Did NC DOT's rules permitting tree removal for billboard and business visibility violate the state Constitution?

NC DOT Tree Removal Rules for Billboard and Business Visibility (NC AG, February 10, 1995)

Plain-English summary

The Attorney General considered whether DOT rules allowing permits for selective removal of vegetation along state highway rights-of-way conflicted with two provisions of the North Carolina Constitution. Most permits were for vegetation blocking billboard views; the opinion estimated that ten to twenty percent were for vegetation blocking business views. DOT had adopted the rules after a General Assembly joint resolution.

On the special privileges question, the AG concluded there was no conflict with Article I, § 32. The opinion relied on the uniform application of the regulation to businesses and billboards on property abutting state highways. It also cited decisions allowing classifications that are not capricious, arbitrary, or unrelated to the end sought. The opinion compared the permits to other rights or permissions the state has given owners whose property abuts public trust lands.

The requester also asked about program costs. The opinion says there was no charge for permits, inspection, or administration, and that charges for such services required legislative authorization. It said the costs did not appear relevant to the constitutional question. The opinion did not say permit holders paid the state to cut trees.

On Article XIV, § 5, the AG observed that "common heritage" was undefined and that state highways were not mentioned. The opinion said it was doubtful that trees in highway rights-of-way fell within that term. It identified the protected lands listed in the State Nature and Historic Preserve framework; highway rights-of-way were not among those listed. This was the AG's view of the constitutional question, not an assessment of every individual permit.

Currency note

This opinion was issued in 1995. Check current DOT rules and statutes before applying its conclusions to a proposed removal today.

Background and statutory framework

The opinion cites the Outdoor Advertising Control Act and the state's stated policy recognizing outdoor advertising as a legitimate commercial use of private property adjacent to highways. It also quotes N.C.G.S. § 136-93, which requires a written permit before a tree or shrub on a state road or highway is planted, trimmed, or removed.

The special privileges clause says no person or set of persons is entitled to exclusive or separate privileges from the community except in consideration of public services. The AG found the DOT regulation had uniform application to the businesses and billboards within its scope. The opinion separately discussed Article XIV, § 5's policy of conserving and protecting land and water for all citizens, then said it was doubtful that the provision's reference to "common heritage" included trees on highway rights-of-way.

Common questions

Q: Did the AG say billboard owners paid a fee for a tree-removal permit?
A: No. The opinion expressly says there was no charge for the permit, inspection, or administration of the program. It says fees for those services required legislative authorization.

Q: Were only billboard owners eligible under the rules reviewed?
A: No. The opinion says permits also covered vegetation blocking the view of businesses adjacent to the highway and estimated that those businesses accounted for ten to twenty percent of permits.

Q: Did the AG declare that every highway tree falls outside constitutional protection?
A: No. The opinion says it is "doubtful" that trees in highway rights-of-way are included in the undefined term "common heritage." It points out that state highways were not mentioned in the constitutional provision or the protected-land lists it reviewed.

Q: Did the opinion approve a particular removal project?
A: No. It answered questions about the DOT regulation's constitutionality, without reviewing an individual permit.

Source

• Landing page: https://ncdoj.gov/opinions/tree-cutting-in-front-of-billboards/

Citations

• N.C.G.S. § 136-93
• N.C.G.S. § 136-127
• N.C.G.S. § 12-3.1(c)
• N.C.G.S. § 150B-19(5)
• N.C.G.S. § 143-260.6, et. seq.
• State v. Fowler, 193 N.C. 290 (1927)
• Town of Emerald Isle v. State of North Carolina, 320 N.C. 640, 652 (1987)
• Motley v. Board of Examiners, 228 N.C. 337, 345 (1947)

Original opinion text

February 10, 1995

Ms. Marie W. Colton
392 Charlotte Street
Asheville, North Carolina 28801

Re: Advisory Opinion; N. C. Const. Art. I, § 32; N. C. Const. Art. XIV, § 5; N.C.G.S. § 136-126, et. seq.; Tree Cutting in front of Billboards; 19A NCAC 02E .0600

Dear Ms. Colton:

This is in response to your request for an opinion concerning the constitutionality of the Department of Transportation regulations which permit the removal of trees on State highway rights of way for views to billboards. Pursuant to a joint resolution of the General Assembly, the Department of Transportation adopted rules and standards for permits for selective removal of screening by vegetation on highway rights of way of businesses and billboards adjacent to the highway. Rules and regulations were adopted in 1982 and filed as part of the Administrative Code. 19A NCAC 02E .0600, et. seq.; Resolution 56, 1981 Sess. Laws. While most of the permits are issued for the removal of trees blocking the view to billboards (and replacement with other vegetation), it is estimated that from ten to twenty percent of the permits are for removal of vegetation blocking the view of various types of businesses. Your primary question concerns the conflict of these regulations with the constitutional rule that prohibits the granting of special privileges. Article I, § 32 of the Constitution.

The Department of Transportation regulates billboards adjacent to Federal-aid highways pursuant to the Outdoor Advertising Control Act. N.C.G.S. § 136-126, et. seq. The General Assembly declared that outdoor advertising is a legitimate commercial use of private property adjacent to State highways and declared that the policy of the State is that outdoor advertising adjacent to State highways "should be controlled and regulated in order to promote the safety, health, welfare … and to promote the reasonable, orderly and effective display of such signs, displays and devices." N.C.G.S. § 136-127. The Department of Transportation exercises control over State highways, and N.C.G.S. § 136-93 provides that no "tree or shrub in or on any such State road or State highway shall be planted, trimmed, or removed" without a written permit.

Much of the rights of way on the Federal-aid system was acquired as easements for highway purposes, while most of the remainder of the rights of way, including interstate highways and other controlled access facilities, was generally acquired in fee simple. The Department of Transportation is authorized to regulate the use of the highway to the exclusion of the underlying fee owners (in case of easements). Abutters have certain common law and statutory rights including access (except on control of access facilities). The vegetation removal policy adopted by the Department however makes no distinction in control of access facilities and others. Generally, in addition to the policy cited, property owners are permitted to landscape and remove trees within the right of way abutting front yards of residences (on non-controlled access facilities). Abutting property owners on non-controlled access highways are also permitted to remove trees on the highway right of way necessary for the construction of residential and commercial driveways.

Article I, § 32 of the N. C. Constitution provides: "No person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services." Similar provisions are found in the constitutions of many states. The test for constitutionality generally applied to the granting of special privileges and immunities is substantially similar to that used in determining whether the equal protection of the laws have been denied by a state. 16A Am. Jur. 2d Constitutional Law § 785. Article I, § 32 of the N. C. Constitution "is more of a general statement of the fundamental inalienable rights of man – equal rights to all, special privileges to none." 33 N.C.L.Rev. 109, 112. The provision "is a guaranty that every valid enactment of a general law applicable to the whole state shall operate uniformly upon persons and property, giving to all under like circumstances equal protection and security and neither laying burdens nor conferring privileges upon any person that are not laid or conferred upon others under the same circumstances or conditions." State v. Fowler, 193 N.C. 290 (1927). A classification which favors a particular group of persons does not necessarily make it an "exclusive or separate emolument or privilege" within the meaning of the N. C. Constitution. Town of Emerald Isle v. State of North Carolina, 320 N.C. 640, 652 (1987). The Legislature may extend the process of classification as far as it deems proper for the purpose of applying the law unless the classification becomes capricious, arbitrary, and without reasonable relationship to the end sought. Motley v. Board of Examiners, 228 N.C. 337, 345 (1947). Based upon the existing case law and treatises reviewed, there appears to be no conflict between the regulation permitting the removal of trees on State highway rights of way and Article I, § 32 of the N. C. Constitution. The statute appears to have a uniform application to businesses and billboards on property abutting State highways.

This office is of the opinion, therefore, that the regulation cited permitting the selective removal of trees on State highway rights of way blocking the view of businesses and billboards on abutting property does not violate Article I, § 32 of the N. C. Constitution. It should be noted that in other similar situations, the common law and the General Assembly have recognized or granted abutting property owners certain rights or permission for the use of other public trust lands. The State grants permits for dredging and filling in State waters by abutting landowners and also permits abutting landowners to build structures in public waters. N.C.G.S. § 146-6; N.C.G.S. § 146-11; N.C.G.S. § 146-12; N.C.G.S. § 146-13. The State also permits other private exclusive use of public trust lands. State ex rel. Rohrer v. Credle, 322 N.C. 522 (1988).

You indicated also some concern that the costs of administering the program for the benefit of billboard owners is not paid for by the billboard owners but is at the State's expense. There is no charge for the permits, inspection or administering the program. Charges for such permits and services are prohibited without legislative authorization. N.C.G.S. § 12-3.1(c); N.C.G.S. § 150B-19(5). While the charging of fees may be in the State's best interest and could be authorized by the General Assembly, the costs do not appear to be relevant to the constitutional issue.

You further raise a question as to the violation of Article XIV, § 5 of the N. C. Constitution that provides that it is the policy of this State to protect its lands and waters for the benefit of all its citizenry. This section of the N. C. Constitution provides in part: It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, open-lands, and places of beauty. N. C. Const. Art. XIV, § 5 (amend. 1972).

This section of our Constitution provides that it is the proper function of government to acquire and preserve "park, recreational and scenic areas" and to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, open-lands and places of beauty. "Common heritage" is not defined and State highways are not mentioned as part of the common heritage. It is doubtful that trees on highway rights of way are included in the term "common heritage". They are not mentioned in the statutes, regulations or the two cases which have cited that section of the Constitution.

The second paragraph of Article XIV, § 5 of the N. C. Constitution, (not herein set out) provides for the General Assembly to prescribe by general law for dedication and preservation of such interest that are to be preserved as part of the "State Nature and Historic Preserve". This was done by the General Assembly through enactment of the "State Nature and Historic Preserve Act". N.C.G.S. § 143-260.6, et. seq. These protected lands expressly include the following: State parks, recreational areas and historical areas, State trails, State natural and scenic rivers, and State natural preserves. 15 NCAC 12D .0106(a). Other protected areas in the "State Nature and Historic Preserve" are provided by N.C.G.S. § 113A-129.1, et. seq.

We trust this answers your questions on this matter. Please contact us if we can be of any further assistance.

Andrew A. Vanore, Jr.
Chief Deputy Attorney General

Eugene A. Smith
Senior Deputy Attorney General