half of the states in the union, is the better policy. Visitors come to take in the beauty of our state, and it would be a less attractive landscape with those trees removed in order to support the imposition of some commercial message from a billboard onto the motoring public. Thank you.

By Kentucky Resources Council on 03/07/2007 5:32 PM
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