TRANSPORTATION CABINET

Department of Highways

Division of Maintenance

(Amended After Comments)

 

††††† 603 KAR 10:030. Removal of vegetation related to advertising devices.

 

††††† RELATES TO: KRS 177.830-177.890, 177.990(2), 23 U.S.C. 131, 23 C.F.R. Part 750

††††† STATUTORY AUTHORITY: KRS 177.860, 23 U.S.C. 131

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 177.860 requires the cabinet to promulgate administrative regulations establishing standards for advertising devices. This administrative regulation establishes a permitting process by which the owner of an advertising device may apply for a permit to remove vegetation blocking the view of an advertising device.

 

††††† Section 1. View Permit Application and Eligibility. (1) The owner of an advertising device that is visible from a highway may apply to the department for a view permit to remove or prune vegetation that is growing on the state right-of-way to improve the view of an advertising device.

††††† (2) The following advertising devices may be eligible for a view permit:

††††† (a) An off-premise advertising device located in a protected area that has been in existence for five (5) years or more that meets the requirements of subsection (5) of this section;

††††† (b) An advertising device not located in a protected area that has been in existence for five (5) years or more; and

††††† (c) An on-premise advertising device if the vegetation management does not affect the sign viewing zone of an off-premise advertising device.

††††† (3) A view permit shall not be issued:

††††† (a) For a nonconforming, abandoned, or illegal off-premise advertising device located in a protected area;

††††† (b) For an advertising device visible from a scenic highway;

††††† (c) If the four (4) off-premise advertising devices have not been approved and removed as required pursuant to subsection (5) of this section;

††††† (d) If the applicant, including subsidiaries, has three (3) view permits with work that has not been completed;

††††† (e) For work proposed within medians, interchange quadrants, or within interchange areas, except along the outside shoulders of the outermost ramps;

††††† (f) Where the applicant proposes to access the advertising device over state owned right-of-way;

††††† (g) Where the vegetation to be pruned or removed is part of a beautification project implemented prior to the view permit application; or

††††† (h) If the applicant does not comply with this administrative regulation.

††††† (4) The submitted application for a view permit shall include:

††††† (a) A completed Application for Outdoor Advertising Device View Permit, TC Form 99-208;

††††† (b) The address and telephone number of the owner of the advertising device;†††††

††††† (c) A photograph, location map, and scaled drawing showing the location of the advertising device, the sign viewing zone, and target viewing zone;

††††† (d) A vegetation management plan submitted by a certified arborist that shall include:

††††† 1. A general description of vegetation in the sign viewing zone;

††††† 2. An inventory of trees larger than three (3) inches in diameter measuring six (6) inches from the ground surface individually, and trees that are proposed to be pruned or otherwise impacted shall be noted; and

††††† 3. A general description of work to be performed in the sign viewing zone;

††††† (e) Proof that the applicant has obtained local, state, or federal approval where required;

††††† (f) The name and address of the contractor that will be performing the work;

††††† (g) A signed release from frontage[contiguous] property owners allowing the applicant to perform the requested vegetation removal or pruning;

††††† (h) A seeding and erosion control plan pursuant to the departmentís manual, Standard Specifications for Road and Bridge Construction;

††††† (i) If not provided per paragraph (e) of this subsection, a letter or permit stating the local governing body, including local tree boards where established, does not object to the view permit;

††††† (j) The location of off-premise advertising devices proposed to be removed by the applicant if necessary to meet the requirements of subsection (5) of this section;

††††† (k) The proposed work schedule;

††††† (l) A performance bond;

††††† (m) Proof of liability insurance equal to or in excess of $3 million. The department shall be listed as the "Certificate Holder;"

††††† (n) Consent from a private property owner that gives the owner of the advertising device access from the private property to the work site; and

††††† (o) A work zone plan.

††††† (5)(a) Four (4) off-premise advertising devices located in a protected area shall be removed prior to receiving a view permit for an off-premise advertising device that is eligible as established in subsection (2)(a) of this section.

††††† (b) The permittee shall receive a conditional permit until the four (4) off-premise advertising devices are removed pursuant to paragraph (a) of this subsection.

††††† (c) If the permittee does not own four (4) off-premise advertising devices, the devices shall be obtained in order to comply with this subsection. In special cases, upon written petition and for good cause shown, the commissioner of highways may permit deviations from this paragraph.

††††† (d) The off-premise advertising devices to be removed shall be:

††††† 1. Approved by the department for removal; and

††††† 2. Non-conforming or illegal off-premise static or electronic advertising devices located on † the same highway type as the view permit; or

††††† 3. Legal, illegal, or nonconforming static or electronic advertising devices visible from a scenic highway.

††††† (6) An application shall be submitted electronically.

††††† (7) This administrative regulation shall not be construed to permit an activity that conflicts with a law, regulation, or agreement at the federal, state, or local level.

 

††††† Section 2. View Permit Restrictions. (1) A view permittee shall not be allowed to:

††††† (a) Remove more than twenty-five percent (25) percent of the crown of each tree;

††††† (b) Remove vegetation with a diameter of three (3) inches or more measuring six (6) inches from the ground surface;

††††† (c) Thin or selectively prune a tree part greater than one-and-a-half (1 1/2) inches in diameter;

††††† (d) Access the sign viewing zone from the adjacent highway utilizing state right-of-way. Access to the sign viewing zone shall only be obtained from private property owners;

††††† (e) Alter the target viewing zone for the life of the advertising device;

††††† (f) Remove or prune vegetation without the supervision of a certified arborist; or

(g) Remove a redbud, dogwood, or the state tree.

††††† (2) Work performed pursuant to a view permit shall be performed within 180 consecutive calendar days of the work start date.

††††† (3) If the view permit allows for the removal of a tree, the following restrictions shall apply:

††††† (a) Tree stumps and roots on a slope of 3:1 or less that project through or appear on the ground surface shall be removed by cutting or grinding flush with the surrounding ground surface.

††††† (b) A hole or void created by the removal or grinding of stumps shall be filled, graded, and compacted with acceptable fill material.

††††† (c) Tree stumps and roots on a slope greater than 3:1 shall be removed to a height of three (3) inches or less above the surrounding ground. Stump height shall be measured from the top of the stump to the base of the stump on the lowest side of the slope.

††††† (d) A tree stump may be treated with a selective herbicide if approved by the department. The herbicide shall have an approved dye for inspection purposes and shall be applied within fifteen (15) minutes after cutting.

††††† (4) The work performed pursuant to a view permit shall include proper disposal of waste and debris related to vegetation management within fourteen (14) calendar days from the first cutting activity.

††††† (5) Work shall not be performed on right-of-way until an approved view permit is received from the department.

††††† (6)(a) Removal and pruning of vegetation under a view permit shall be supervised by a certified arborist.

††††† (b) The certified arborist shall notify the department that the work has been completed and certify that the work was performed according to the view permit.

††††† (c) The department shall review the work and notify the view permit holder if corrective work is necessary.

††††† (d) Two (2) years after the work has been completed, the permittee shall submit to the department a certified report completed by a certified arborist that includes a minimum of six (6) color photographs from different vantage points that demonstrate the entire group of trees within the sign viewing zone are healthy.

 

††††† Section 3. Notice of Violation; Appeals. (1) The department shall notify the view permit holder by certified letter if it determines a violation of KRS Chapter 177 or this administrative regulation has occurred.

††††† (2) The view permit holder shall have thirty (30) days to respond to the violations outlined in the departmentís notice.

††††† (3) If the view permit holder fails to respond to the certified notice or fails to remedy the violations within thirty (30) days, the department may proceed to take legal action against the permit holder.

††††† (4)(a) A view permit holder aggrieved by the findings of the department may request an administrative hearing in writing within twenty (20) days of the notice.

††††† (b) A request for a hearing shall thoroughly detail the grounds on which the hearing is requested.

††††† (c) The hearing request shall be addressed to the Transportation Cabinet, Office of Legal Services, 200 Mero Street, Frankfort, Kentucky 40622. The administrative hearing shall be conducted pursuant to KRS Chapter 13B.

 

††††† Section 4. Penalties. (1) A view permit holder who willfully violates this administrative regulation shall be fined $500 per inch of diameter of each tree in accordance with KRS 177.990(2).

††††† (2) The department shall deny or revoke a view permit that contains false or materially misleading information.

††††† (3) Work performed by the certified arborist found to be inaccurate or misleading shall be grounds for the arboristís removal from the departmentís prequalified list.

††††† (4) Vegetation removal performed for an advertising device without a view permit or work performed that is a material deviation from the view permit shall be grounds for:

††††† (a) Denial of a future vegetation permit application by the view permit holder for up to fifteen (15) years; and

††††† (b) Revocation of the advertising device permit upon which the vegetation removal was performed.

††††† (5) If a tree dies within two (2) years of being pruned pursuant to a view permit, the permittee shall:

††††† (a) Be fined in accordance with subsection (1) of this section;

††††† (b) Repay the cabinet for the state-owned tree; and

††††† (c) Replant the area to the satisfaction of the cabinet.

††††† (6) If tree abuse, death, or a violation occurs to trees not included in the view permit, the view permit holder shall be fined in accordance with subsection (1) of this section and shall be required to replant the area to the satisfaction of the department or, at the discretion of the department, replant another area.

††††† (7) The permittee shall be solely responsible for damage or destruction to private property that occurs in the course of executing the vegetation management plan.

††††† (8) The permittee shall agree to indemnify the department and the cabinet in the event that claims are brought against it by third parties for damages sustained in the course of executing the vegetation management plan.

 

††††† Section 5. Incorporation by Reference. (1) The following material is incorporated by reference:

††††† (a) "Application for Outdoor Advertising Device View Permit", TC 99-208, January, 2014; and

††††† (b) "Standard Specifications for Road and Bridge Construction", June 15, 2012.

††††† (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Transportation Cabinet, Department of Highways, 200 Mero Street, Frankfort, Kentucky 40622.

††††† (3) This material is also available on the cabinet's Web site at http://transportation.ky.gov/Construction/Pages/Kentucky-Standard-Specifications.aspx.

 

NANCY ALBRIGHT, Deputy State Highway Engineer

MIKE HANCOCK, Secretary

††††† APPROVED BY AGENCY: April 14, 2014

††††† FILED WITH LRC: April 15, 2014 at 10 a.m.

††††† CONTACT PERSON: D. Ann DAngelo, Asst. General Counsel, Transportation Cabinet, Office of Legal Services, 200 Mero Street, Frankfort, Kentucky 40622, phone (502) 564-7650, fax (502) 564-5238.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Ann DAngelo

††††† (1) Provide a brief summary of:

††††† (a) What this administrative regulation does: This new administrative regulation establishes requirements for the owner of a permitted advertising device to apply for and obtain a permit to selectively remove vegetation to improve the viewing of the advertising device.

††††† (b) The necessity of this administrative regulation: This regulation is necessary to control the removal of vegetation in and around Kentuckyís interstates, parkways, NHS and FAP highways.

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 177.860 requires the Cabinet to promulgate reasonable standards for the erection and maintenance of advertising devices.

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will specify the requirements for obtaining a view permit for existing advertising devices.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of: This is a new administrative regulation.

††††† (a) How the amendment will change this existing administrative regulation: N/A

††††† (b) The necessity of the amendment to this administrative regulation: N/A

††††† (c) How the amendment conforms to the content of the authorizing statutes: N/A

††††† (d) How the amendment will assist in the effective administration of the statutes: N/A

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation affects persons wishing to selectively prune existing vegetation to permit a better view of an advertising device.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: The owner of an advertising device will have to apply for and obtain a view permit application prior selectively removing or pruning trees.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): There are no fees involved with this administrative regulation.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): These requirements will permit the owners of advertising devices to selectively remove some vegetation that obstructs the travelling publicís view of the device.

††††† (5) Provide an estimate of how much it will cost the administrative body to implement the administrative regulation:

††††† (a) Initially: Approximately $345,000

††††† (b) On a continuing basis: Approximately $345,000

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: No funding is required.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: There is no need for the cabinet to increase fees or funding.

††††† (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: No fees are established by this regulation either directly or indirectly.

††††† (9) TIERING: Is tiering applied? No. Tiering is not applied. All advertising device owners who wish to apply for a view permit must do so.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† 1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This administrative regulation impacts the Cabinetís Department of Highways, Division of Maintenance.

††††† 2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 176.860 and 23 U.S.C. 131.

††††† 3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. There will not be any effect on the expenditures of a state or local agency.

††††† (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This administrative regulation will not generate additional revenue.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This administrative regulation will not generate additional revenue.

††††† (c) How much will it cost to administer this program for the first year? Approximately $345,000.

††††† (d) How much will it cost to administer this program for subsequent years? Approximately $345,000.

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+-):

††††† Expenditures (+-):

††††† Other Explanation: