To revise and clarify permitting process for vegetation management at outdoor advertising signs

 

DEPARTMENT OF TRANSPORTATION

RULE NO.:RULE TITLE:

14-10.057Application and Permit Insurance

PURPOSE AND EFFECT: To revise and clarify permitting process for vegetation management at outdoor advertising signs

SUMMARY: Updates permitting criteria for trimming and removal of vegetation in Department of Transportation right-of-way within the view zone of a permitted outdoor advertising sign. Revises the incorporated application and mitigation formula.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: the rule is not anticipated to impose increased costs for compliance.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 334.044(2), 479.02(7), F.S.

LAW IMPLEMENTED: 334.044(26), 337.405, 479.106, F.S.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: December 10, 2019, 2:00 p.m.

PLACE: Burns Building Room 479, 605 Suwannee Street, Tallahassee, Florida

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Susan Schwartz, [phone], [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Susan Schwartz, Assistant General Counsel, [phone], [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

14-10.057 Vegetation Management Application and Permit Issuance.

(1) Permit Required.

(a) No person or entity may remove, cut, or trim trees, shrubs, or herbaceous plants on the Department’s right of way to make visible or to ensure future visibility of off-premise outdoor advertising signs without Department approval of an Application to Permit Vegetation Management at Outdoor Advertising Sign, Form  650-050-06, Rev. 6/19 650-050-06, Rev. 09/08, which is incorporated herein by reference at         and available electronically at https://osp.fdot.gov pursuant to this rule chapter. For purposes of this rule, the use of chemical control constitutes removing, cutting, or trimming, depending on the impact on the tree, shrub, or herbaceous plant. Department approval is requested by submitting a completed Application to the Department District Maintenance Engineer or designee with responsibility for the segment of state road to which the subject sign is permitted. Alternatively, Tthe Application must may be submitted to the State Outdoor Advertising Administrator, at the address referenced in s.14-10.0011(2) of this rule chapter or through the on-line portal with an application for a new sign permit. Form 650-050-06 is available at any Department Office or on the Department website at: www.dot.state.fl.us/emo. This rule does not apply to requests to trim or remove vegetation that screens on-premise signs that are not permitted by the Department pursuant to s. 479.07, F.S..

(b) An Application must be submitted by the outdoor advertising sign permit holder. A separate Aapplication is required for each sign facing. The vegetation management plan and mitigation appraisal , described in (if required) paragraph (c), shall both be prepared by a Certified Forestor, an International Society of Arboriculture (ISA) Certified Arborist® with Advanced Training in Roadside Vegetation, or an individual with equivalent credentials from a nationally recognized arboricultural organization, or a Llandscape Aarchitect registered pursuant to Chapter 481, Part II, F.S.

(c) The Application Package shall contain the completed application and :

1. The name, address, telephone number, facsimile number, and email address if available, of the applicant; the Department’s current outdoor advertising sign tag number; the sign permit holder’s sign face number; and the notarized signature of the applicant’s authorized representative.

1.2. The applicant’s vegetation management plan (plan) shall be for a period of not less than two years and not greater than five years. The plan shall include a plan for removing vegetation within the view zone, cutting (removing or altering more than one quarter of any plant’s height, spread, or density of branches), or trimming (the shaping or pruning of less than one quarter of any plant’s height, spread, or density of branches). The plan shall be a graphic and written document that describes the removal, cutting, trimming, planting, fertilizing, mulching, irrigation, and desired condition and appearance of existing and proposed vegetation, including a plan for disposal of debris, and a schedule and description of the intended vegetation management method(s). All vegetation management proposed in the plan shall be in accordance with this rule and Rule 14-40.003, F.A.C. A vegetation management plan will not be required for applications submitted exclusively to establish the location of a view zone or to cut, trim, or remove vegetation that would be removed as part of the Department’s routine maintenance.

3 through 5 renumbered as 2 through 4.  No Changes.

5.6.  A non-refundable application fee of $25.00. The non-refundable application fee shall be a total of $200.00 for more than eight applications submitted simultaneously, providing that they are within the same Department District. If payment is by check, the fee submitted with an aApplication must be paid separately from fees for other types of permits.

6. For a proposed sign or a sign originally permitted after July 1, 1996, designation of two permitted non-conforming outdoor advertising signs, comparable in size to the sign for which a vegetation management permit is sought, for permit cancellation and sign removal within 30 days of the Department’s issuance of a Notice of Intent to Approve Vegetation Management at Outdoor Advertsing Sign.

(d) An approved Application to Permit Vegetation Management at Outdoor Advertising Sign will serve as a permit, and authorizes the permittee to remove, cut, or trim trees, shrubs, or herbaceous plants only as provided in the approved plan, and only within an established approved view zone, which will be determined as follows:

1.  In accordance with The approved view zone shall meet the requirements of Section 479.106(6)(a) and (b) 479.107(6)(b), F.S. (see Figures 2 and 3). a view zone is established beginning at a point on the edge of pavement perpendicular to the edge of the sign facing nearest the highway and extending in the direction of approaching traffic, unless an alternative view zone is agreed upon in writing between the sign permittee and the Department’s District (Director of Operations) Maintenance Engineer or his/her designee in the District Office.

2. No change.

(e) An Application will not be approved:

1. through 3. No change.

4. To make a sign visible for more than the distance allowed by Section 479.106(6), F.S.

5 through 8 renumbered as 4 through 7. No change.

8. 9. To remove, cut, or trim trees that have a circumference, measured at 4 1/2 feet above grade, equal to or greater than 70% of the circumference of the Florida Champion of the same species as listed in the Big Trees, The Florida Register, Florida Native Plant Society, 1997, which is incorporated herein by reference, and available at many public libraries in Florida, and at on-line bookstores. Posting of this manual for public inspection would violate federal copyright law. A copy is available for public inspection during regular business hours at the Florida Department of Transportation, Program Management Office, 605 Suwannee Street, Tallahassee, Florida

9. 10. To remove, cut, or trim trees, shrubs, or herbaceous plants in violation of previsions of Section 479.106(5), F.S. This applies to vegetation that is part of a beautification project, when the project was approved prior to the permitting of any sign originally permitted after July 1, 1996. For the purpose of this rule, beautification projects include landscape projects, mitigation projects, and restoration projects. For the purpose of this rule, a beautification project is approved when it is specifically identified in the Department’s five-year work program, or is a permitted landscape project, or is part of an executed agreement between the Department and a local government, or has been approved in writing by the Department for installation at a later date by a local government.

10. To remove, cut, or trim trees, shrubs, or herbaceous plants within the right of way of a roadway section to which a sign is not permitted, or proposed to be permitted, or to remove, cut, or trim trees, shrubs, or herbaceous plants within the right of way outside of the 1,000 feet view zone parameter in s. 479.106(6)(b), F.S.

(f) Applications will be reviewed and approved or denied within 60 90 days of receipt of a completed application. The Department will notify the applicant of any apparent errors or omissions and request any additional information within 30 days of the receipt of an application.  When using the on-line portal, if a Request for Additional Information (RAI) is sent to the applicant and not responded to within 30 days, the application will become void. When an application is denied, no application fee will be charged for a revised application submitted within 90 days after the date shown on the notice of denial.

(g) An approved Application (permit) is valid for the five year term of the proposed vegetation management plan (two to five years) as represented in the plan unless the Department establishes a different expiration date on the permit based on the safety of all users of the Department’s right of way, and the need to avoid conflict with other permitted activities on the Department’s right of way, or changes in roadside conditions.

(h) No change.

(2) Renewal Applications

(a)(i) Permit holders are responsible to track the expiration date of the permit. When a permit has expired for over 30 calendar days, changes are proposed, or previous permit conditions were not met, a new permit may be requested by submitting a new complete Application is required to obtain a new permit. When a permit is about to expire, or has expired within 30 calendar days of an application for a new permit at the same location, the conditions of the previous permit have been met, and there are no proposed changes to the previously approved vegetation plan; only the following will be required from the applicant for the same location:

1. Cover letter to the District Maintenance Engineer in the Department State Outdoor Advertising Administrator District Office where existing permit was secured. The cover letter must include a statement that indicating the applicant will adhere to the conditions of the original permit and vegetation management plan.

2. Completed application.

2.3. Copy of the previous application that shows the Department’s District’s approval.

3.4.  Application fee.

4. Color photographs of the sign and the entire view zone taken within six weeks prior to the renewal request being made to the Department.

(3) (2) Vegetation Management on the Right of Way.

(a) A copy of the entire approved aApplication and vegetation management plan must be on site and available for review by the Department when vegetation management is in progress.

(b) All work performed pursuant to an approved application to permit a Permit for Vegetation Management at Outdoor Advertising Sign shall follow the approved vegetation management plan.

(c) Chemical control of vegetation is limited to the use of United States Environmental Protection Agency approved selective herbicides. Foliar application of herbicides is limited to the control of invasive exotic plants.

(d) Within 10 working days after completion of the removal, cutting, or trimming of vegetation, a qualified individual, as described in paragraph (1)(b) above, must inspect the view zone and adjoining right of way, and submit written notification to the Department State Outdoor Advertising Administrator District Maintenance Engineer or designee that the work is complete. The correspondence must indicate the extent and nature of any unauthorized removal, cutting, or trimming.

(4) (3) Mitigation. An applicant shall mitigate in accordance with this rule chapter for the impact to vegetation from removal, cutting, trimming, or accidental damage of vegetation on the Department’s right of way.

(a) Mitigation is required:

1. Where cutting or trimming of, or damage to vegetation permanently detracts from the appearance or health of trees (including palm trees), shrubs, or herbaceous plants, or where cutting and trimming of trees or shrubs is not done in accordance with the standards set forth in American National Standards for Tree Care Operations – Tree, Shrub, and Other Woody Plant Management – Standard Practices (Pruning), ANSI A300 (Part 1) – 2008 Pruning, available at www.tcia.org. Posting of this manual for public inspection would violate federal copyright law.  A copy is available for public inspection during regular business hours at the Florida Department of Transportation, Program Management Office, 605 Suwannee Street, Tallahassee, Florida. the following documents: American National Standards Institute Tree Shrub and Other Woody Plant Maintenance-Standard Practices, 1995, and Fertilization, 1998, Publication #A300 (Part 2), and Tree-Pruning Guidelines authored and published by the International Society of Aboriculture, 1995, which are hereby incorporated by reference. Copies of these publications are available for purchase from the International Society of Arboriculture, Post Office Box GG, Savoy, Illinois 61874-9902, phone [phone], Fax [phone], or on the Internet at www.flaisa.org. This requirement does not apply to the cutting or trimming of, or damage to invasive exotic plants (plants listed by the Florida Department of Environmental Protection Rule Chapter 62C-52, F.A.C., Aquatic Plant Importation, Transportation, Non-Nursery Cultivation, Possession, and Collection, and plants listed by the Florida Department of Agriculture and Consumer Services, in Rule Chapter 5B-57, F.A.C., Introduction or Release of Plant Pests, Noxious Weeds, Arthropods, and Biological Control Agents, or other plant species determined by the Department to be a nuisance to natural habitats or agriculture, or to have an adverse effect on the maintenance or safety of the Department’s right of way).

2 through 5. No change.

(b) Where mitigation is necessary, the applicant will provide with the Application for Vegetation Management an appraisal prepared by a qualified individual as defined in above paragraph (1)(b) using the appropriate appraisal method found in Determining the Mitigation Value of Roadside Vegetation, Florida Chapter of the International Society of Arboriculture, 2000, which is incorporated herein by reference at                               . Copies of this document can be obtained by contacting the International Society of Arboriculture as listed in subparagraph (3)(a)1., above. Pending approval by the Department, Tthe appraised value of the vegetation to be cut and removed will be the required mitigation subject to Department verification of the . Approval is based on completeness and accuracy of mitigation calculations.

1. The mitigation may be paid as a fee (Option 1) equal to the amount of the mitigation appraisal prepared in accordance with paragraph (b) of this rule. Mitigation fees must be paid to the Department prior to approval of an Application.

2. As an alternative to the mitigation fee, tThe permittee may design and build a mitigation project equal to the appraised value, at an approved location within the right of way (Option 2). Applicants must contact the District Landscape Architect when preparing to develop a mitigation plan. For mitigation projects, the applicant must submit a mitigation plan which, in addition to the requirements of this rule, meets the requirements for landscape plans in Rule 14-40.003, F.A.C., to the Department for approval. Mitigation projects must be designed to avoid additional maintenance costs by the Department. The mitigation plan shall include a landscape plan, maintenance plan (including watering for establishment for a period of one year from the date of planting), and an estimated budget of all expenses to install, establish, and maintain the replacement vegetation. The value of the completed mitigation project must be equal to or greater than the appraised value of the cut and removed vegetation. When a mitigation project does not meet the required mitigation value, the balance is due to the Department as a mitigation fee. When the mitigation plan is approved, the applicant may proceed to construct the mitigation project. Failure to complete the mitigation project within six months after the vegetation is cut or removed will result in a penalty for unauthorized removal, cutting, or trimming as described in subsection  (5)(4) of this rule. The permittee is required, at the permittee’s expense, to remove and replace any mitigation materials that have not survived in a healthy condition for the first full year after planting. The replacement materials shall be of like size and variety as the replaced material, or may be other material proposed by the permittee, and determined by the Department, to be more likely to survive. If the mitigation project is not restored to meet the permit requirements, the permittee is subject to enforcement of required mitigation and the penalty for unauthorized removal, cutting, or trimming.

(c) Mitigation is not required for the following activities:

1. when Ttrimming limited to maintaining maintains a plant’s natural habit of growth, and is performed in accordance with professionally accepted arboricultural standards, cited in the documents previously referenced in subparagraph (4) (3)(a)1. of this rule.

2.  Removal of Young trees (immature trees that are no taller than the surrounding shrubs and herbaceous plants) of species that upon their maturity are likely to interfere with the visibility of a permitted outdoor advertising sign displays may be removed without mitigation.

3. Removal of iInvasive exotic plants as listed by the Florida Department of Agriculture and Consumer Services, in Rule Chapter 5B-57, F.A.C., Introduction or Release of Plant Pests, Noxious Weeds, Arthropods, and Biological Control Agents, and Rule 5B-64.011 Prohibited Aquatic Plants may be removed without mitigation.

4. Removal of Where the Department has determined that vegetation that is diseased, or structurally damaged through no fault of the applicant, beyond a point where restoration is practicable, the vegetation may be removed without mitigation.

(d) Special Conditions Affecting Mitigation. The following additional provisions apply only to vegetation management pursuant to a permit issued under this rule:

5. 1. Cutting or removal of  Mitigation is not required for vegetation that the Department normally cuts or removes pursuant to its regular maintenance of the Department’s right of way.

6. 2. Mitigation is not required for Removal of vegetation when the Department’s roadway plans explicitly show that the vegetation will be removed as part of the clearing and grubbing for a construction project designed and included in the Department’s five-year work program.

7. 3. Mitigation is not required for Removal or cutting of vegetation that was installed within a the approved view zone after July 1, 1996, provided so long as the sign was permitted prior to the installation of the vegetation.

(5)(4) Unauthorized Removal, Cutting, or Trimming of Vegetation. Any person engaged in unauthorized removal cutting, or trimming of vegetation in violation of Section 479.106, F.S., or who benefits from such action, is subject to a penalty of $1,000 per incident per sign facing and shall provide mitigation as required by subsection (4) (3). For purposes of this subsection, the application of any chemical compound that kills or injures a tree, shrub, or herbaceous plant constitutes removal, cutting, or trimming.

Rulemaking Authority 334.044(2), 337.2505(1), 479.02(7), 479.106(8) FS. Law Implemented 334.044(26), 335.167, 337.405, 479.106 FS. History–New 1-19-99, Amended 2-7-02, 2-8-06, 12-24-08,,                       Formerly 14-40.030.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Ken Pye, Manager, Outdoor Advertising and LOGO

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Secretary Kevin Thibault, P.E.

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 30, 2019

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: February 9, 2018