Do the NC Department of Transportation's regulations that let billboard owners (and business owners) pay to have state-owned trees cut down on highway rights-of-way for visibility violate the NC Constitution's special privileges clause or its environmental common-heritage provision?

NC DOT Regulations Allowing Tree Removal for Billboard Visibility Did Not Violate the State Constitution's Special-Privileges or Common-Heritage Clauses (NC AG, February 10, 1995)

Plain-English summary

NC General Assembly member Marie Colton asked the AG to opine on the constitutionality of DOT regulations permitting selective removal of trees on state highway rights-of-way for views of billboards and abutting businesses. The regulations had been adopted in 1982 (19A NCAC 02E .0600) under a 1981 joint resolution of the General Assembly. They allowed an abutting business or billboard owner to obtain a permit for selective vegetation removal. About 80-90% of permits issued were for billboards; the remainder were for businesses.

Two constitutional concerns were raised:

1. Article I, § 32 (no special emoluments or privileges from the community except in consideration of public services). Was the regulation a special privilege for billboard owners?

2. Article XIV, § 5 (common-heritage clause declaring the state's policy to protect lands and waters for the benefit of all citizens, including forests, wetlands, estuaries, beaches, historical sites, open-lands, and places of beauty). Were trees on highway rights-of-way part of the "common heritage" the state must protect from removal for private commercial benefit?

The AG concluded the regulations did not violate either provision.

Article I § 32 analysis. The special-emoluments clause is more general statement of fundamental rights than a specific procedural prohibition. The test is whether the statute or regulation operates uniformly upon persons and property within its scope. State v. Fowler (1927) held that valid general law must "operate uniformly upon persons and property, giving to all under like circumstances equal protection and security." The DOT regulation applied uniformly to anyone owning an abutting business or billboard who could meet the permit criteria. Classification was permissible: Town of Emerald Isle v. State (1987) and Motley v. Board of Examiners (1947) held the legislature may classify as far as it deems proper unless the classification is capricious, arbitrary, or without reasonable relationship to the end sought. The billboard/business classification rested on the legitimate state interest in promoting outdoor advertising and commerce along state highways (declared in § 136-127). No special-privileges violation.

The AG noted that NC routinely grants similar private-use rights on public-trust resources: dredging and filling permits in state waters (§§ 146-6, 146-11, 146-12, 146-13), structure permits in public waters, and private exclusive use of public trust lands (State ex rel. Rohrer v. Credle, 1988). The billboard tree-removal program fit a long tradition of state-authorized private use of public-trust resources under uniformly applicable permit systems.

Article XIV § 5 analysis. The common-heritage clause was adopted by amendment in 1972. It declares the state's policy to conserve and protect lands and waters and to preserve specifically named categories: "forests, wetlands, estuaries, beaches, historical sites, open-lands, and places of beauty." The AG read the list as not extending to highway right-of-way trees. The statutory implementation in the State Nature and Historic Preserve Act (§ 143-260.6 et seq., implementing 15 NCAC 12D .0106(a)) specifies the protected categories: state parks, recreational areas, historical areas, state trails, state natural and scenic rivers, and state natural preserves. Highway rights-of-way are not on that list. Trees within rights-of-way are not "common heritage" within the meaning of the constitutional provision.

The AG also addressed Colton's concern that the program's administrative costs are borne by the state rather than billboard owners. The AG noted that NC law (§ 12-3.1(c), § 150B-19(5)) prohibits charging permit or service fees without legislative authorization. The General Assembly could authorize such fees, but the absence of fees does not make the regulatory scheme unconstitutional under either the special-emoluments or common-heritage clauses. The fee question was a separate policy and legislative matter.

The overall holding: the DOT regulations were constitutionally permissible. The General Assembly's policy choice to favor outdoor advertising visibility as a commercial use of property abutting state highways was within its broad authority to classify and regulate.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. NC's Outdoor Advertising Control Act and DOT vegetation regulations have been amended since 1995; the role of outdoor advertising in state policy has continued to be politically contested; and federal preemption issues (under the federal Highway Beautification Act and 23 U.S.C. § 131) are relevant to any current vegetation-management dispute. A current question about the billboard-visibility tree-cutting program should be analyzed under current state and federal law.

Background and statutory framework

The constitutional and statutory architecture of NC outdoor advertising regulation by 1995 had several layers:

Federal layer. The federal Highway Beautification Act of 1965 (23 U.S.C. § 131) conditioned federal-aid highway funds on state efforts to control outdoor advertising along interstate and primary highways. The federal program required states to remove non-conforming signs, restrict the location of new signs, and meet other requirements. The federal government and the states reached agreements specifying acceptable state regulatory schemes.

State substantive layer. NC enacted the Outdoor Advertising Control Act (§ 136-126 et seq.) to implement federal requirements and to set NC policy on billboards along state highways. Section 136-127 declared that outdoor advertising is "a legitimate commercial use of private property adjacent to State highways" and that the policy of the state is that such advertising "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."

State highway-management layer. Section 136-93 gives DOT general authority over state highways and prohibits planting, trimming, or removing trees in highway rights-of-way without a written permit. This statute creates the legal framework for DOT to control vegetation in rights-of-way.

Implementing regulations. In 1981, the General Assembly adopted Joint Resolution 56 (1981 Sess. Laws) directing DOT to adopt rules and standards for permits for selective removal of screening vegetation on highway rights-of-way. DOT adopted 19A NCAC 02E .0600 in 1982. The regulations established the criteria, fees (originally none), application process, and standards for issuing permits.

Property-rights layer. Much of the federal-aid highway right-of-way was acquired as easements; controlled-access facilities (interstates) were generally acquired in fee simple. DOT regulates vegetation in both. Abutting property owners on non-controlled-access highways had common-law and statutory rights including access (except on controlled-access facilities). Landowners could landscape and remove trees within the right-of-way abutting front yards (on non-controlled-access facilities); they could remove trees needed for residential and commercial driveways. So the right-of-way was not absolute state control; abutter rights coexisted with state authority.

Constitutional limits. Article I § 32 of the NC Constitution prohibits "exclusive or separate emoluments or privileges from the community but in consideration of public services." Article XIV § 5 declares the state's environmental-protection policy.

The 1995 question asked whether the billboard-visibility tree-cutting program crossed either constitutional limit. The AG worked through both.

Article I § 32 analysis. The clause is read as a general equality principle, similar to equal protection. The test for constitutionality of classifications under Article I § 32 is functionally the same as the test under the federal Equal Protection Clause: a classification must bear a reasonable relationship to a legitimate government purpose and must operate uniformly on similarly situated persons.

The AG concluded:
- The DOT regulation applied uniformly to all abutting business and billboard owners who met the permit criteria. There was no exclusionary preference for one billboard company or one business over another.
- The classification (favoring billboards/businesses by allowing visibility-clearing) rested on the legislatively declared state interest in outdoor advertising as a legitimate commercial use of property along state highways (§ 136-127). The classification was rational and reasonably related to that state interest.
- The fact that the right-of-way trees were state-owned and that their removal benefited private commercial interests did not by itself constitute a "special privilege." The state grants permits for many private uses of public-trust resources (dredging, filling, structures in public waters). The pattern is well established in NC law.

Article XIV § 5 analysis. The common-heritage clause's enumerated categories (forests, wetlands, estuaries, beaches, historical sites, open-lands, places of beauty) were the textual hook. The AG read those categories as referring to specific protected lands, not as a catch-all reaching every tree on every highway right-of-way. The statutory implementation in § 143-260.6 et seq. and 15 NCAC 12D .0106(a) limits the protected areas to identified categories (state parks, recreational and historical areas, trails, scenic rivers, natural preserves). Highway right-of-way trees are not on that list.

The AG also noted that the two NC cases citing Article XIV § 5 did not extend the protection to right-of-way trees. The constitutional protection was directed at specific protected categories, not at all state-owned vegetation.

The fee question. The AG noted Colton's separate concern that the program's administrative costs were borne by the state and not by the billboard owners. NC law prohibits charging permit or service fees without legislative authorization. The General Assembly could authorize fees if it wanted; the absence of fees was a policy choice, not a constitutional defect. The cost-allocation question was orthogonal to the constitutional question.

Common questions

Did this opinion approve any particular tree-removal decision?

No. The opinion was about the constitutionality of the regulatory framework in general. Particular DOT decisions on individual permits would have to be evaluated on their own facts and under their own administrative-law standards. A specific tree-cutting decision might be challenged for failing to meet the permit criteria, for being arbitrary on its facts, or for violating other statutes. The constitutional clearance from this opinion did not bless any specific decision.

Did the AG consider whether highway right-of-way trees are a "scenic" resource?

Yes, implicitly. The AG read Article XIV § 5 as targeting specifically-designated protected areas (state parks, scenic rivers, etc.), not all visible state-owned vegetation. Whether a particular stretch of highway is "scenic" in a broader sense was outside the constitutional analysis. If the General Assembly designated a scenic byway with explicit protections for right-of-way vegetation, that designation would matter; in the absence of such designation, ordinary right-of-way trees were not covered.

Could the General Assembly bar selective tree-cutting on environmental grounds?

Yes. The constitution does not require the state to permit tree-cutting for billboard visibility; it merely permits the existing regulatory scheme. The General Assembly could adopt a more restrictive policy, prohibit selective cutting for visibility, or designate specific corridors as protected scenic byways. Those would be policy choices within the legislature's authority.

What about scenic byways designated under state or federal programs?

A scenic byway with specific vegetation-protection provisions would override the general DOT permit program. NC's North Carolina Scenic Byways Program (administered by DOT) and the federal National Scenic Byways Program both involve vegetation considerations. A current vegetation-management dispute on a designated byway would involve those specific designations.

Did the AG opine on whether billboards themselves are protected as commercial speech?

No. The First Amendment commercial-speech doctrine was relevant background but not the question presented. The 1995 opinion focused on the state-constitutional questions about the tree-cutting regulation, not on federal First Amendment protections for the billboards themselves.

What is the practical effect of the "abutter" framework?

The opinion noted that abutting property owners on non-controlled-access highways already had certain rights to remove vegetation in front of their property (for landscaping, driveways, etc.). The billboard-visibility program extended a similar permit-based right to billboard owners who abutted the highway. The abutter framework was not unique to billboards; it reflected the general NC pattern of accommodating abutter interests within state highway right-of-way.

Source

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

Citations

• N.C. Const. Art. I, § 32 (special emoluments/privileges)
• N.C. Const. Art. XIV, § 5 (common heritage)
• N.C. Gen. Stat. § 136-93 (no tree planting/removing in right-of-way without permit)
• N.C. Gen. Stat. § 136-126 et seq. (Outdoor Advertising Control Act)
• N.C. Gen. Stat. § 136-127 (policy declaration on outdoor advertising)
• N.C. Gen. Stat. §§ 146-6, 146-11, 146-12, 146-13 (state grants for dredge/fill and structures)
• N.C. Gen. Stat. § 12-3.1(c) (no fees without legislative authorization)
• N.C. Gen. Stat. § 150B-19(5) (administrative-procedure limits on fees)
• N.C. Gen. Stat. § 143-260.6 et seq. (State Nature and Historic Preserve Act)
• N.C. Gen. Stat. § 113A-129.1 et seq. (additional preserved areas)
• 19A NCAC 02E .0600 et seq. (DOT vegetation removal regulations)
• 15 NCAC 12D .0106(a) (State Nature and Historic Preserve protected areas)
• 1981 Sess. Laws Res. 56 (joint resolution authorizing the regulation)
• State v. Fowler, 193 N.C. 290 (1927)
• Town of Emerald Isle v. State of North Carolina, 320 N.C. 640 (1987)
• Motley v. Board of Examiners, 228 N.C. 337 (1947)
• State ex rel. Rohrer v. Credle, 322 N.C. 522 (1988)

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