May 25, 2011, Introduced by Reps. Yonker, Heise, Santana, Pscholka, Dillon, Hobbs, Hughes, Jenkins, Lori, Hooker, Johnson, Zorn, Rendon, Lindberg, Roy Schmidt, Olumba, Potvin, Daley and Liss and referred to the Committee on Transportation.
A bill to amend 1972 PA 106, entitled
"Highway advertising act of 1972,"
by amending section 11a (MCL 252.311a), as amended by 2009 PA 86.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 11a. (1) Subject to the requirements of this section, the
department is authorized to and shall issue permits for the
management of vegetation to the owner of a sign subject to this
act.
(2) A sign owner may apply to the department for a permit to
manage vegetation using the department's approved form. The
application shall be accompanied by an application fee of $150.00
to cover the costs of evaluating and processing the application.
The application shall be submitted during the 2 or more annual
application periods not less than 60 days each, as specified by the
department. The application shall clearly identify the vegetation
to be managed in order to create visibility of the sign within the
billboard viewing zone and all proposed mitigation for the impacts
of the vegetation management undertaken. The application shall also
include anticipated management that will be needed in the future to
maintain the visibility of the sign within the billboard viewing
zone for the time specified in subsection (4) and procedures for
clearing vegetation as determined by the department.
(3) Unless otherwise agreed to by the department and an
applicant, the department shall issue its decision on an
application no later than 30 days after the last day of the
application period. The department shall approve the application,
approve the application with modification, or deny the application.
If the department approves the application or approves the
application with modification, it shall notify the applicant and
the notification shall include the value of the vegetation to be
managed as determined by the department using the most recent
version of the international society of arboriculture's guide for
plant appraisal and the corresponding Michigan tree evaluation
supplement to the guide for plant appraisal published by the
Michigan forestry and park association. The department may use
another objective authoritative guide in consultation with
representatives of the outdoor advertising industry and other
interested parties, if either the guide or the supplement has not
been updated for more than 5 years. The department, in consultation
with representatives of the outdoor advertising industry and other
interested parties, may develop a value schedule for vegetation. If
agreed to by both the department and the applicant, this value
schedule shall be used to determine the value of the vegetation to
be managed. The notification to the applicant shall also include
any required mitigation for the vegetation to be managed and all
conditions and requirements associated with the issuance of the
permit. The permit fee shall be $300.00, except that in special and
unique situations and circumstances where the department incurs
additional costs directly attributable to the approval of the
permit, a fee greater than $300.00 adequate for the recovery of
additional costs may be assessed. Upon receipt of the permit fee,
payment for the value of the vegetation, and compliance with MDOT
conditions and requirements, the department shall issue the permit.
(4) Subject to the provisions of this subsection, a permit to
manage vegetation shall provide for a minimum of 5 seconds of
continuous, clear, and unobstructed view of the billboard face
based on travel at the posted speed as measured from the point
directly adjacent to the point of the billboard closest to the
highway. The department and the applicant may enter into an
agreement, at the request of the applicant, identifying the
specific location of the continuous, clear, and unobstructed view
within the billboard viewing zone. The specific location may begin
at a point anywhere within the billboard viewing zone but shall
result in a continuous, clear, and unobstructed view of not less
than 5 seconds. An applicant shall apply for a permit that
minimizes the amount of vegetation to be managed for the amount of
viewing time requested. Applications for vegetation management that
provide for greater than 5 seconds of continuous, clear, and
unobstructed viewing at the posted speed as measured from a point
directly adjacent to the point of the billboard closest to the
highway shall not be rejected based solely upon the application
exceeding the 5-second minimum. For billboards spaced less than 500
feet apart, vegetation management, when permitted, shall provide
for a minimum of 5 seconds of continuous, clear, and unobstructed
view of the billboard face based on travel at the posted speed or
the distance between the billboard and the adjacent billboard,
whichever is less.
(5) The department shall issue permits for vegetation
management in a viewing cone or, at the department's discretion,
another shape that provides for the continuous, clear, and
unobstructed view of the billboard face. The department may, in its
discretion, issue a permit for vegetation management outside of the
billboard viewing zone.
(6) If no suitable alternative exists or the applicant is
unable to provide acceptable mitigation, the department may deny an
application or provide a limited permit to manage vegetation when
it can be demonstrated that 1 or more of the following situations
exist:
(a) The vegetation management would have an adverse impact on
safety.
(b) The vegetation management would have an adverse impact on
operations of the state trunk line highway.
(c) The vegetation management conflicts with federal or state
law, rules, or statutory requirements.
(d) The applicant does not have the approval of the owner of
the property.
(e) The vegetation to be managed was planted or permitted to
be planted by the department for a specific purpose.
(f) Vegetation would be managed for a newly constructed
billboard or vegetation existed that obscured the billboard or
would have obscured the billboard before it was constructed, unless
the billboard is in a zone that is designated as commercial or
industrial. In denying an application or providing a limited
permit, the department shall consider previous vegetation
management that was allowed at the billboard site.
(g) The management would occur on a scenic or heritage route
that was designated on or before the effective date of the
amendatory act that added this section.
(h) The application is for a sign that has been found, after a
hearing in accordance with section 19, not to be in compliance with
this act.
(i) Other special or unique circumstances or conditions exist,
including, but not limited to, adverse impact on the environment,
natural features, or adjacent property owners.
(7) If the department denies an application or issues a
limited permit under this subsection, the department shall provide
a specific rationale for denying an application or approving a
limited permit.
(8) No later than 30 days after receiving a denial or a
limited permit under subsection (6), an applicant may request the
review and reconsideration of the denial or limited permit. The
applicant shall submit its request in writing on a form as
determined by the department. The applicant shall state the
specific item or items for which review and reconsideration are
being requested. An applicant who received a limited permit may
manage vegetation in accordance with that permit during the review
and reconsideration period.
(9) No later than 90 days after January 1, 2007, the
department shall develop a procedure for review and reconsideration
of applications that are denied or that result in the issuance of a
limited permit. This procedure shall include at least 2 levels of
review and provide for input from the applicant. The review period
shall not exceed 120 days. The department shall consult with all
affected and interested parties, including, but not limited to,
representatives of the outdoor advertising industry, in the
development of this procedure.
(10) If, after review and reconsideration as provided for in
subsection (8), the applicant is denied a permit or issued a
limited permit, the applicant may appeal the decision of the
department to a court of competent jurisdiction.
(11) All work performed in connection with trimming, removing,
or relocating vegetation shall be performed at the sign owner's
expense.
(12) The department shall not plant or authorize to be planted
any vegetation that obstructs, or through expected normal growth
will obstruct in the future, the visibility within the billboard
viewing zone of any portion of a sign face subject to this act.
(13) The department shall prepare an annual report for
submission to the legislature regarding the vegetation management
undertaken pursuant to this section. At a minimum, this report
shall include all of the following items:
(a) The number of application periods.
(b) The number of applications submitted under this section.
(c) The number of permits approved without modifications.
(d) The number of permits approved with modifications.
(e) The number of permits denied.
(f) The number of modified or denied permits which were
appealed.
(g) The number of appeals that reversed the department's
decision.
(h) The number of appeals that upheld the department's
decision.
(i) The number of permits approved which requested a
visibility time period exceeding 5 seconds.
(j) The amount of compensation paid to the state for removed
vegetation.
(k) The average number of days after the end of the
application period before an applicant was sent notice that a
permit was approved.
(l) A summary of the reasons for which the department denied or
modified permits.
(m) A summary of the amount of all revenues and expenses
associated with the management of the vegetation program.
(14) The report in subsection (13) shall contain a summary for
the entire state and report in detail for each department region.
The department shall provide the report to the legislature for
review no later than 90 days following the completion of each
fiscal
year. The reporting deadline for the initial report is 18
months
after January 1, 2007.
(15) A person who under the authority of a permit obtained
under this section trims or removes more trees and shrubs than the
permit authorizes is subject to 1 or more of the following
penalties:
(a) For the first 3 violations during a 3-year period, a
penalty of an amount up to $5,000.00 or the amount authorized as a
penalty in section 11(1), whichever is greater.
(b) For the fourth violation during a 3-year period and any
additional violation during that period, a penalty of an amount up
to $25,000.00 or double the amount authorized as a penalty in
section 11(1), whichever is greater, for each violation.
(c) For the fourth violation during a 3-year period, and any
additional violation, a person is not eligible to obtain or renew a
permit under this section for a period of 3 years from the date of
the fourth violation.
(16) If the department alleges that a person has trimmed or
removed more trees or shrubs than the permit authorizes, then the
department shall notify the person of its intent to seek any 1 or
more of the penalties provided in subsection (15). The notification
shall be in writing and delivered via United States certified mail,
and shall detail the conduct the department alleges constitutes a
violation of subsection (15), shall indicate what penalties the
department will be seeking under subsection (15), and shall occur
within 30 days of the filing of the completion order for the
trimming or removal of trees or shrubs the department alleges
violated the permit. Any allegation by the department that a person
has trimmed or removed more trees or shrubs than the permit
authorizes
shall be is subject to the appeals process contained in
subsections (8), (9), and (10).
(17) As used in this act:
(a) "Billboard viewing zone" means the 1,000-foot area
measured at the pavement edge of the main-traveled way closest to
the billboard having as its terminus the point of the right-of-way
line immediately adjacent to the billboard.
(b) "Vegetation management" means the trimming, removal, or
relocation of trees, shrubs, or other plant material.
(c) "Viewing cone" means the triangular area described as the
point directly below the face of the billboard closest to the
roadway, the point directly below the billboard face farthest away
from the roadway, a point as measured from a point directly
adjacent to the part of the billboard closest to the roadway and
extending back parallel to the roadway the distance that provides
the view of the billboard prescribed in this section, and the
triangle described by the points extending upward to the top of the
billboard.