Senate Bill No. 472
(By Senators Unger, Green, Caruth and Stollings)
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[Introduced March 5, 2009; referred to the Committee on
Transportation and Infrastructure; and then to the Committee on
the Judiciary.]
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A BILL 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; (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
state road 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
state road 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 chapter fifty-four,
article two, section eighteen 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 the Department of Highways 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 state road
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
State Road Commissioner of West Virginia and the Secretary of
Transportation of the United States, may be erected and maintained
within six hundred and 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
state road 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
state road 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
state road 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) of 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
state road 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
state road 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
state road
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
state road 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
outdoor advertising sign,
display or device solely on his or her own property 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.
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.
NOTE: The purpose of this bill is to revise current
restrictions on outdoor advertising on on-premise signs along all
highways within the state.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.