Bill Text: GA SB164 | 2009-2010 | Regular Session | Engrossed

Georgia Senate Bill 164 (Prior Session Legislation)

Bill Title: State Highway System; signs and signals; height limitations; allow owners to obtain permits to remove vegetation from the viewing zones

Spectrum: Slight Partisan Bill (Republican 4-2)

Status: (Engrossed - Dead) 2009-04-03 - House Withdrawn, Recommitted [SB164 Detail]

Download: Georgia-2009-SB164-Engrossed.html

09 SB164/CSFA/2

Senate Bill 164

By: Senators Balfour of the 9th, Tarver of the 22nd, Mullis of the 53rd, Stoner of the 6th, Williams of the 19th and others

AS PASSED SENATE

A BILL TO BE ENTITLED
AN ACT

To amend Part 2 of Article 3 of Chapter 6 of Title 32 of the Official Code of Georgia Annotated, relating to the control of signs and signals on the state highway system, so as to provide for certain height limitations on such signs; to allow owners of legally erected and maintained signs to obtain permits to remove vegetation from the viewing zones of their signs if certain specified conditions are met; to provide for procedures, fees, and penalties related to the foregoing; to provide for stages of implementation by department districts; to provide for severability; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Part 2 of Article 3 of Chapter 6 of Title 32 of the Official Code of Georgia Annotated, relating to the control of signs and signals on the state highway system, is amended in Code Section 32-6-75, relating to restrictions on outdoor advertising signs authorized by Code Sections 32-6-72 and 32-6-73, by striking "or" at the end of paragraph (20) of subsection (a), by striking the period at the end of paragraph (21) of subsection (a) and inserting in lieu thereof a semicolon, and by adding at the end of subsection (a) two new paragraphs to read as follows:

"(22) After July 1, 2009, exceeds 75 feet in height as measured from the base of the sign or the crown of the adjacent roadway to which the sign is permitted, whichever is higher. Preexisting signs in excess of 75 feet in height shall not be deemed nonconforming by reason of their height; or

(23) After July 1, 2009, is erected without the sign owner providing, on or before 30 days after the completion of construction, one copy of the structural drawings of the sign structure stamped and signed by a registered professional engineer licensed in the State of Georgia to the department for its records."

SECTION 2.

Said part is further amended in Code Section 32-6-75.3, relating to applications for tree trimming permits and annual renewals and criteria for trimming trees or vegetation, by revising subsection (b) and paragraph (1) and subparagraph (A) of paragraph (2) of subsection (e), as follows:

"(b)(1) So as to promote these objectives and in accordance with the provisions of this Code section, the commissioner shall provide by rule or regulation for the issuance and annual renewal of permits for the trimming and removal of trees and other vegetation on the state rights of way within viewing zones with respect to outdoor advertising signs legally erected and legally maintained adjacent to said rights of way. Such rules and regulations shall include, without limitation, standards for survival of vegetation trimmed or planted.

(2) So as to ensure that no vegetation maintenance permits are issued for the purpose of creating new outdoor advertising signs, no owner of outdoor advertising signs erected after January 1, 1999, or such owner's agent, will be eligible to make application for vegetation maintenance for a period of five years from the date a new sign is permitted."

"(e)(1) The department shall evaluate each application for a permit under this Code section and require as a condition of granting any permit under this Code section that the value of the landscaping to be either provided or paid for by the applicant is not less than the department's appraised value of the benefit to be conferred by the state upon the applicant by allowing the trimming or removing of trees or other vegetation as requested, which shall be the value of the trees or vegetation to be trimmed or removed; provided, however, that a permit may be granted to an otherwise qualified applicant in a case where the value of the landscaping to be either provided or paid for by the applicant is less than the department's appraised value of the trees or other vegetation to be trimmed or removed if, in addition, the applicant pays to the department an amount equal to the amount of the difference between the value of the landscaping to be either provided or paid for by the applicant and the department's appraised value of the trees or other vegetation to be trimmed or removed outdoor advertising permit holder submit a vegetation fee of $4,000.00, minus the costs associated with acquiring, installing, and maintaining the replacement landscaping as submitted by the outdoor advertising permit holder and approved by the department, which shall be deposited in the Roadside Enhancement and Beautification Fund for grants approved by the Roadside Enhancement and Beautification Council for roadside beautification projects. Such funds shall not be used to plant vegetation that will block or diminish motorists' view of outdoor advertising signs.

(2)(A)(i) No trees or vegetation shall be trimmed or removed under this Code section other than within a viewing zone.

(ii) No removal of any hardwood tree having a diameter outside bark of more than 8 inches at a height of 6 inches above ground level or any historic or endangered species tree or any tree planted as part of any local, state, or federal government project shall be permitted under this Code section.

(iii) All hardwood trees having a diameter outside bark of 8 inches or less at a height of 6 inches above ground level may be removed from within a viewing zone.

(iv) All nonhardwood trees may be removed from within a viewing zone for a combined total of 250 feet horizontal distance parallel to the right of way.

(v) All nonhardwood trees having a diameter outside bark of less than 12 inches at a height of 6 inches above ground level may be removed from within a viewing zone.

(vi) Pine trees having a diameter outside bark of 12 inches or more at a height of 6 inches above ground level shall not be removed from a viewing zone in such numbers as to reduce stocking to less than the minimum standard for full stocking for such trees, as determined by the Georgia Forestry Commission, over an area having a combined total of not less than 250 feet horizontal distance parallel to the right of way.

(vii) The provisions of divisions (iv) and (vi) of this subparagraph notwithstanding, in the case of any outdoor advertising sign erected on or before April 20, 1998, and which is less than 35 feet in height as measured from the top of the sign to the ground directly beneath or to the road level, whichever distance results in the best view or the greatest elevation, or which is subsequently lowered to such a height, the horizontal distance of the area within the viewing zone from which all trees, other than hardwoods having a diameter outside the bark of more than 8 inches at a height of 6 inches above ground level, may be removed shall be increased to 350 feet."

SECTION 3.

Said part is further amended by adding a new Code section to read as follows:

"32-6-75.4.

(a) As used in this Code section, the term:

(1) 'Abandoned sign' means any sign adjacent to a state-controlled route that is not structurally safe and in good repair or which has not contained a message for nine consecutive months and which has not had a message displayed within 30 days after receipt of notice by certified mail from the department. The addition of a 'for rent' panel or a phone number does not qualify as a 'message' for purposes of this Code section, but self-promotional advertisements by the sign owner and advertising copy benefitting charitable, nonprofit, religious, or other noncommercial groups shall qualify.

(2) 'Beautification plan' means an agreement between the department and the outdoor advertising permit holder describing the replacement landscaping which will be installed at the work site by the permit holder, listing the type or types of trees to be planted, the size of such plantings, and the numbers of each tree type.

(3) 'Removal' or 'removed' means the elimination of trees or other vegetation from a viewing zone.

(4) 'Replacement landscaping' means department approved vegetation that is purchased and then planted and maintained in the area of the right of way where vegetation which has been removed pursuant to a vegetation permit previously existed.

(5) 'Self-promotional advertisement' means an advertisement covering substantially all of at least one advertising surface of a sign and including more than simply a phone number. Copy covering only a fraction of the surface of a sign, or copy including only a phone number, shall not be a self-promotional advertisement.

(6) 'Viewing zone' means a conical area extending from the base of the sign to the roadway which shall not exceed:

(A) Two hundred seventy-five feet in width at the point of the right of way fence or boundary; and

(B) Five hundred feet in width along the edge of the roadway pavement.

To any extent such definition differs from Code Section 32-6-75.3(C), this definition shall govern.

(7) 'Work site' means the specific section of the right of way between the beginning and end point of the approved location where vegetation removal shall be performed.

(b) In accordance with the provisions of this Code section, the department shall issue a permit for the removal of vegetation located on the right of way of any controlled highway system adjacent to a sign which was legally erected under a department permit prior to July 1, 2009, whenever such vegetation prevents a viewing zone to the sign from the main traveled way of such highway.

(1) No vegetation shall be removed under this Code section other than that which lies within a viewing zone. The conditions of vegetation removal pursuant to this Code section shall in no way be limited pursuant to limitations found in Code Section 32-6-75.3.

(2) No more vegetation shall be removed pursuant to a vegetation permit than is necessary to ensure that a sign has a viewing zone. Any remaining vegetation in the viewing zone shall not be removed. The outdoor advertising permit holder shall be able to remove vegetation within the original scope of the permit without the need for future applications when an annual renewal fee of $50.00 has been waived by the department or consistently paid for all years after the original permit date.

(3) No vegetation along the right of way of a highway shall be removed by any nondepartment personnel other than in accordance with a permit issued under this Code section.

(4) In order to obtain a vegetation permit for signs which exceed 75 feet in height, as measured from the base of the sign or crown of the adjacent roadway to which the sign is permitted, whichever is higher, the owner of the sign must agree to reduce the sign to 75 feet in height or less within 30 days of removing vegetation in accordance with a vegetation permit. The department shall have the authority to revoke the sign permit of any permit holder who does not lower the sign within 30 days of removing the vegetation. Signs which exceed 75 feet in height, as measured from the base of the sign or crown of the adjacent roadway to which the sign is permitted, whichever is higher, that are not reduced in height within such time frame shall be subject to the penalties outlined in this Code section, and the performance bond shall be forfeit. Lowering a sign pursuant to this paragraph shall be permitted irrespective of otherwise applicable ordinances or regulations. Upon completion of any project which reduces sign height by use of a new support mechanism, such as a new pole, the sign owner shall provide the department a written footer inspection from the applicable local or county or a licensed engineer.

(5) The department shall have the right to refuse to issue any vegetation permits to any person, firm, or entity which the department determines is maintaining or is allowing to be maintained any abandoned signs, until such abandoned signs are removed or brought into compliance with this part.

(6) No permit holder shall have in their inventory of signs in Georgia any sign which depicts sexually suggestive imagery, obscene material, as that term is defined in Code Section 16-12-80, or material that is in direct conflict with the local jurisdiction's obscenity ordinance.

(7) No removal of any landmark, historic, or specimen tree species shall be permitted under this Code section. For purposes of this paragraph, the term:

(A) 'Landmark tree' means a tree or group of trees that:

(i) Were planted and maintained for educational purposes for more than 75 years;

(ii) Were planted as a memorial to an individual, group, event, or cause and are more than 75 years old; or

(iii) Symbolize a historically significant individual, place, event, or contribution, as recognized by a unit of local government.

(B) 'Historic tree' means a tree or group of trees that are reasonably determined by the department to be:

(i) Identified by a unit of local government to recognize an individual or group;

(ii) Located at the site of a historic event and significantly impact an individual's perception of the event;

(iii) Dated to the time of a historic event at the location of the tree, as identified by a unit of local government; or

(iv) Confirmed as the progeny of a tree that meets any of the above criteria.

(C) 'Specimen tree' means a hardwood tree or group of hardwood trees that is determined to be in excess of 75 years of age as determined by a registered forester or arborist.

(8) No removal of any tree planted prior to January 1, 2009, as part of any local, state, or federal government or specifically identified beautification project shall be permitted under this Code section unless written approval is obtained from the sponsoring jurisdiction.

(9) When vegetation is removed and the department determines that no replacement landscaping shall be installed in the viewing zone, all root masses must remain intact in order to ensure there is no soil disturbance. All substantial deposits of saw dust and wood chip piles created from the removal of vegetation must be evenly distributed on the work site.

(10) The department shall deny a vegetation permit application to the extent:

(A) The application is for the opening of view to a sign which is illegal or is currently involved in litigation with the department;

(B) The vegetation was planted as a designated noise barrier, visual barrier, or to provide erosion control, in which case the application shall be approved only to allow cutting which will not remove such planted vegetation;

(C) The proposed removal would open views to a commercial junkyard for automotive vehicles, in which case the application shall be approved only to allow cutting which will not further expose the junkyard to motorists; or

(D) The work site is within 1,000 feet of a state-designated scenic area.

(11) Replacement landscaping:

(A) In exchange for permission to remove existing vegetation as outlined in this Code section, the outdoor advertising permit holder shall acquire, install, and maintain replacement landscaping and adhere to the policy set forth by the department in coordination with interested parties after the enactment of the program. The vegetation fee, as proscribed in paragraph (1) of subsection (e) of this Code section, shall be offset by the costs associated with such replacement landscaping. The department shall not provide any funds to the applicant if the applicant's replacement landscaping planting and maintenance costs exceed $4,000.00.

(B) The location of replacement landscaping replanting shall be in the area of the work site from the pavement of the traveled way to the right of way fence or boundary. Taller growing species of vegetation may be replaced with approved lower growing varieties within the limits of the work site.

(C) Replacement landscaping shall consist of the planting of trees from the list approved by the department. In coordination with interested parties, the department shall establish such a list on or before the effective date of this Code section and it shall be subject to revision from time to time. All replacement tree plantings must be installed during the months of September, October, or November. The department shall differentiate trees according to preferred geographic area of the state, if any, and maximum height at maturity. For the safety of wildlife and motorists, the department shall exclude from the approved list any trees that are known to attract deer. An approved replacement landscaping plan shall require the planting of trees in a ratio of twenty-two trees from the department's approved list for each site a vegetation permit is granted on the right of way. Tree species may only be approved to the extent their height at maturity will not obscure the clear viewing zone. All single-stemmed replacement trees shall be a minimum of six feet tall at the time of planting, and multi-stemmed vegetation shall be a minimum of three feet tall. If the department determines the applicant's site is not feasible for the default tree replanting plan, the department shall consider the acceptance of a wildflower planting equal to two times the cleared vegetation area, provided the minimal area of the wildflower garden is no smaller than an area of 5,000 square feet. The costs of the wildflower planting shall be paid for and maintained by the permit holder and installed during the appropriate planting seasons as determined by the department and in conjunction with any existing wildflower program for that area and should be located at the work site or at a more feasible area to the work site as determined by the department.

(D) The department prior to promulgation and in coordination with interested parties shall establish a policy regarding the installation and maintenance of all replacement landscaping to be installed by outdoor advertising permit holders.

(E) All replacement landscaping must be installed during the next full planting season. Outdoor advertising permit holders shall be responsible for erosion control methods as determined by the local Environmental Protection Division authority in cases where the vegetation program goes into effect after the full planting season has begun.

(F) The installation of replacement landscaping must follow federal, state, and local watering guidelines. If such guidelines make the installation of replacement landscaping unfeasible, then a vegetation permit shall still be issued, provided that the outdoor advertising permit holder submits the vegetation fee which shall be deposited in the Roadside Enhancement and Beautification Fund for roadside beautification projects. In any instance where the department issues a vegetation permit but determines that no replacement landscaping is required, it shall deliver as an element of the annual report to be made pursuant to subsection (h) of this Code section a written report describing the site and the reasons that replacement landscaping was deemed unfeasible. Replacement landscaping shall be required in all instances unless it is unfeasible due to geography, department-approved fixtures or paving, climatic conditions, or safety concerns.

(G) The department may determine that the work site is ineligible for replacement landscaping based on local standards, unique terrain, or public safety concerns. In such a case, a vegetation permit shall be issued, provided that the outdoor advertising permit holder submits the full vegetation fee which shall be deposited in the Roadside Enhancement and Beautification Fund for roadside beautification projects. Such funds shall not be used to plant vegetation that will block or diminish motorists' view of outdoor advertising signs.

(H) The outdoor advertising permit holder has a duty to maintain the replacement landscaping for two years from the last date of installation. If the outdoor advertising permit holder fails to maintain the replacement landscaping as provided for in this Code section, the performance bond outlined in subparagraph (d)(2)(G) of this Code section shall be forfeited. If the outdoor advertising permit holder renews the permit pursuant to paragraph (3) of subsection (d) of Code Section 32-6-75.4 for any period after two years, the permit holder shall be required to maintain the replacement landscaping during the renewal term.

(d) Permit application process and fees:

(1) A vegetation permit must be secured prior to performing any vegetation removal. The permit shall be effective for one year from the date of issuance. Any permitted work not completed during that year shall require the submission of a new application to complete.

(2) Permit applications for vegetation removal will be made by the outdoor advertising permit holder upon the forms prescribed and provided by the department and shall contain the signature of the outdoor advertising permit holder. A separate application must be submitted for each work site. The application must contain all required information before a permit will be granted. The following is a list of all required information that must be submitted with the application form:

(A) The name, address, telephone number, facsimile number, and e-mail address of the outdoor advertising permit holder;

(B) The name, phone number, and address of the property owner, if easily obtainable;

(D) A detailed site plan identifying at a minimum the following items:

(i) The requested limits of the work site for the proposed vegetation removal;

(ii) A detailed identification of the requested action, such as removal;

(iii) The proposed viewing zone;

(iv) The right of way line within the work site;

(v) The method by which work crews will access the right of way;

(vi) Proposed method for securing the site on a temporary basis;

(vii) The edge of pavement line within the work site;

(viii) A scale showing the actual distances indicated in the site plan; and

(ix) A table or key identifying vegetation or other icons indicated on the site plan;

(E) Photographic images of the sign and the existing vegetation at the work site;

(F) A certification that all work performed under the permit will be in accordance with the department's policy regarding replacement landscaping installed by the outdoor advertising permit holder; and

(G) An acknowledgment by the outdoor advertising permit holder that a performance bond in an amount adequate to ensure the completion of the installation and maintenance of the replacement landscaping and any required sign height reduction must be obtained prior to work beginning. After issuance of the vegetation permit but before any work begins, the original performance bond must be submitted to the department. Work performed without a bond in place shall violate this Code section and be subject to penalties as provided by this Code section. The performance bond shall be released upon final inspection and acceptance of the work by the department.

(3) An application fee in the amount of $500.00 shall accompany the application, and both the application and fee shall be submitted to the department. Proceeds from initial application fees shall be retained by the department for outdoor advertising regulatory purposes. There shall be an annual renewal fee of $50.00 if the outdoor advertising permit holder requests to remove vegetation within the original scope of the permit without the need for future applications. Renewal fees shall be deposited in the Roadside Enhancement and Beautification Fund for grants approved by the Roadside Enhancement and Beautification Council governments for roadside beautification. Such funds shall not be used to plant vegetation that will block or diminish motorists' view of outdoor advertising signs. Renewal fees shall be due for each calendar year following the issuance of the vegetation permit and will be due within 45 days of receipt of a renewal notice from the department.

(4) Within 60 days following receipt of the complete vegetation permit application, the department shall approve or deny the application. If the application is approved, the applicant shall be issued a permit. If the application is denied, the department shall advise the outdoor advertising permit holder, in writing, of the reasons for denial. If the department fails to approve or deny such application within 60 days of receipt, it shall be deemed approved.

(e) Vegetation fee:

(1) In accordance with subsection (e) of Code Section 32-6-75.3, the outdoor advertising permit holder shall submit a vegetation fee in an amount equal to $4,000.00 minus the costs associated with acquiring, installing, and maintaining the replacement landscaping which shall be submitted by the outdoor advertising permit holder and approved by the department. The costs and expenses associated with acquiring, installing, and maintaining replacement landscaping shall be described in the registered forester's or arborist's signed, written report submitted in conjunction with the application. No adjustment to the vegetation fee shall be made after the permit has been approved.

(2) All vegetation fees shall be deposited in the Roadside Enhancement and Beautification Fund for grants approved by the Roadside Enhancement and Beautification Council for roadside beautification projects. Such funds shall not be used to plant vegetation that will block or diminish motorists' view of outdoor advertising signs.

(f) Violations:

(1) Following notice, hearing, and a finding that a person has removed vegetation in a highway right of way for purposes of outdoor advertising in violation of this Code section, a civil fine of not less than $5,000.00 nor more than $10,000.00, and restitution in an amount equal to the appraised value of the unlawfully removed vegetation, shall be imposed on such person.

(2) The department or its authorized agents shall be authorized to enter upon private lands and disassemble and remove signs without civil or criminal liability therefor pursuant to an order issued in accordance with this paragraph and as provided by Code Section 32-6-96 for disassembly and removal of illegal outdoor advertising signs where such order has been upheld in any subsequent administrative or judicial appeals.

(g) Effective date:

(1) This Code section shall become effective on July 1, 2009, and shall be implemented as a three-year pilot program by department districts as follows:

(A) Year one, effective July 1, 2009: First, Second, and Sixth department districts;

(B) Year two, effective July 1, 2010: Third, Fifth, and Seventh department districts; and

(2) As of July 1, 2012, this Code section shall become applicable to all outdoor advertising signs lawfully permitted by the department wherever located unless otherwise determined by the General Assembly. Nothing contained in this Code section shall render any sign existing on July 1, 2009, nonconforming.

(h) The department shall promulgate any forms or policies necessary to implement the program provided for by this Code section within 120 days of the effective date of this Code section. Prior to December 31 of each calendar year, the department shall furnish to the members of the transportation committees of both chambers of the General Assembly and to the Roadside Beautification Enhancement and Beautification Council an annual report to include: (1) the number of vegetation permit applications received by the department; (2) the number of permits issued; (3) the number of permits issued in each department district; (4) the total amount of vegetation fees collected; (5) the total amount of grants issued by the Roadside Enhancement and Beautification Council; and (6) a statement to comply with the provisions of subparagraph (c)(11)(F) of this Code section."

SECTION 4.

In the event any section, subsection, sentence, clause, or phrase of this Act shall be declared or adjudged invalid or unconstitutional, such declaration or adjudication shall affect and invalidate the whole of the smallest section or subsection in which such matter appears herein, but shall in no manner affect the other sections, subsections, sentences, clauses, or phrases of this Act, which shall remain of full force and effect as if the section, subsection, sentence, clause, or phrase so declared or adjudged invalid or unconstitutional were not originally a part hereof. The General Assembly declares that it would have passed the remaining parts of this Act if it had known that such part or parts hereof would be declared or adjudged invalid or unconstitutional, but would not have passed any section of this Act containing or constituting an invalid or unconstitutional provision.

SECTION 5.

This Act shall become effective on July 1, 2009.

SECTION 6.

All laws and parts of laws in conflict with this Act are repealed.