Public hearing scheduled in Asheville on DOT billboard rules

The N.C. Department of Transportation has scheduled a public hearing in Asheville for Monday, August 13, to take comments on proposed permanent rules for vegetation removal at permitted outdoor advertising locations within highway rights of way.

The rules are the result of legislation passed in the 2011 session of the N.C. General Assembly (S.L. 2011-397), allowing a significant increase in the cutting zones around billboards and including permission to clear-cut areas previously protected (see “Perfectly Clear,” Xpress, February 23).

At the Asheville hearing, DOT representatives will give a formal presentation and then be available for questions or comments about the proposed rules. Members of the public may also submit written comments or questions.

According to the DOT press release (see text below), the agency is proposing the rules to comply with the new legislation, “as well as to update procedural aspects of the selective vegetation removal permitting program, including vegetation removal at business facilities.” The latter provision has been challenged in comments presented on behalf of the environmental nonprofit group Scenic North Carolina by Ryke Longest, director of the Duke Environmental Law & Policy Clinic.

In a July 27 letter to DOT policy administrator Helen Landi (see text below), Longest noted that the original legislation was enacted to “expand the cut zones in front of billboards, outdoor advertising structures, but not for on-premises signage. See N.C. Gen. Stat. § 136-93(b). ‘These provisions shall not be used to provide visibility to on-premises signs.’”

Among a number of other exceptions to the proposed rules, Scenic North Carolina’s letter takes issue with the fiscal note compiled for the rules, and the effect of the rules on local communities – declaring them to be “clearly negative in the loss of buffers to neighborhoods and in scenic beauty.”

The Asheville hearing will take place from 7 to 9 p.m. at the city’s Public Works Building, 161 South Charlotte Street, Room A-109. Participants are asked to arrive 30 minutes early to sign in. The first public hearing on the permanent rules was held in Raleigh on August 1. Following the Asheville hearing, a third meeting will take place on August 20 in Winterville. The comment period ends September 14. To submit written or oral comments, see instructions below.

by Nelda Holder, contributing editor

Instructions for submitting written or oral comments
Written comments may be mailed to APA Coordinator, 1501 Mail Service Center, Raleigh, NC 27699-1501, or faxed to 919-733-9150. Oral comments may be submitted by calling 919-733-9150. Comments may also be submitted by email at https://apps.dot.state.nc.us/ContactUS/PostComment.aspx?Unit=Rules. All comments are due by September 14, 2012.

Text of NCDOT press release

(July 21, 2012)

RALEIGH — The N.C. Department of Transportation will hold a public hearing Monday, Aug. 13, from 7 to 9 p.m. in Asheville on proposed permanent rules pertaining to selective vegetation removal at validly-permitted outdoor advertising locations within highway rights of way.

The meeting will take place at the City of Asheville Public Works Building, located at 161 South Charlotte Street, Room A-109. Participants are asked to arrive 30 minutes early to allow ample time to sign in so meeting can begin promptly.

NCDOT representatives will give a formal presentation and be available to answer questions and listen to comments about the proposed rules. Citizens can also submit written comments and/or questions.

NCDOT is proposing the rules to comply with legislative changes related to outdoor advertising (S.L. 2011-397), as well as to update procedural aspects of the selective vegetation removal permitting program, including vegetation removal at business facilities. The rules also include provisions for working in state maintained rights of way and replanting criteria for mitigation projects. 

An additional public hearing on the proposed rules will be held in Winterville on Aug. 20.

The rules are available for review on the NCDOT website.

For more information, contact Jamille Robbins of the NCDOT-Human Environment Section at (919) 707-6085 or jarobbins@ncdot.gov.

NCDOT will provide auxiliary aids and services under the Americans with Disabilities Act for disabled persons who want to participate in this workshop. Anyone requiring special services should contact Robbins as early as possible so that arrangements can be made.

Text of initial comments from Ryke Longest for Scenic North Carolina

(July 27, 2012)

Helen Landi
1501 Mail Service Center,
Raleigh NC 27699-1501
By Fax 919-733-9150

Re: First Set of Comments on Draft Permanent Billboard Permit Rules
submitted on behalf of Scenic North Carolina

Dear Helen:
Before describing some of the issues which we see with the draft permanent rules,
we have a problem with the three public hearing locations chosen. Regrettably, Charlotte
has been left out of the locations for public hearings. There are more than 8,000 permits
statewide. Pitt County has only 102 while Mecklenburg County has 309. Residents in
Mecklenburg will have to travel more than 120 miles and up the mountains to attend any
public hearing. The Pitt County location is also only 80 miles east of the Wake County
location while it is more than 120 miles from the beach destinations around Wilmington.
New Hanover County has a similar number of billboard permits to Wake and Pitt County,
but residents from there would have to drive more than two hours to attend either of these
scheduled hearings. In addition, Mecklenburg and Forsyth Counties have large billboard
numbers and local residents interested in protecting their natural resources. Since these
counties are less than 80 miles apart, we would request that you add a public hearing in
one location, and it makes the most sense to have that hearing in Charlotte. Since we
cannot eliminate a public hearing in Pitt County, we request that a Public Hearing be
added for Wilmington and another one for Charlotte during September.

The Administrative Procedure Act (“APA” hereafter) applies to the proposed
rules changes. Under the APA, all rulemaking actions, including amendment and repeal
of existing rules is subject to the requirements of the APA. The General Assembly added
a new section to the APA that sets standards generally applicable to all rulemaking
activities of any agency. See 2011 N.C. Sess. Law 398, Section 2 adding a new section
codified at N.C. Gen. Stat. § 150B-19.1. This new section reads as follows, in pertinent
part:

“(a) In developing and drafting rules for adoption in accordance with this Article,
agencies shall adhere to the following principles:
…
(5) When appropriate, rules shall be based on sound, reasonably available
scientific, technical, economic, and other relevant information. Agencies shall
include a reference to this information in the notice of text required by G.S. 150B-
21.2(c).
(6) Rules shall be designed to achieve the regulatory objective in a costeffective
and timely manner.
See N.C. Gen. Stat. § 150B-19.1 (2011) (Emphasis Added)

The rules as proposed appear to violate the areas in bold above within their text as
per sections (a)(5) and (a)(6) above. Nothing in the rules I have seen so far meets those
standards. The Draft Permanent Rules violate N.C. Gen. Stat. § 150B-19.1 (a)(5)
because they are not accompanied by any scientific, economic or technical information to
justify the proposals. The Draft Permanent Rules violate N.C. Gen. Stat. § 150B-19.1
(a)(6) because they do not achieve the regulatory objective in a cost- effective manner.
Specifically, the rules package’s Fiscal Note is completely inadequate to support the
Draft Permanent Rules. See N.C. Gen. Stat. § 150B-21.4.

The General Assembly enacted N.C. Session Law 2011-397 to expand the cut
zones in front of billboards, outdoor advertising structures, but not for on-premises
signage. See N.C. Gen. Stat. § 136-93(b). “These provisions shall not be used to provide
visibility to on-premises signs.” The draft rules ignore this directive’s plain language.
This prohibition should be carried forward in the proposed temporary rules, but was not.
There is no basis in the statute to expand cutting zones in front of on-premises signage at
businesses.

The Fiscal Note did not quantify how certain values were calculated. For
example, the Cost Benefit Summary was calculated to have zero effect on Local
Government and the Private Sector. The draft report did not detail how this observation
was determined, though it did note that local governments, and the private sector will
experience significant costs from these results. Further, N.C. Gen. Stat. § 150 B-1 21.4(b)
explicitly states that the “Fiscal note must state the amount by which the proposed rule
would increase or decrease expenditures or revenues of a unit of local government and
must explain how the amount was computed.” The Fiscal Note does not comply with
this section of the statute for any of the values identified as zero.

The need to quantify this statistical data is also noted in the APA as applied to any
rule with the Substantial Economic Impact. This term refers to any aggregate financial
impact on all persons affected of at least five hundred thousand dollars ($500,000). See
N.C. Gen. Stat. § 150 B-1 21.4 (b1). The Fiscal Note fails to adequately quantify the
costs as required by all rules with Substantial Economic Impact. See N.C. Gen. Stat. §
150 B-1 21.4 (b1) (4). This section details that the “analysis should include direct costs
as well as opportunity costs … [and] cost estimates must be monetized to the
greatest extent possible.” The Fiscal Note has not done this.

Perhaps it does not meet the standard because an explanation of its conclusions
cannot be made. Common sense contradicts the fiscal note’s conclusions that there are
zero benefits to the regulated industry associated with the rules. If the industry derived
no benefit, why did they demand the changes? Likewise, the benefits to local
government are clearly negative in the loss of buffers to neighborhoods and in scenic
beauty. The Fiscal Note also seriously underestimates the value of trees lost and the
increased maintenance requirements that these rules will impose on all the rest of us.
Every person knows that maintaining a lawn is more expensive than maintaining a forest.
The extra mowing expense needs to be quantified here. As it stands the Fiscal Note does
not meet the standard set by the APA.

Municipal Corporations are persons under the provisions of the APA as are
private business corporations. Municipal corporations are entitled to the same rights
under the APA as corporations. N.C. Gen. Stat. § 136-93(d) provides that local
governments which notify NCDOT they wish to review applications must be given 30
days to review each application. We support the approach taken in the permanent rules to
require this review before the NCDOT begins reviewing the applications. This review is
necessary for municipalities to exercise their duties to protect their residents from harms
caused by tree-cutting. For example, the permit issued for tree cutting along I-77 in
Charlotte adjacent to Irwin Creek included tree cuts in the City’s stormwater buffer. We
will be investigating the environmental violations associated with this permit and
reporting more on it in later comments at future public hearings. Thank you for your hard
work on behalf of all citizens of this State. Please call me at (919) 613-7207 or email me
at longest@law.duke.edu if any clarification of these comments is necessary.

Sincerely,
Ryke Longest
Director
Duke Environmental Law & Policy Clinic
Box 90360
Durham, NC 27708-0360
(919) 613-7207

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