ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 472
(Senators Unger, Green, Caruth and Stollings, original sponsors)
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[Passed April 11, 2009; in effect ninety days from passage.]
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AN ACT to amend and reenact §17-22-1, §17-22-6, §17-22-7, §17-22-8,
§17-22-9, §17-22-10, §17-22-11 and §17-22-13 of the Code of
West Virginia, 1931, as amended, all relating to amending
restrictions on outdoor advertising of businesses located on
real property owned or leased by the business advertised.
Be it enacted by the Legislature of West Virginia:
That §17-22-1, §17-22-6, §17-22-7, §17-22-8, §17-22-9,
§17-22-10, §17-22-11 and §17-22-13 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 22. OUTDOOR ADVERTISING.
§17-22-1. Legislative finding.
The Legislature hereby finds and declares: (a) That outdoor
advertising is a legitimate, commercial use of private property
adjacent to roads and highways; (b) that outdoor advertising is an
integral part of the business and marketing function and an
established segment of the national economy which serves to promote and protect private investments in commerce and industry; and (c)
that the erection and maintenance of outdoor advertising signs,
displays and devices in areas adjacent to federal-aid interstate
and primary highways should be regulated in order to protect the
public investment in such highways, to promote the recreational
value of public travel, to preserve natural beauty and to promote
the reasonable, orderly and effective display of such signs,
displays and devices.
The Legislature further finds and declares that fiscal
actualities reflect that the people of the State of West Virginia
would suffer economically if the state failed to participate fully
in the allocation and apportionment of federal-aid highway funds,
more specifically that a reduction in federal-aid highway funds
would necessitate increased local taxation to support and maintain
the highway program and system, and that it is the intention of
this bill, among other things, to provide a statutory basis for
regulation of outdoor advertising consistent with the public policy
relating to areas adjacent to federal-aid interstate and primary
highways declared by the Congress of the United States, in Title
23, United States Code, and that the economic benefit resulting
from full participation in the federal highway program would
constitute a benefit to the community as a whole.
§17-22-6. Purchase or condemnation; powers of Commissioner of
Highways; payment to claimants.
The Commissioner of Highways is hereby authorized and
empowered to make acquisition of all of the property rights and interest specified in section five of this article by purchase at
private sale or, in the event he is unable to do so, by proceeding
in eminent domain. Upon any such taking or acquisition pursuant to
the provisions of this article, just and full compensation for the
sign and leasehold interest shall be paid directly to the owner
thereof, and just and full compensation for the loss of the right
to erect and maintain signs shall be paid directly to the owner of
the affected real property. In any condemnation proceeding
involving such taking or acquisition by the state, the
commissioners or jury shall ascertain the compensation to which the
owner of the sign and leasehold interest is entitled, separate and
apart from the compensation to which the owner of the real property
is entitled, as provided and authorized in section eighteen,
article two, chapter fifty-four of this code.
§17-22-7. Exceptions to prohibited signs; standards for excepted
signs.
The provisions of section three of this article shall not
apply to the following: (a) Directional and other official signs
and notices required or authorized by law, including, but not
limited to, signs and notices pertaining to natural wonders, farm
wineries, mini-distilleries, scenic and historical attractions,
which such signs and notices shall conform to standards respecting
lighting, size, number, spacing and such other appropriate
requirements as may be designated and specified by the Secretary of
Transportation of the United States:
Provided, That the
Commissioner of Highways shall not establish any standards respecting lighting, size, number, spacing and other appropriate
requirements which are stricter than such standards designated and
specified by the Secretary of Transportation of the United States;
(b) signs, displays and devices advertising the sale or lease of
property upon which they are located; and (c) signs, displays and
devices advertising activities conducted on the property on which
they are located, including markers of underground utility
facilities.
§17-22-8. Exempted areas; agreements between Commissioner of
Highways and United States Secretary of
Transportation.
In order to promote the reasonable, orderly and effective
display of outdoor advertising while remaining consistent with the
purposes of this article, signs, displays and devices, whose size,
lighting and spacing shall be determined by agreement between the
Commissioner of Highways of West Virginia and the Secretary of
Transportation of the United States, may be erected and maintained
within six hundred sixty feet of the nearest edge of the
right-of-way of federal-aid interstate or primary roads, within
areas zoned industrial or commercial, or in unzoned commercial or
industrial areas, as may be determined by agreement between the
Commissioner of Highways of West Virginia and the Secretary of
Transportation of the United States:
Provided, That any such
agreement shall contain a definition of unzoned commercial or
industrial areas which reflects existing conditions in this state, such as, without limiting the foregoing, existing land use,
availability of land for urban development, topography and accepted
zoning practices now prevailing in this state. Any agreement
between the Commissioner of Highways and the Secretary of
Transportation relating to size, lighting and spacing shall reflect
customary usage in this state. Any agreement between the
Commissioner of Highways and the Secretary of Transportation
defining unzoned commercial or industrial areas, or relating to
size, lighting and spacing, shall be no more restrictive than
necessary to secure to this state any federal aid contingent upon
compliance with federal laws, or federal rules and regulations
relating to outdoor advertising, and shall be subject to amendment
or rejection by the Legislature of West Virginia:
Provided,
however, That the terms of any such agreement shall be no more
restrictive than those included in any other similar agreement made
by the Secretary of Transportation and other states:
Provided
further, That such agreement shall provide for its modification and
amendment in the event and to the extent that the Secretary of
Transportation and any other state shall thereafter agree to any
provisions which shall be less restrictive. The provisions of this
section shall not apply to signs, displays and devices referred to
in clauses (b) and (c), section seven of this article.
§17-22-9. Signs, displays and devices providing information for
the traveling public; location.
Signs, displays and devices giving specific information in the interest of the traveling public may be erected and maintained,
pursuant to agreement between the Commissioner of Highways and the
Secretary of Transportation, within the rights-of-way of highways
within the federal-aid interstate system, at appropriate distances
from interchanges on such interstate system.
§17-22-10. Special fund.
There is hereby created a special fund, to the credit of which
shall be paid such funds as, from time to time, may be appropriated
by the Legislature and all federal funds allocated and distributed
to the State of West Virginia in implementation of the provisions
of Title 23, United States Code, relating to outdoor advertising,
to be administered by the Commissioner of Highways in the
enforcement and carrying out of the provisions of this article.
§17-22-11. Enforcement of provisions by commissioner; rules and
regulations.
It shall be the function and duty of the Commissioner of
Highways to administer and enforce the provisions of this article,
and in the performance of his or her duties hereunder, he or she
may assign to division engineers, and other employees in his or her
department, such duties as he or she may deem proper. The
commissioner is hereby authorized and empowered to promulgate rules
and regulations implementing the provisions of this article,
including rules and regulations permitting the state of West
Virginia to comply with the provisions of Title 23, United States
Code, relating to the payment of bonuses for the regulation of outdoor advertising adjacent to the interstate system and the terms
and provisions of any agreement heretofore entered into pursuant to
law by and between the Commissioner of Highways of West Virginia
and the Secretary of Commerce of the United States relating to the
payment of such bonuses, any provisions of this article to the
contrary notwithstanding.
§17-22-13. Licenses required; application; expiration; exceptions;
revocations; judicial review.
No person shall engage or continue in the business of outdoor
advertising in this state without first obtaining a license for
outdoor advertising from the commissioner; and no person shall
construct, erect, operate, use, maintain, lease or sell any outdoor
advertising sign, display or device in this state without first
obtaining a license from the commissioner. The commissioner shall
charge an annual license fee in the amount of $125, payable in
advance, for licensees obtaining up to twenty permits. Licensees,
including subsidiaries and affiliates, obtaining twenty-one or more
permits shall pay an annual fee of $1,000, payable in advance.
Applications for licenses, or renewal of licenses, shall be made on
forms furnished by the commissioner and shall contain any pertinent
information required by the commissioner and shall be accompanied
by the annual fee. Licenses granted under this section expire on
June 30 of each year and shall not be prorated. Applications for
the renewal of licenses shall be made not less than thirty days
prior to the date of expiration. Nothing in this section shall be
construed to require any person to obtain a license who constructs, erects, operates, uses or maintains an on-premise sign, display or
device solely on his or her own property at the location of the
advertised business and within limitations established in rules
authorized by section eleven of this article and promulgated in
accordance with state law. The Commissioner of Highways, in his or
her discretion, may propose for promulgation an emergency rule as
provided in article three, chapter twenty-nine-a of this code that
clarifies, explains or implements limitations or restrictions on
the construction, erection, operation, use and maintenance of
outdoor advertising signs, displays and devices. With the prior
written approval of the Commissioner of Highways, a county
commission may enact and enforce outdoor advertising ordinances
which place limitations or restrictions on outdoor advertising
signs, displays or devices which are in addition to or more
restrictive than the limitations or restrictions provided by the
Commissioner of Highways in the emergency rule on this subject.
The commissioner may, after thirty days' notice in writing to
the licensee, make and enter an order revoking any license granted
by him or her upon repayment of a proportionate part of the license
fee, in any case where he or she finds that any material
information required to be given in the application for the license
is knowingly false or misleading or that the licensee has violated
any of the provisions of this article, unless the licensee, before
the expiration of said thirty days, corrects the false or
misleading information and complies with the provisions of this
article. The order shall be accompanied by findings of fact and conclusions of law upon which the order was made and entered. Any
person adversely affected by an order made and entered by the
commissioner is entitled to judicial review of the order. The
judicial review shall be in the circuit court for the county in
which the owner of the sign has his or her principal place of
business in this state, or in the circuit court of Kanawha County
if all parties agree. The judgment of the circuit court is final
unless reversed, vacated or modified on appeal to the Supreme Court
of Appeals of West Virginia. Legal counsel and services for the
commissioner in appeal proceedings in any circuit court and the
Supreme Court of Appeals shall be provided by the Attorney General
or his or her assistants, and in appeal proceedings in any circuit
court by the prosecuting attorney of the county as well, all
without additional compensation. The commissioner may employ
special counsel to represent the commissioner in a particular
proceeding.