Bill Text: MI HB5280 | 2011-2012 | 96th Legislature | Introduced

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Bill Title: Highways; signs; waiver to prohibition of cutting trees obstructing view of billboards located in commercial and industrial zones; provide for. Amends secs. 11 & 11a of 1972 PA 106 (MCL 252.311 & 252.311a).

Spectrum: Strong Partisan Bill (Republican 19-2)

Status: (Introduced - Dead) 2012-01-25 - Printed Bill Filed 01/25/2012 [HB5280 Detail]

Download: Michigan-2011-HB5280-Introduced.html

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HOUSE BILL No. 5280

 

January 24, 2012, Introduced by Reps. Yonker, Dillon, Hooker, Foster, Heise, Johnson, Daley, Haines, MacMaster, Outman, Somerville, MacGregor, Potvin, Lyons, Horn, O'Brien, Pscholka, Roy Schmidt, Callton, Haveman and Lori and referred to the Committee on Transportation.

 

     A bill to amend 1972 PA 106, entitled

 

"Highway advertising act of 1972,"

 

by amending sections 11 and 11a (MCL 252.311 and 252.311a), section

 

11 as amended by 2006 PA 448 and section 11a as amended by 2009 PA

 

86.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 11. (1) Except as otherwise provided in subsection (2), a

 

person who trims or removes trees or shrubs within a highway right-

 

of-way for the purpose of making a proposed or existing sign more

 

visible may be ordered to pay a penalty of up to 5 times the value

 

of the trees or shrubs trimmed or removed unless the person trimmed

 

or removed the trees or shrubs under the authority of a permit

 

issued under section 11a. The value of the removed trees or shrubs

 

shall be determined by the department in accordance with section

 

11a(3).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 managed. The department has the burden

 

of proof in any administrative proceeding brought for an alleged

 

violation of this subsection.

 

     (2) A person who removes trees or shrubs within a highway

 

right-of-way for the purpose of making a proposed or existing sign

 

more visible without first obtaining a permit under section 11a is

 

guilty of a felony misdemeanor punishable by imprisonment for not

 

more than 2 years 90 days or a fine of not more than $25,000.00,

 

$5,000.00, or both. If no criminal action pursuant to under this

 

section has been brought against the person within 1 year of the

 

removal of trees or shrubs without a permit, the department may

 

proceed to recover the penalty prescribed in subsection (1). If a

 

criminal action is brought against a person pursuant to under this

 

subsection, the department shall not proceed to recover the penalty

 

prescribed in subsection (1).

 

     (3) If a sign owner or the sign owner's agent trims or removes

 

trees or shrubs without first having obtained a permit under

 

section 11a, the sign owner shall is not be eligible to obtain a

 

permit under section 11a to trim or remove trees or shrubs for 3

 

years from the date of the improper trimming or removal of trees or

 

shrubs.

 

     (4) If trees or shrubs within a highway right-of-way have been

 

trimmed or removed by a sign owner or its agent for the purpose of

 

making the sign more visible, the sign shall be considered illegal

 

and the department may remove the sign pursuant to in accordance

 

with the procedures established in section 19 if a court determines

 

any of the following:

 

     (a) The trimming or removal was in violation of a local

 

ordinance.

 

     (b) The trimming or removal resulted in the intentional

 

trimming or removal of trees or shrubs that were not authorized to

 

be trimmed or removed in a permit issued under section 11a.

 

     (c) The sign owner trimmed or removed trees or shrubs and did

 

not obtain a permit under section 11a.

 

     (5) If a sign is removed under this section and the department

 

subsequently receives an application for a permit under section 6

 

for the same area, the department shall consider that the

 

conditions for the permit issued under section 6 remain in force

 

for spacing and all other requirements of this act.

 

     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

 

area 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 applicant

 

shall not be required to identify the specific vegetation to be

 

managed within the identified area. 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.

 

The department may, as a condition for issuing an initial permit to

 

manage vegetation for a sign installed on or after January 1, 2012,

 

require the applicant to mitigate any loss of vegetation by

 

planting vegetation as required by the department at that location

 

or another location. Mitigation shall not include payment for the

 

loss of vegetation. 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, except as

 

otherwise provided by law, 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.

 

     (e) (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. In

 

denying an application or providing a limited permit, the

 

department shall consider previous vegetation management that was

 

allowed at the billboard site.

 

     (f) (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.January 1, 2007.

 

     (g) (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 the 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 under 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.

 

     (d) (e) The number of permits denied.

 

     (e) (f) The number of modified or denied permits which that

 

were appealed.

 

     (f) (g) The number of appeals that reversed the department's

 

decision.

 

     (g) (h) The number of appeals that upheld the department's

 

decision.

 

     (h) (i) The number of permits approved which that requested a

 

visibility time period exceeding 5 seconds.

 

     (i) (j) The amount of compensation paid to the state for

 

removed vegetation.

 

     (j) (k) The average number of days after the end of the

 

application period before an applicant was sent notice that a

 

permit was approved.

 

     (k) (l) A summary of the reasons for which the department

 

denied or modified permits.

 

     (l) (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 $1,000.00 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 $5,000.00 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 to manage vegetation 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). The department has the burden of

 

proof in an administrative proceeding brought for an alleged

 

violation of this section.

 

     (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.

 

     Enacting section 1. This amendatory act is curative and

 

applies to administrative proceedings pending on January 1, 2012

 

and filed after that date.

 

     Enacting section 2. This amendatory act takes effect January

 

1, 2012.