House Bill 1583-First Edition

GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2009

H 1

HOUSE BILL 1583

Short Title: DOT Vegetation Removal Changes.		(Public)
Sponsors:	Representatives Cole, Holliman, Wainwright, Bell (Primary Sponsors); K. Alexander, Avila, Brisson, Coates, Cotham, Crawford, Dockham, Dollar, E. Floyd, Folwell, Gibson, Gillespie, Goforth, Gulley, Hill, Hughes, Jeffus, Jones, Lewis, Lucas, McCormick, Moore, Parmon, Samuelson, Setzer, Spear, Steen, Stewart, Sutton, Tolson, Tucker, E. Warren, Wray, and Yongue.
Referred to:	Transportation, if favorable, Finance.

May 6, 2009

A BILL TO BE ENTITLED

AN ACT to change the department of transportation selective vegetation removal policies and permit fees.

The General Assembly of North Carolina enacts:

SECTION 1. G.S. 136‑18.7 reads as rewritten:

"§ 136‑18.7. Fees.

The fee for a selective vegetation removal permit issued pursuant to G.S. 136‑18(5), (7), and (9) is ~~two hundred dollars ($200.00).~~three hundred dollars ($300.00) per permitted site and is nonrefundable."

SECTION 2. G.S. 136‑93 reads as rewritten:

"§ 136‑93. Openings, structures, pipes, trees, and issuance of permits.

(a) No opening or other interference whatsoever shall be made in any State road or highway other than streets not maintained by the Department of Transportation in cities and towns, nor shall any structure be placed thereon, nor shall any structure which has been placed thereon be changed or removed except in accordance with a written permit from the Department of Transportation or its duly authorized officers, who shall exercise complete and permanent control over such roads and highways. No State road or State highway, other than streets not maintained by the Department of Transportation in cities and towns, shall be dug up for laying or placing pipes, conduits, sewers, wires, railways, or other objects, and no tree or shrub in or on any State road or State highway shall be planted, trimmed, or removed, and no obstruction placed thereon, without a written permit as hereinbefore provided for, and then only in accordance with the regulations of said Department of Transportation or its duly authorized officers or employees; and the work shall be under the supervision and to the satisfaction of the Department of Transportation or its officers or employees, and the entire expense of replacing the highway in as good condition as before shall be paid by the persons, firms, or corporations to whom the permit is given, or by whom the work is done. The Department of Transportation, or its duly authorized officers, may, in its discretion, before granting a permit under the provisions of this section, require the applicant to file a satisfactory bond, payable to the State of North Carolina, in such an amount as may be deemed sufficient by the Department of Transportation or its duly authorized officers, conditioned upon the proper compliance with the requirements of this section by the person, firm, or corporation granted such permit. Any person making any opening in a State road or State highway, or placing any structure thereon, or changing or removing any structure thereon without obtaining a written permit as herein provided, or not in compliance with the terms of such permit, or otherwise violating the provisions of this section, shall be guilty of a Class 1 misdemeanor: Provided, this section shall not apply to railroad crossings. The railroads shall keep up said crossings as now provided by law.

(b) Requests for a permit for selective vegetation thinning, pruning, or removal shall be made by electronic documentation by the owner of the outdoor advertising sign or the owner of the business facility to the appropriate roadside environmental engineer in the Division of Highways.

(c) For outdoor advertising, the three-hundred-dollar ($300.00) nonrefundable fee established in G.S. 136‑18.7 shall accompany each annual outdoor advertising permit renewal if a selective vegetation permit is requested for the renewal period. For business facilities, the nonrefundable three-hundred-dollar ($300.00) fee required by G.S. 136‑18.7 shall accompany the electronic application for selective vegetation removal.

(d) Selective vegetation thinning, pruning, or removal shall be permitted only for the permittee's business facilities, or outdoor advertising signs adjacent to the highway right‑of‑way at locations where such facilities or outdoor advertising signs have been constructed. The provisions shall not be used to provide visibility to undeveloped property or on‑premise signs.

(e) For business facilities, the limits of selective clearing or thinning shall be restricted to the area of right‑of‑way immediately adjacent to frontage property of the facility but not to exceed 1,000 linear feet. A structural building facility must be present at the time of application and located on a parcel immediately adjacent to the right-of-way and be open and operational.

(f) Vegetation eligible for removal at business facilities includes all underbrush and trees less than four inches in diameter as measured four feet six inches from the ground. Trees that were present at the time the facility was constructed are not eligible for removal and shall be tagged with highly visible flagging by the permittee prior to vegetation removal. Such facilities are considered as constructed when approved for occupancy.

(g) The applicant for a vegetation removal permit for a business facility shall employ the services of a North Carolina licensed landscape architect or certified arborist for the initial application. The landscape architect or certified arborist will submit a report under seal that contains a tree inventory of existing trees in the removal zone for the business facility and include the age of any tree that existed before the business facility was constructed. The report will categorize tree species and include a site map of sufficient detail and dimensions. Reports for subsequent applications at the same site are not required. Any dispute relating to whether or not the tree existed before the business facility was constructed shall be resolved by information in the report from the licensed landscape architect or certified arborist.

(h) Other than trees that existed before the business facility was constructed, those four inches and greater in diameter as measured four feet six inches from the ground may be removed and replaced and replanted by the permittee on a caliper inch per caliper inch basis. Removal shall not exceed twenty percent (20%) density reduction per 100 linear feet per year. The permittee shall submit replacement plans by a licensed landscape architect for approval. All replacement trees shall be in a living and healthy condition prior to subsequent vegetation removal requests; if not, then vegetation removal requests will be denied.

(i) For outdoor advertising signs, vegetation removal limits shall be restricted to a maximum selective vegetation removal zone for each sign face which shall be determined under the provisions of G.S. 136‑133.1.

(j) The selective vegetation removal request may be investigated on site by Maintenance and Roadside Environmental personnel and a representative of the applicant.

(k) If the application for vegetation removal is for a site located within the corporate limits of a city or town, local officials shall be given the opportunity to review the application if the city or town has previously advised the Division roadside environmental engineer of the desire to review such applications.

(l) Selective vegetation removal for outdoor advertising signs located on primary routes receiving no federal aid funds shall conform to the selective vegetation removal limits for outdoor advertising as directed pursuant to G.S. 136‑129.

(m) For the purposes of this section, business facility means any commercial, industrial, institutional, multiuse development, or office facility."

SECTION 3. Chapter 136 of the General Statutes is amended by adding a new section to read:

"§ 136‑93.2. Monetary value of trees.

The monetary value for trees removed from State rights‑of‑way shall be determined on an annual basis by the Department. The average cost per caliper inch shall be based on the lower value of either the average wholesale commercial nursery prices for hardwood and conifer plants, times a 2.5 multiplier for installation and warranty or the average cost per caliper inch for tree planting contracts let by the Department of Transportation in the previous calendar year. The value shall be determined and published by the Department no later than December 15 of each year. The values established pursuant to this section shall be used in calculating the monetary value of trees removed from State rights‑of‑way beginning January 1 of each year."

SECTION 4. G.S. 136‑129 reads as rewritten:

"§ 136‑129. Limitations of outdoor advertising devices.

(a) No outdoor advertising shall be erected or maintained within 660 feet of the nearest edge of the right‑of‑way of the interstate or primary highway systems in this State so as to be visible from the main‑traveled way thereof after the effective date of this Article as determined by G.S. 136‑140, except the following:

(1) Directional and other official signs and notices, which signs and notices shall include those authorized and permitted by Chapter 136 of the General Statutes, which include but are not limited to official signs and notices pertaining to natural wonders, scenic and historic attractions and signs erected and maintained by a public utility, electric or telephone membership corporation, or municipality for the purpose of giving warning of or information as to the location of an underground cable, pipeline or other installation.

(2) Outdoor advertising which advertises the sale or lease of property upon which it is located.

(2a) Outdoor advertising which advertises the sale of any fruit or vegetable crop by the grower at a roadside stand or by having the purchaser pick the crop on the property on which the crop is grown provided: (i) the sign is no more than two feet long on any side; (ii) the sign is located on property owned or leased by the grower where the crop is grown; (iii) the grower is also the seller; and (iv) the sign is kept in place by the grower for no more than 30 days.

(3) Outdoor advertising which advertises activities conducted on the property upon which it is located.

(4) Outdoor advertising, in conformity with the rules and regulations promulgated by the Department of Transportation, located in areas which are zoned industrial or commercial under authority of State law.

(5) Outdoor advertising, in conformity with the rules and regulations promulgated by the Department of Transportation, located in unzoned commercial or industrial areas.

(b) No two outdoor advertising structures shall be erected less than 500 feet apart on any route if the structures are erected on routes outside the limits of an incorporated municipality.

(c) The fee for outdoor advertising structures specified in subdivisions (a)(4) and (a)(5) of this section shall not exceed one hundred fifty dollars ($150.00) for the initial fee and ninety dollars ($90.00) for the annual renewal fee. Thirty dollars ($30.00) of each initial and annual renewal fee collected pursuant to this section shall be used by the Department for highway beautification."

SECTION 5. Chapter 136 of the General Statutes is amended by adding a new section to read:

"§ 136‑133.1. Outdoor advertising selective vegetation removal.

(a) The maximum removal zone for vegetation for each sign face shall be determined as follows:

(1) The point located on the edge of the right‑of‑way that is the closest point to the centerline of the sign face shall be point A.

(2) The point located 150 feet down the right‑of‑way line in the direction of the sign viewing zone shall be point B.

(3) The point on the edge of the pavement of the travel way that is the closest to the centerline of the sign shall be point C.

(4) The point 50 feet down the edge of the pavement in the direction of the sign viewing zone from point C shall be point D.

(5) The point 375 feet down the edge of the pavement in the direction of the sign viewing zone from point C shall be point E.

(6) Lines drawn from point A to point D and from point B to point E shall define the limits of the vegetation removal area.

(b) With the exception of existing trees, vegetation permitted to be removed shall be defined as any tree, shrub, or undergrowth within the removal zone created by points A, B, E, and D. Any existing trees that were in existence before an outdoor advertising structure was erected shall not be eligible for removal and shall be tagged with a highly visible marker by the permittee prior to vegetation removal. For the purposes of this section, an existing tree is defined as a tree with a diameter of four inches or greater, as measured four feet six inches from the ground. An outdoor advertising sign is considered constructed when the sign is completely erected with a sign face.

(c) The applicant shall employ the services of a North Carolina licensed landscape architect or certified arborist for the initial application for selective vegetation removal. The landscape architect or certified arborist shall submit a report under seal that contains a tree inventory of existing trees in the removal zone created by points A, B, E, and D for outdoor advertising signs and shall include the age of any trees that existed before the outdoor advertising was constructed. The report shall categorize trees and shall include a site map of sufficient detail and dimensions. Reports for subsequent applications at the same site are not required. Any dispute relating to whether or not the trees existed before the outdoor advertising sign was constructed shall be resolved by information in the report from the licensed landscape architect or certified arborist.

(d) Trees that existed before the construction of an outdoor advertising sign may be removed if the applicant agrees to remove two nonconforming outdoor advertising signs for each conforming sign at which removal of existing trees is requested. The surrendered nonconforming signs must be fully disassembled before any removal of existing trees is permitted and shall not be eligible for future outdoor advertising permits.

(e) Tree branches within a highway right‑of‑way that encroach into the removal zone from the zone created by points A, C, and D may be pruned.

(f) No person, firm, or entity shall cut, trim, or otherwise cause to be removed, vegetation that is in front of, or adjacent to, outdoor advertising and within the limits of the highway right‑of‑way for the purpose of enhancing the visibility of outdoor advertising unless permitted to do so by the Department."

SECTION 6. Chapter 136 of the General Statutes is amended by adding a new section to read:

"§ 136‑133.2. Issuance or denial of a vegetation removal permit.

(a) Permits to remove vegetation may only be granted for outdoor advertising locations that have been permitted at least two years and at the discretion of the Department. No more than 30 days following receipt of an application for vegetation removal, the Division of Highways roadside environmental engineer shall approve or deny the application. If the application is denied, the Division roadside environmental engineer shall advise the applicant, in writing, by certified mail, of the reasons for the denial.

(b) The application shall be denied by the Division roadside environmental engineer if:

(1) It requires the removal of trees that were in existence before the business or the outdoor advertising sign was established. An existing tree shall be defined as a tree that is four inches or greater in diameter as measured four feet six inches from the ground.

(2) The application is for the opening of view to an outdoor advertising sign or business which has been declared illegal, is currently the subject of litigation, or is under investigation by the Department for nonpermitted activity.

(3) The application is for the opening of view to an outdoor advertising sign that was obscured from view at the time of erection of the sign.

(4) Removal of vegetation will adversely affect the safety of the traveling public.

(5) Trees, shrubs, or other vegetation of any sort were planted in accordance with a local, State, or federal beautification project.

(6) Planting was done in conjunction with a designed noise barrier.

(7) The applicant has not performed satisfactory work on previous requests under the provisions of this section. This may not be cause for denial if the applicant engages a landscape architect or certified arborist to perform the work.

(8) It involves opening of views to junkyards."

SECTION 7. Chapter 136 of the General Statutes is amended by adding a new section to read:

"§ 136‑133.3. Appeal of decision by Division of Highways roadside environmental engineer to Secretary of Transportation.

(a) Should any permit applicant disagree with a decision of the appropriate Division roadside environmental engineer pertaining to the denial of a permit for selective vegetation removal, the permit applicant shall have the right to appeal to the Secretary of Transportation pursuant to the procedures hereinafter set out.

(b) Within 30 days from the time of receipt of the decision of the Division roadside environmental engineer, the permit applicant shall submit a written appeal to the Secretary of Transportation setting forth with particularity the facts and arguments upon which the appeal is based. The appeal shall be sent to the Secretary by certified mail, return receipt requested, with a copy to the Division roadside environmental engineer.

(c) Upon receipt of the written appeal, the Secretary of Transportation shall review the written appeal and the Division roadside environmental engineer's decision, as well as any available documents, exhibits, or other evidence bearing on the appeal, and shall render the final agency decision, supported by findings of fact and conclusions of law. The final agency decision shall be served upon the appealing party by certified mail, return receipt requested, no later than 90 days after the Secretary receives the written appeal. A copy of the final agency decision shall also be mailed to the Division roadside environmental engineer.

(d) A person aggrieved by a decision made pursuant to this section may seek judicial review of the final agency decision pursuant to G.S. 136‑134.1."

SECTION 8. Chapter 136 of the General Statutes is amended by adding a new section to read:

"§ 136‑133.4. Selective vegetation removal permits.

(a) Selected vegetation within the approved limits shall be thinned, pruned, or removed by the permittee or his agent in accordance with accepted International Society of Arboriculture (ISA) standards. A Division of Highways inspector may be present while work is underway.

(b) Routine maintenance is not allowed. However, permits are valid for the entire renewal period. The permittee may remove vegetation more than one time per year. A 48‑hour notification shall be provided to the Division roadside environmental engineer by the permittee before entering the right‑of‑way.

(c) The permittee, or his agent, shall not impede the flow of traffic on the highway while performing the work. Access to the work site on controlled access highways must be gained without using the main travel way of the highway. The Division roadside environmental engineer shall determine the traffic control signage that may be required. The permittee shall furnish, erect, and maintain the required signs as directed by the Division roadside environmental engineer. The permittee, or his agent, shall wear safety vests that conform to OSHA standards while performing work.

(d) Any damage to vegetation designated to remain at the site, to highway fences, signs, paved areas, or other facilities shall be repaired or replaced by the permittee to the condition prior to the occurrence of the damage caused by the permittee or his agent. All trimmings, laps, and debris shall be removed from the right‑of‑way and disposed of in areas provided by the permittee. No burning or burying of trimmings, laps, or debris shall be permitted on the highway right‑of‑way. When chipping is used to dispose of trimmings, chips may be neatly spread on a right‑of‑way at locations which the Division roadside environmental engineer determines will not be harmful to the environment or affect traffic safety.

(e) Failure to comply with all the requirements specified in the permit, unless otherwise mutually resolved by the Department and the permittee, shall result in a five‑year moratorium for vegetation removal at the site, a summary revocation of the outdoor advertising permit, and forfeiture of the performance bond as determined by the Secretary of Transportation. The moratorium shall begin upon execution of a settlement agreement or entry of a final disposition in the case."

SECTION 9. Chapter 136 of the General Statutes is amended by adding a new section to read:

"§ 136‑133.5. Denial of a permit for proposed outdoor advertising.

(a) Should the appropriate district engineer determine that a proposed outdoor advertising structure would not conform to the standards of outdoor advertising as set out in the Outdoor Advertising Control Act, the district engineer shall refuse to issue a permit for that proposed outdoor advertising structure.

(b) When a violation of the Outdoor Advertising Control Act has been discovered, the district engineer shall notify the permit applicant by certified mail, return receipt requested, in the form of a letter setting forth the factual and statutory or regulatory basis for the denial and include a copy of the act.

(c) The Department shall not issue permits for new outdoor advertising signs at a sign location for a period of five years where the unlawful destruction or illegal cutting of vegetation has occurred within 500 feet on either side of the proposed sign location and as measured along the edge of pavement of the main travel way of the nearest controlled route. For the purposes of this section, unlawful destruction or illegal cutting is defined as the destruction or cutting of trees, shrubs, or other vegetation on the State‑owned or maintained rights‑of‑way by anyone other than the Department or its authorized agents, or without written permission of the Department.

(d) Before a permit is denied, the Department shall determine and disclose evidence that the unlawful destruction or illegal cutting would create, increase, or improve a view to a proposed outdoor advertising sign from the main travel way of the nearest controlled route.

(e) The five‑year period shall begin on the date the Department executes a settlement agreement or final disposition of the case is entered.

(f) The five‑year prohibition period for a new sign permit shall apply to all sign locations, including the following:

(1) Sign locations where the unlawful destruction or illegal cutting of vegetation occurs prior to the time the location becomes a conforming location.

(2) Sign locations where a revocation of an existing permit has been upheld and a sign has been removed.

(3) Sign locations where the unlawful destruction or illegal cutting occurs prior to receipt of an outdoor advertising permit application.

(4) Sign locations where the unlawful destruction or illegal cutting occurs following receipt of an outdoor advertising permit application, but prior to final issuance of the permit by the Department of Transportation.

(5) Where existing trees, if they were to reach the average mature size for that species, would make the proposed sign faces, when erected, not completely visible from the viewing zone. For purposes of this subsection only, "existing trees" are those trees four inches or greater in diameter as measured four feet six inches from the ground. "Viewing zone" means the area which is 500 feet as measured along the edge of the main travel way of the controlled route on each side of the proposed sign structure which will have a sign face.

(g) Outdoor advertising permits shall not be issued to a location if the zoning is not part of comprehensive zoning or the zoning constitutes spot zoning or strip zoning, which shall be defined as zoning designed primarily for the purpose of permitting outdoor advertising signs in an area which would not normally permit outdoor advertising.

(h) Outdoor advertising permits shall not be issued to a location for a period of 12 months prior to the proposed letting of a new construction contract that may affect the spacing or location requirements for an outdoor advertising structure until the project is completed.

(i) Outdoor advertising permits shall not be issued for a location on a North Carolina or United States route designated as a scenic byway."

SECTION 10. Chapter 136 of the General Statutes is amended by adding a new section to read:

"§ 136‑133.6. Unlawful destruction or illegal cutting.

(a) When vegetation destruction occurs by mechanical, chemical, or other means without a permit, and upon written notification via certified mail by the Division roadside environmental engineer, the following shall be addressed to the permittee within 30 days of receipt:

(1) The outdoor advertising permit holder or, in the case of a business or private property, the owner of the commercial, institutional, industrial, or office facility or the private property owner shall employ the services of a North Carolina licensed landscape architect or certified arborist who shall submit a report under seal that contains a tree inventory of existing trees, shrubs, or groundcover impacted. The report will categorize trees by species and caliper size and include a site map of sufficient detail and dimensions. In the event that trees have been destroyed and caliper size cannot be determined, three plots adjacent to the site shall be inventoried, each containing an area of one‑tenth acre. An average caliper density per acre shall be determined. This density shall be applied to the area of unlawful destruction.

(2) The outdoor advertising permit holder or, in the case of a business or private property, the owner of the commercial, institutional, industrial. or office facility or the private property owner shall contact the Department of Agriculture and Consumer Services, Pesticide Section, if unauthorized pesticide applications appear to have been applied and include a copy of the agency's report and findings.

(3) The outdoor advertising permit holder or, in the case of a business or private property, the owner of the commercial, institutional, industrial, or office facility or the private property owner shall obtain a copy of a police report from local law enforcement and shall obtain and complete a State Bureau of Investigation's State Property Incident Report.

(4) The outdoor advertising sign owner, the owner of the property on which the outdoor advertising sign is located, and the individual, business, or organization whose advertisement appears on the sign face shall submit notarized affidavits indicating admission or denial of responsibility or knowledge of the incident, as well as knowledge associated with agents or assigns of the aforementioned.

(5) For a commercial, industrial, institutional, office facility, or private property, the property owner and business owner, or their respective agents, shall submit notarized affidavits indicating admission or denial of responsibility or knowledge of the incident, as well as knowledge associated with agents or assigns of the aforementioned.

(b) Failure to comply with the provisions of subsection (a) of this section by the outdoor advertising permit holder or, in the case of a business or private property, the owner of the commercial, institutional, industrial, or office facility or the private property owner shall require referral of the case by the Department to the Attorney General for investigation.

(c) A violation of this section shall be a Class 2 misdemeanor and shall result in the site being ineligible for a selective vegetation removal permit for a period of five years."

SECTION 11. This act becomes effective January 1, 2010.