TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

COMMONWEALTH TRANSPORTATION BOARD

Proposed Regulation

Title of Regulation: 24VAC30-121. Comprehensive Roadside Management Program (amending 24VAC30-121-10 through 24VAC30-121-40).

Statutory Authority: §§ 33.2-210 and 33.2-265 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: August 2, 2024.

Agency Contact: Jo Anne Maxwell, Director, Governance and Legislative Affairs, Department of Transportation, 1401 East Broad Street, Richmond, VA 23219, telephone (804) 786-1830, or email joanne.maxwell@vdot.virginia.gov.

Basis: The Virginia Department of Transportation (VDOT) has the authority to implement a comprehensive roadside management program pursuant to § 33.2-265 of the Code of Virginia.

Purpose: The proposed regulatory amendments are intended to remove redundant or obsolete language, add clarity, and achieve regulatory reduction and streamlining in accordance with Executive Order 19 (2022). The regulation addresses opportunities for participation by individuals, communities, and local governments; safety; landscape materials; services; funding; recognition; and appropriate signing. Under the regulation, acknowledgment signs must comply with safety requirements and the criteria for placement for specific highway systems and access type. As such, the regulation remains necessary for the protection of public health, safety, and welfare.

Substance: The proposed amendments will achieve administrative updates, eliminate redundancy, add clarifying language, and bring the text in line with current practice.

Issues: The proposed amendments benefit the public by removing redundant or outdated language and providing clarity as to current VDOT practice and are not anticipated to present a disadvantage to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. Pursuant to Governor Youngkin's Executive Order 19² (EO 19), the Department of Transportation (VDOT) proposes to eliminate regulatory requirements by (i) removing the restriction that prevents acknowledgment signs that are installed pursuant to this program from remaining in place for more than 10 years, (ii) increasing the trunk base diameter of vegetation that may be pruned or cut within highway rights-of-way from four inches to six inches, and (iii) removing redundant or obsolete language.

Background. This regulation governs the voluntary activities of private businesses, civic organizations, communities, individuals, and local governments that are intended to improve the appearance and safety of the state-maintained right-of-way by participating in project development, establishment, and maintenance of landscaping activities within the right-of-way. Pursuant to EO 19 and after undertaking a comprehensive review of this regulation, VDOT proposes to remove redundant or obsolete language, reduce regulatory requirements, and streamline the regulatory text.

As currently drafted, the regulatory text contains some language that VDOT states is redundant of already existing requirements elsewhere in the Virginia Administrative Code and some language that is obsolete due to changes in agency practices. VDOT proposes to repeal such language to reduce or clarify the text.

Additionally, two of the proposed changes would alter the existing requirements. One of these changes would remove the restriction that prevents acknowledgment signs that are installed pursuant to this program from remaining in place for more than 10 years. VDOT states that the 10-year timeframe in this regulation is in direct conflict with 24VAC30-121-20 C where the relevant time limit specified is five years, presenting a potential for confusion among entities participating in roadside landscaping activities and for local governments enforcing this requirement.

The purpose for the second change in the existing requirements is similar, in that VDOT proposes to increase the trunk base diameter of vegetation that may be pruned or cut within highway rights-of-way to improve appearance from four inches to six inches to be consistent with 24VAC30-200, Vegetation Control Regulations on State Rights-of-Way, which is broader in its application than this regulation.

Estimated Benefits and Costs. The applicability of this regulation appears to be fairly limited. VDOT reports that they rarely receive applications for this program. The last permit issued under this regulation was before 2019. Since then, there have not been any applications for a roadside landscaping project.

The proposed removal of the 10-year maximum limitation for an acknowledgment sign mainly aims to resolve a conflict within the same regulation that states the limit is five years. VDOT also reports that enforcement of this limit on the signage falls on the local governments, and therefore they do not have any information as to whether and to what extent the 10-year limitation has been enforced in practice. It appears that removing a sign would be fairly easy to accomplish. Additionally, even if the cost of signage removal may be non-negligible, this change only affects the timing of the removal and not whether it would be removed. For these reasons and given the very limited participation in this program, this change is not expected to create a significant economic impact.

Similarly, allowing the pruning or cutting of vegetation that is two inches wider than the current diameter of four inches is also unlikely to create a significant economic impact for the very few applicants for the roadside landscaping projects permitted under this regulation. In addition, the permittee may choose not to prune or cut vegetation between four to six inches of trunk base diameter. However, no data or information exist to indicate the nature and extent of such pruning and the vegetation that may be affected, and thus it is unclear if this change would impose any other costs.

The changes that remove redundant or absolute language are likely to improve the clarity of the regulatory text with no other significant economic impacts.

Businesses and Other Entities Affected. This regulation applies to applicants who wish to improve the appearance and safety of the state-maintained right-of-way by participating in project development, establishment, and maintenance of landscaping activities within the state right-of-way. The last permit issued under this program was before 2019. No applicant appears to be disproportionally affected.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.³ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁴ As noted, the permits issued for this program appears to be an infrequent occurrence; there does not seem to be significant compliance costs associated with the two specific changes discussed; and the participation is voluntary. Thus, an adverse impact is not indicated.

Small Businesses⁵ Affected.⁶ The proposed amendments do not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ Although local governments enforce the limit on the lifespan of an acknowledgment signage, given the small number of applications for projects under this regulation and there being no apparent significant costs to enforce the relevant requirements, the proposed changes do not appear to introduce any significant costs for them.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposal applies to landscape activities on the state-maintained right-of-way that is public property. While major improvements in the appearance of such land may positively affect the values of neighboring private property or real estate development costs, the proposed changes in this action does not appear to rise to that level. Thus, neither significant impact on the use and value of private property nor on real estate development costs is expected.

_____________________________

¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/eo/EO-19-Development-and-Review-of-State-Agency-Regulations.pdf.

³ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁴ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁵ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁶ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Department of Transportation agrees with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The Comprehensive Roadside Management Program enables private businesses, civic organizations, communities, individuals, and local governments to improve the appearance and safety of the state-maintained right-of-way by participating in project development, establishment, and maintenance of landscaping activities within the right-of-way. The proposed amendments include (i) removing redundant or outdated language and requirements, (ii) adding an exception for limited access highways from some local government provisions, (iii) requiring permittees to maintain any permitted areas for the life of the permit instead of in perpetuity, and (iv) clarifying and streamlining the regulation.

24VAC30-121-10. Purpose.

The Comprehensive Roadside Management Program (program) is administered by the Virginia Department of Transportation (department), and enables private businesses, civic organizations, communities, individuals, and local governments an opportunity to improve the appearance and safety of the state maintained state-maintained right-of-way or real property, herein referred to as right-of-way, by participating in the project development, establishment, and maintenance of landscaping activities within the state-maintained right-of-way. This chapter sets forth policies and procedures governing the program.

24VAC30-121-20. Participation.

A. Eligible entities. A local government, private business, community, individual, or civic organization may fully fund the development, establishment, or maintenance, or any combination of these, activities of landscaping a segment of the right-of-way upon application to, and approval by, a designated department Virginia Department of Transportation representative. Such entities are Entities eligible to participate as are:

1. A single local government;

2. A local government partnership between one or more contiguous local governments; or

3. A private business, civic organization, community, or individual through sponsorship by a local government or local government partnership. Such entities are eligible to participate as a donor through the local government by providing to the local government cash or noncash contributions.

B. Acknowledgement Acknowledgment signs. Signs acknowledging the name or, logo, or both, of participating entities may be authorized for erection at the project site in accordance with 24VAC30-121-40 D 2. However, no acknowledgment signs installed pursuant to this program shall remain in place for more than 10 years.

C. In addition to the specifications in 24VAC30-121-40 D 2, in order to be recognized on an acknowledgement acknowledgment sign, an entity must provide a minimum cash or in-kind contribution to the permittee for the landscaping activity as specified below in this subsection. Such contribution shall allow an acknowledgement acknowledgment sign for five years, unless the need arises for removal or relocation of the sign. Cost of the acknowledgement acknowledgment sign shall not count toward the minimum contribution requirement.

1. Noncontrolled access primary and secondary highways: $7,500 contribution.

2. Controlled access primary and secondary highways: $8,500 contribution.

3. Interchanges on controlled access primary and secondary highways: $10,000 contribution.

4. Interstate interchanges: $20,000 contribution.

24VAC30-121-30. Application requirements.

A. All program activities must be applied for by the local governments within the jurisdiction in which the activity is proposed to occur in accordance with the General Rules and Regulations of the Commonwealth Transportation Board (24VAC30-21) and the Land Use Permit Regulations (24VAC30-151). The Land Use Permit Regulations and the general rules may be obtained from the Virginia Department of Transportation, 1401 East Broad Street, Richmond, Virginia 23219, or by accessing the Virginia Administrative Code website at http://lis.virginia.gov/cgi-bin/legp604.exe?000+reg+TOC24030.

1. Single activity or segment permit. A local government may apply for a permit for each individual proposed activity or for all proposed activities on a specific route.

2. Jurisdiction-wide permit. A local government may apply for a jurisdiction-wide permit to cover all proposed activities occurring within that local government's jurisdictional boundaries on the right-of-way, excepting limited access highways. Such jurisdiction-wide permits must be renewed on an annual basis from the date of permit issuance. The local government shall notify the official local Virginia Department of Transportation (department) office (residency) prior to the installation of any landscaping under this permit.

B. The application shall be in the form prescribed by the Land Use Permit Regulations and shall at a minimum include:

1. The name, telephone number, and complete mailing address of the local government and the authorized local government representative who shall be officially designated by the local government as having full administrative and operational authority over all proposed activities;

2. A maintenance agreement that outlines obligated specific maintenance activities and responsibilities, projected maintenance costs, and related funding commitments necessary to ensure areas are maintained and performing perform as originally permitted; and

3. A formal resolution of endorsement from the local governing body, adopted subsequent to a public hearing during which the proposed landscaping activities are made available for review. The local governing body shall provide written notification to the department of its intention to hold such a hearing no later than 14 days prior to such hearing. Such notification shall be made to the Virginia Department of Transportation, 1401 East Broad Street, Richmond, Virginia 23219 residency that has responsibility for the highways in the locality.

24VAC30-121-40. Conditions.

A. In order to participate in the program, each project activity must comply with the Land Use Permit Regulations and the general, site, and design considerations specified in this section.

B. General considerations. The following general considerations apply to any permitted activity:

1. Qualifications. All work shall be performed by qualified local government personnel or qualified individuals acting as an agent agents of the permitted local government.

2. Compliance. Such work shall comply with all departmental Virginia Department of Transportation (department) specifications, standards, policies, and guidance as provided in the terms of the permit and all applicable federal, state, and local government policies, laws, regulations, and ordinances.

3. Improvement. Any permitted activity must ensure a net improvement to existing right-of-way conditions and impose no net operational or financial burden to the department as determined by the department.

4. The permittee shall be responsible for the maintenance of the permitted areas in perpetuity for the life of the permit. In the event the permittee fails to adequately maintain the improvements, the department may, at its discretion, revoke the permit. Prior to such revocation, the department may, at its discretion and at the permittee's expense, return the permitted area to its original condition.

5. The master plan, project concept plan, sketches, drawings, estimates, specifications, and descriptive text of all activities and any required federal, state, or local permits shall be available for review by the department at all times.

C. Site considerations. For sites a site to be approved by the department, the following site conditions must be met. The site must:

1. Not The site must not be scheduled for future construction as defined within the department's current six-year improvement plan, which would conflict with the activities proposed on the project;

2. Contain The site must contain sufficient right-of-way to reasonably permit planting and landscaping operations without conflicting with safety, geometric operational, and or maintenance considerations;

3. Not The site must contain no overhead or underground utilities, driveways, pavement, sidewalks, or highway system fixtures, including traffic signage or signalization, that will conflict with the planting or landscaping operations proposed under the project; and

4. Not The proposed activities must not obstruct or interfere with existing drainage conditions along the site.

D. Design considerations. For sites a site to be approved by the department, the following design considerations must be met.

1. The project design shall not include the following design elements:

a. Lighting;

b. Flagpoles or pennant poles;

c. Fountains or water features;

d. Landscaping that depicts or represents any logo, name, or constitutes an advertisement in any form;

e. Statuary, sculpture, or other art objects;

f. Pruning or cutting within highway rights-of-way of vegetation with trunk base diameter greater than four six inches, unless approved by the District Roadside Manager;

g. Any improvements intended to provide greater visibility to any existing or future business, advertisement, or advertising structure; or

h. Any improvements that obscure or interfere with the view of existing lawfully erected advertising structures from the main traveled way.

2. Acknowledgement Acknowledgment signs and structures installed pursuant to this program must meet the following design specifications:

a. Panels per sign structure: a maximum of two acknowledgement acknowledgment panels per sign structure.

b. Panel dimensions: 6 six feet wide by 20 inches tall; 3 three inches corner radii; 1.5 1/2 inch—2 to two inches thick.

c. Sign material: high density sign foam or equivalent.

d. Background color options: dark blue (Pantone Matching System #288 or equivalent as determined by the department), dark burgundy (Pantone Matching System #188 or equivalent as determined by the department), dark green (Pantone Matching System #349 or equivalent as determined by the department), or off-white (Pantone Matching System Cool Gray 1 or equivalent as determined by the department).

e. Sign border: must be inset 1 one inch from outside edge to a 3/4-inch wide border formed by sandblasting or routing a depth of 1/4-inch 1/4 inch to 1/2-inch 1/2 inch; color must be off-white (Pantone Matching System Cool Gray 1 or equivalent as determined by the department) if dark background or dark blue (Pantone Matching System #288 or equivalent as determined by the department), dark burgundy (Pantone Matching System #188 or equivalent as determined by the department), or dark green (Pantone Matching System #349 or equivalent as determined by the department) if off-white background.

f. Acknowledgement Acknowledgment content: a single sponsoring entity may be represented per panel; the representation may be placed within but no closer than 1/2—inch 1/2 inch inside the border and formed by sandblasting or routing a depth of 1/4 inch to 1/2 inch.

g. The words "Landscaping by" must be included in the upper left hand area of the border and must be a minimum of three inches tall. The border must be broken and the color of the "Landscaping by" must be the same as the border.

h. Installation: the bottom of the sign at its closet closest point to the ground shall not be greater than 30 inches above the ground. The distance between panels shall not exceed four inches. Post height shall not exceed five inches above the top of the highest panel, with the top one inch trimmed at a 45-degree angle. Post stain color must be a solid gray (Pantone Matching System #423 or equivalent as determined by the department).

3. In the event an acknowledgement acknowledgment sign structure or panel is damaged, the permittee shall be responsible for repairing or replacing the sign.

4. Acknowledgement Acknowledgment sign structures installed pursuant to this program may be placed within the right-of-way, within the limits of the installed landscaping, at the following locations:

a. Noncontrolled access primary and secondary highways with speed limits of 45 mph or less: no greater than one acknowledgement acknowledgment sign structure per direction per 1/4 mile of main traveled way.

b. Noncontrolled access primary and secondary highways with speed limits greater than 45 mph: one acknowledgement acknowledgment sign structure per direction per 1/2 mile of main traveled way.

c. Controlled access primary and secondary highways with speed limits of 45 mph or less: no greater than one acknowledgement acknowledgment sign structure per direction per 1/4 mile of main traveled way except as specified in subdivision 4 e of this subsection.

d. Controlled access primary and secondary highways with speed limits greater than 45 mph: no greater than one acknowledgement acknowledgment sign structure per direction per 1/2 mile of main traveled way except as specified in subdivision 4 e of this subsection.

e. Interchanges on controlled access interstates, primary, and secondary highways: no greater than one acknowledgement acknowledgment sign structure per turning roadway.

FORMS (24VAC30-121)

Land Use Permit Application, LUP-A (rev. 3/2010).

Land Use Permit Application, LUP-A (rev. 5/2023)