Title of Regulation: 24VAC30-200. Vegetation Control Regulations on State Rights-of-Way (amending 24VAC30-200-20).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: February 2, 2022.

Effective Date: February 18, 2022.

Agency Contact: Jo Anne P. Maxwell, Regulatory Coordinator, Policy Division, Department of Transportation, 1401 East Broad Street, 11th Floor, Richmond, VA 23219, telephone (804) 786-1830, FAX (804) 225-4700, or email joanne.maxwell@vdot.virginia.gov.

Basis: The Department of Transportation (VDOT), through the Commissioner of Highways and Commonwealth Transportation Board, has the authority to promulgate this regulation pursuant to § 33.2-210 of the Code of Virginia, which gives the board the power and duty to make regulations that are not in conflict with the laws of the Commonwealth for the protection of and covering traffic on and for the use of systems of state highways. Section 33.2-1221 B 3 of the Code of Virginia authorizes the department to issue and charge fees for pruning permits.

Purpose: Upon conducting a periodic review of the regulation, it was determined that the inconsistency between the requirements for cutting and pruning in front of businesses and in front of outdoor advertising made enforcement unequal. VDOT has also determined through surveying VDOT roadside managers that the less than two-inch diameter limitation for cutting and pruning vegetation in front of businesses is too restrictive and is impractical in many cases due to the rate of vegetation growth. Therefore, VDOT contends that the regulation should be amended to allow the equal treatment and regulation of both outdoor advertising signs and businesses. Allowing businesses to be more visible increases the number of potential consumers that can see those businesses, increasing the economic transactions for the business, benefiting public welfare.

Rationale for Using Fast-Track Rulemaking Process: The action is considered noncontroversial because it provides equal enforcement between vegetation control in front of businesses and outdoor advertising. Allowing businesses to be more visible from highways increases the potential for customers to see the businesses, which businesses support. The requirement that any vegetation cut be replaced remains in the regulation, which should satisfy those persons concerned with the environmental impacts of cutting vegetation.

Substance: In 24VAC30-200-20 B, the restriction on cutting vegetation in front of businesses will be amended from trunks two inches in diameter to trunks six inches in diameter, and the restriction on pruning vegetation in front of businesses will be amended from limbs two inches in diameter to limbs four inches in diameter.

Issues: One advantage to the public of the proposed amendments is allowing businesses to be more visible from highways increasing the potential for customers to see the businesses. There is no disadvantage to the public. The advantage to the Commonwealth is more consistent rules between businesses and outdoor advertising leads to simpler enforcement procedures. There is no disadvantage to the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As a result of a 2019 periodic review,¹ the Commonwealth Transportation Board (Board) proposes to allow cutting of larger trees (trunk base diameters of less than six inches vs. two inches) and pruning of larger branches (pruning of limbs up to four inches in diameter vs. two inches) to make a business more visible from a highway.

Background. The Virginia Department of Transportation (VDOT) or its contractors are authorized to cut or prune vegetation that may obscure off-premises business signage (almost exclusively billboards under this regulation) along highways and also vegetation that may obscure businesses that are visible from any VDOT maintained highway; these practices are referred to as "daylighting." Currently, to make a billboard more visible from a highway trees up to six inches in diameter and branches up to four inches in diameter may be cleared. However, businesses are only allowed to cut trees or branches that are less than two inches in diameter. VDOT has determined that the regulation currently treats business-related vegetation removal differently than that of outdoor advertising signs, thus treating the regulation of outdoor advertising signs and businesses unequally. As a result, the Board proposes to allow businesses to also use the less restrictive cutting and pruning standards currently used for outdoor advertising. VDOT will maintain the requirements for replacing cut vegetation under a landscape plan.

Estimated Benefits and Costs. Increasing the diameter of trees and branches that can be cleared to daylight a business location from two inches to six inches for trunk base and to four inches for branches can spark new interest from owners of businesses alongside the roadways. According to VDOT, the current two inch-diameter standard for trunk bases as well as the branches makes it impractical in many cases to undertake any such effort due to rate of vegetation growth. Thus, an increase in permit applications for daylighting a business may be expected. There were six permits issued by VDOT in 2020 to daylight businesses. However, unlike daylighting billboards, which is exclusively handled by VDOT, VDOT delegates its authority to localities for activities pertaining to daylighting businesses in cities. Therefore, it is likely there were more than six business daylighting projects permitted in 2020, but VDOT does not have those statistics.

The main benefit of the proposed change is allowing businesses to make their business frontage more visible from the roadway if they are interested in doing so. VDOT states that daylighting a business is unlikely to distract drivers, in part because a landscape plan will still be required. However, VDOT notes that any cutting and pruning would still require setting up a road-work zone and may create the usual work road hazard to drivers in that area while the work is being done. Given that the current two-inch diameter standard makes daylighting impractical in some instances, the new standard may result in an increase in road-work zones to the extent that it encourages new daylighting activity.

Businesses and Other Entities Affected. The proposed changes apply to any business wishing to improve their visibility from a highway. There were six permits issued by VDOT in 2020 to daylight a business location. However, localities are delegated authority to issue permits to daylight businesses as well, but information on permits issued by localities is lacking. No adverse impact² on businesses is indicated.

Small Businesses³ Affected. The proposed amendments do not appear to adversely affect small businesses.

Localities⁴ Affected.⁵ The proposed changes could potentially lead to an increase in applications being received by localities, especially cities, to daylight a business location. Localities are authorized to collect $400 per permit application. Assuming that the permit fee is sufficient to cover administrative costs of the locality, no adverse impact on localities is expected. The proposed regulation does not introduce costs for local governments.

Projected Impact on Employment. The proposed changes could lead to an increase in tree clearing and landscaping work and demand for such labor, but it does not appear that it would significantly affect total employment.

Effects on the Use and Value of Private Property. The proposed changes would allow more visibility from highways if a business is interested in daylighting its location. Increased visibility could lead to name recognition, more sales, and higher asset value. The proposed amendments do not appear to directly affect real estate development costs.

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¹https://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1847

²Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

³Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

⁴"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.

⁵§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The amendments allow cutting of larger trees (trunk base diameters of less than six inches) and pruning of larger branches (pruning of limbs up to four inches in diameter) to make a business more visible from a highway.

24VAC30-200-20. General provisions.

A. Permits will be issued by the department to control vegetation in front of a sign/structure sign or structure that is not exempt from the provisions of § 33.2-1204 of the Code of Virginia or business that is visible from any highway as defined in § 33.2-1200 of the Code of Virginia and regulated by the territorial limitations as defined in § 33.2-1202 of the Code of Virginia provided the vegetation control work meets the criteria set forth in § 33.2-1221 and this chapter. An application may be filed with the Commissioner of Highways by an agent, including but not limited to companies that trim trees. In all other areas the local government official shall issue the permits.

B. All cutting to make an outdoor advertising structure more visible from the roadway shall be limited to vegetation with trunk base diameters of less than six inches. All cutting to make a business more visible from the roadway shall be limited to vegetation with trunk base diameters of less than two six inches. All stumps shall be treated with a cut-stump pesticide applied by a licensed pesticide applicator with a license issued by the Virginia Department of Agriculture and Consumer Services in Category 6. All pesticides shall be approved by the department or local government official prior to use. Selective thinning in accordance with specifications or removal of unsightly vegetation will be allowed on an individual basis to enhance the health and growth of the best trees or to eliminate roadway hazards if recommended by the certified arborist supervising the work and agreed to by the department or local government official. Trees that are diseased, damaged by insects, unsightly, or that pose a safety hazard may be removed when recommended by the certified arborist supervising the work and approved by the department or local government official. When tree removal is recommended by the certified arborist and approved by this permit, the permittee shall provide a list of suitable trees and shrubs and a landscape plan to replace vegetation removed to the inspector or local government official for review and approval prior to issuance of the permit. The certified arborist and the department or local government official shall agree on size and species of replacement vegetation. The permittee shall plant, at his the permittee's expense, all replacement vegetation at the locations shown on the landscape plan in accordance with the specifications. The establishment period for replacement vegetation shall be in accordance with § 605.05 of the specifications. No pruning of vegetation to make an outdoor advertising sign more visible from the roadway will be permitted if the cut at the point of pruning will exceed four inches in diameter. No pruning of vegetation to make a business more visible from the roadway will be permitted if the cut at the point of pruning will exceed two four inches in diameter. No leader branches shall be cut off in such a manner as to retard the normal upright growth of the tree unless recommended by the certified arborist and approved by the department or local government official. All trees and brush removed shall be cut at ground level. Dogwood or other small flowering trees on the site shall not be removed. The use of climbing irons or spurs is positively forbidden in any tree.

C. When daylighting signs, every effort shall be made to form a picture frame around the sign with remaining vegetation so as to accent the beauty of the surrounding roadside. A picture frame effect shall be achieved by leaving vegetation in place that will cover the sign structure supports below the face as seen from the main-traveled way.

D. A permit must be obtained from the department or local government official prior to any vegetation control work on the state's rights-of-way. All work shall be performed by the permittee at his expense, including permit and inspection fees.

E. A violation of this chapter shall, in addition to penalties provided in § 33.2-1229 of the Code of Virginia, result in a permittee or its agent or both losing its vegetation control permit privilege for five years. Additionally, the bond amount used to secure the permit will be used for any reparations to the site. Inadvertent violations of this permit will require replacement on a four-to-one basis with other suitable small trees approved by the department or local government official to enhance the roadside beauty. The department or local government official shall have full authority to determine specie and size of all replacement vegetation if inadvertent cutting occurs.