BEFORE THE DEPARTMENT OF TRANSPORTATION

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rules I and II, amendment of ARM 18.7.102, 18.7.104, 18.7.105, and repeal of ARM 18.7.101, 18.7.103, 18.7.105A, 18.7.106, 18.7.107,and 18.7.108 pertaining to Highway Right-of-Way Encroachment Permits

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NOTICE OF PROPOSED ADOPTION, AMENDMENT, AND REPEAL   NO PUBLIC HEARING CONTEMPLATED

 

TO: All Concerned Persons

 

1. On November 9, 2014, the Department of Transportation proposes to adopt, amend, and repeal the above-stated rules.

 

2. The Department of Transportation will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Transportation no later than 5:00 p.m. on October 30, 2014, to advise us of the nature of the accommodation that you need. Please contact Doug McBroom, Maintenance Division, Department of Transportation, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6157; fax (406) 444-7684; TDD/Montana Relay Service 1-800-335-7592; or e-mail dmcbroom@mt.gov.

 

3. The rules as proposed to be adopted provide as follows:

 

            NEW RULE I  GENERAL REQUIREMENTS  (1) The construction of new or modified device or object encroachments shall be the responsibility of the permittee and shall be constructed in conformance with the applicable regulations and manuals, as approved by the department, at the permittee's sole expense.

            (2) During the progress of right-of-way work or occupancy, the permittee must erect and maintain such barricades, signs, and other traffic control devices as may be deemed necessary by the department.

            (3) The permittee is responsible for completing any environmental documentation required by the department at the permittee's sole expense.

            (4)  The permittee is responsible for any changes, maintenance, or repairs to existing encroachments deemed necessary by the department at the permittee's sole expense.

            (5) The permittee must furnish all materials necessary for the construction of the device or object encroachment authorized by the permit. All materials must be of satisfactory quality, and are subject to inspection and approval by the department.

            (6)  It is the responsibility of the permittee to supply, place, and properly construct an approved device or object encroachment, or upgrade a retroactively approved encroachment, in accordance with department design and safety standards, and all appropriate department manuals.

            (7)  Drainage in highway ditches must not be altered or impeded except as authorized and approved by the department. The permittee is responsible for any damage to highway right-of-way or adjacent landowners' property caused by unapproved drainage encroachments into highway right-of-way, at the permittee's sole expense.

            (8)  The permittee is responsible for any changes, maintenance, or repairs to existing encroachments deemed necessary by the department, at the permittee's sole expense.

  (9)  The department may make any changes, additions, repairs, or relocations to any encroachment or its appurtenances within the highway right-of-way, at the permittee's sole expense.

            (10) Existing device or object encroachments which are granted either a retroactive new permit, or a permit for a change in condition, may be inspected by the department for compliance with department design and safety standards.

            (11)  Any device or object encroachment which does not meet department design and safety standards is subject to removal by the owner at the owner's sole expense, after department revocation of the encroachment permit.

            (12)  The permittee is responsible for all repairs to the highway or within the right-of-way resulting from the activities of the encroachment, at the permittee's sole expense. Additionally, the permittee must reimburse the department for any expense incurred in repairing the surface of the roadway or right-of-way due to any damage as a result of the occupancy or work performed under the permit (e.g., settlement at installation site).

            (13)  If the department makes changes, additions, repairs, or relocations to the highway within the highway right-of-way, which conflict with a permitted encroachment, the encroachment permit may be temporarily or permanently revoked by the department, at the department's sole discretion.

            (14) The permittee is responsible for any damage or injury to a third party or department facilities caused by the permittee's installation, maintenance, repair, or actions under a department-issued encroachment permit, at the permittee's sole expense.

 

AUTH: 60-2-201, MCA

IMP: 60-2-201, 60-5-101, 60-5-104, 60-5-105, 60-6-101, MCA

 

REASON: The proposed new rule is necessary to establish encroachment general requirements which must be followed by the permit holder when constructing or upgrading an encroachment. The proposed new rule will allow the public to ascertain the department's requirements for construction of an encroachment as well as future maintenance. The proposed new rule will also clarify that the department may revoke the encroachment permit if a future highway project requires use of that portion of the right-of-way.

 

            NEW RULE II ENFORCEMENT (1)  The permittee shall hold harmless the department and its agents and employees against any action for personal injury or property damage sustained by reason of exercise of the permit.

            (2) A decision to grant, deny, or revoke an encroachment permit is solely within the discretion of the department.

            (3)  The owner of an existing private encroachment who does not have a department-issued encroachment permit may retroactively apply for an encroachment permit.

            (4)  If a retroactive encroachment permit application is denied by the department, the existing encroachment must be removed, at the encroachment owner's sole expense, within two days after the permit denial.

  (5)  Any person proposing a change in encroachment use of highway right-of-way must obtain a new encroachment permit from the department.

  (6)  A non-permitted encroachment, not affixed permanently to the land, must be removed by the encroachment owner within two days after notice from the department, unless a retroactive permit is applied for by the encroachment owner and approved by the department.

  (7) A non-permitted encroachment, which is affixed to the land, must be removed by the encroachment owner within five days after notice from the department, unless a retroactive permit is applied for by the encroachment owner and approved by the department.

  (8) A non-permitted encroachment, whether or not affixed to the land, and not timely removed by the owner after notice, may be removed by the department under 60-6-104 and 60-6-105, MCA.

  (9) If a non-permitted encroachment obstructs or prevents the use of the highway for vehicles, or constitutes a safety hazard to the traveling public, the department may immediately remove the encroachment without giving notice to the encroachment owner.

 

AUTH: 60-2-201, MCA

IMP: 60-2-201, 60-6-101, 60-6-102, 60-6-103, 60-6-104, 60-6-105, 61-8-706, MCA

 

REASON: The proposed new rule is necessary to set forth the enforcement abilities of the department. The rule will clarify for the public that the permit holder must hold the department harmless for any damage or injuries which may result from the presence of the encroachment. The rule will also set forth the ability to apply for a permit retroactively, when an encroachment is later discovered on highway right-of-way, or when a change in use of the encroachment occurs. The rule will also outline the department's authority to give notice and remove non-permitted encroachments, as well as immediately remove those non-permitted encroachments which constitute an obstruction or safety hazard to the public.

 

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            18.7.102  APPLICATION OF POLICY ENCROACHMENT PERMITS  (1)  This policy applies to all private structures, devices, and facilities placed upon, over, or under the right-of-way of highways under the jurisdiction of the Department of Highways except:

(1) Any person or entity proposing to encroach on a highway right-of-way within the jurisdiction of the department must obtain an encroachment permit from the department. 

(2) An encroachment is any installation, device, object, or occupancy that is located at, above, or below the grade lines of the highway and within the right-of-way limits, and that is not installed as part of the highway facility by the department.

(3) Encroachment permits are not required for the following uses, which require a separate department-issued permit for the appropriate use:

(a)  Utility facilities occupying right-of-way pursuant to regulations. department-issued utility encroachment permits or utility occupancy agreements; or

(b)  Private driveways, road approaches, and curb cuts administered pursuant to "Approach Standards for Montana High-ways." occupying right-of-way pursuant to department-issued approach permits.

(c)  Other occupancy of right-of-way as presently permitted and covered by revocable encroachment permit.  Examples of occupancy allowed under revocable permit include private water, sewer, electric, natural gas, and communications lines and private irrigation facilities and related installations.

(d)  Individual facilities, (farm fences), specifically permitted to occupy highway right-of-way under existing use permit procedures.

(4) Encroachment permits may be issued for uses including:

(a) devices or objects placed within right-of-way limits (e.g., fence encroachment permits, landscaping encroachment permits); or

(b) physical occupancy of the right-of-way by persons or groups of persons (e.g., special use permits, foraging permits). 

(5)  Application for an encroachment permit must be made to the appropriate district or area office. The form may be found on the department's web site at www.mdt.mt.gov. Paper copies of the application may also be obtained by request to the appropriate district office. 

(6) Applicants must be the owner of the property abutting the right-of-way at the encroachment's proposed location, a government agency, the contractor proposing to conduct work in the right-of-way, or an individual or designated group leader of persons who will temporarily occupy the right-of-way. The application must be signed by the applicant or representative.

(7) For device or object encroachment permits, a site plan drawing with sufficient detail must be provided to show the location of the proposed encroachment. The site plan must be tied to the nearest highway milepost or station marker.

(8)  For device or object encroachment permits, the applicant must:

(a)  submit a detailed drawing of the proposed encroachment;

(b)  submit an environmental checklist contained within the form; and

(c)  agree to the terms and conditions on the permit.

(9)  Each application must be complete and accompanied by all required supplemental materials.  The department will not review or approve a permit application until all necessary information has been provided.  The department reserves the right to reject ineligible, incomplete, or otherwise improper applications. 

(10)  The department may set a time limit for placement of the requested encroachment. Failure to construct the encroachment or occupy the right-of-way within the specified time limit will terminate the encroachment permit and require the applicant to re-apply.

(11)  Construction work of the encroachment within highway right-of-way limits must not commence until an approved permit has been issued.

 

AUTH:  60-3-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

IMP:  60-3-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

 

REASON: The proposed amendment is necessary because the Montana Department of Transportation's biennial rule review under 2-4-314, MCA, identified the need to update archaic language and procedures which are no longer in use by the department. The proposed rule amendments will clarify the requirement that an encroachment permit must be obtained, as well as the two categories of possible right-of-way occupants which will require separate permits from the department. The proposed rule amendments are also necessary to establish a process for application for encroachment of highway right-of-way via department-issued encroachment permits. The current process is scattered throughout current administrative rules, some of which are now proposed for repeal. The proposed rule amendments will allow the public to understand and follow the encroachment permit application and review process.

 

18.7.104  ENCROACHMENTS ON CONTROLLED ACCESS HIGHWAY

RIGHT-OF-WAY  (1)  No private use of right-of-way of highways under the jurisdiction of the Department of Highways department shall be allowed within and between the access control limits of a controlled access highway except as noted below:

(a)  The Director of Highways or his assign the department may approve individual private encroachments within the controlled access right-of-way, provided with prior concurrence is obtained from the Federal Highway Administration, for each such encroachment.;

(b)  As a minimum requirement, encroachment encroachments within controlled access right-of-way must conform to the all department statutes, rules, and design standards set forth in ARM 18.7.201 through 18.7.241.; and

(c)  the facility encroachment must be constructed, and maintained, and be capable of being removed allow removal from the area outside of the access control limits.

 

AUTH:  60-3-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

IMP:  60-3-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

 

REASON: The proposed amendments are necessary because the Montana Department of Transportation's biennial rule review under 2-4-314, MCA, identified the need to update archaic language in the rule and clarify for the public the situations in which encroachments on a controlled-access highway would be allowed.

 

            18.7.105  ENCROACHMENTS ON NON-CONTROLLED ACCESS HIGHWAY RIGHT-OF-WAY 

          (1)  No private use of non-controlled access highway right-of-way shall be allowed, except as specified below: under department-issued encroachment permits.

(a) remains the same but is renumbered (2).

(i)(a)  the overhanging device is within an incorporated city, or is under the jurisdiction of another local unit of government which has ordinance ordinances or regulations allowing such overhang, and the overhanging device is in compliance with such ordinances or regulations.;

(ii)(b)  the overhanging device does not conflict with, or interfere with, traffic control signs, signals, or other devices, or with highway construction or maintenance operation operations, or with the public's use of the right-of-way.;

(iii)(c)  ground-mounted structures supporting the overhanging device must be located entirely off the public right-of-way.; and

(iv) remains the same but is renumbered (d).

(b)(3)  Underground Encroachments - Private underground facilities other than utilities, such as vaults, access and transportation tunnels, and sidewalk freight entrances may be allowed within the public highway right-of-way, provided:

(i)(a)  the underground facility is located within an incorporated city, or is under the jurisdiction of another local unit of government which allows such use under promulgated ordinances or regulations, or by special agreements.;

(ii)(b)  the underground facility is in compliance with such the local jurisdiction's ordinances, regulations, or special agreements.;

(iii) (c)  the ordinance, regulation, or special agreement allowing such underground use of the public right-of-way contains a revocation clause requiring that the owner shall either remove the encroaching facility at his the owner's sole expense, or pay any difference in costs of construction upon receiving appropriate notice that removal or adjustment is deemed necessary and must be accomplished.; and

(iv)(d)  the facility does not incommode or interfere with highway construction or maintenance operations, or with the use of the right-of-way by the traveling public.

(c)(4) Above Ground Use At-grade Encroachments and Maintenance of Area Adjacent to Traveled Way - Private and public noncommercial use and maintenance of at-grade highway right-of-way may include, but is not limited to the following:

(a) General object or device encroachment permits may be allowed in the right-of-way provided the design is reviewed and approved by the department.  At-grade objects or devices may include, but are not limited to, fences, gates, buildings, signs, markers, or other structures.

(b)  Landscaping may be allowed in the right-of-way when the area between the property line and the curb line is proposed by abutting property owners for planting trees, shrubs, grass, and similar uses may be allowed, provided:

(i)  Such the use is generally allowed within the city or other area under the jurisdiction of a local unit of government.;

(ii)  the use is not commercial or for profit and does not incommode or interfere with highway construction or maintenance operations, or with the public use of the right-of-way.;

(iii)  Such the trees, shrubs, or other vegetation are of species that will not injure damage the street, curbs, or sidewalks.; and

(iv)  Such the use complies with applicable safety policies or standards adopted and promulgated by the American Association of the State Highway and Transportation Officials (AASHTO). A copy of the AASHTO standards may be obtained from the department.

(v)  Additional desired objectives are:

(A)  Such plantings should be sufficiently deep-rooted to prevent injury to sidewalks and curbs.

(B)  Trees should not be allowed in areas where the posted speed limit exceeds twenty-five (25) miles per hour.

(C)  The diameter of tree trunks should not exceed six (6) inches when measured at a point two (2) feet above the base of the tree at ground level.

(D)  Trees should be pruned or trimmed so that they will not obscure traffic signs and signals nor overhang the traveled way below an elevation of thirteen feet, eight inches (13 ft., 8 in.) above the traveled way of the highway.

(E)  Bushes and shrubs should not be allowed in areas where the posted speed limit exceeds thirty-five (35) miles per hour.

(F)  Bushes and shrubs should not exceed eighteen (18) inches in height in the vicinity of intersections, railroad grade crossings, or in other areas where unimpaired lateral sight distance is an important consideration.

(G)  Bushes and shrubs should be maintained so they do not overhang curbs or sidewalks.

(c) Bus shelters may be allowed in the right-of-way in urban areas provided the design is reviewed and approved by the department. Commercial advertising on bus shelters must comply with department outdoor advertising control rules.

(d) Mailboxes may be allowed in the right-of-way, but must meet standards defined and reviewed by the department.

(d)(e)  Mail boxes and newspaper deliver Other delivery boxes that such as newspaper boxes may be allowed in the right-of-way, but must comply with the department standards and rules in this sub-chapter.

(5) Occupancy Encroachments - Private and public noncommercial occupancy and use of highway right-of-way by individuals or groups of individuals may include, but is not limited to:

          (a) special use permits (e.g., parades, pedestrian, or bicycle events);

          (b) encroachment permits for work to be conducted within highway right-of-way limits; or

          (c) foraging permits, for harvesting of agricultural crops within the highway right-of-way limits.

(6) Other types of encroachments not listed in the rules may be reviewed on a case-by-case basis and the department may issue an encroachment permit as appropriate.

 

AUTH:  60-3-101, 60-6-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

IMP:  60­3-101, 60-6-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

 

REASON: The proposed rule amendments are necessary because the Montana Department of Transportation's biennial rule review under 2-4-314, MCA, identified the need to update archaic language in the rule.  The proposed rule language will categorize the various types of encroachment permits which are issued by the department, to better assist the public in understanding when an encroachment permit may be required for occupancy or placement of objects within the highway right-of-way.  The proposed amendments will also delete technical information on tree and shrub planting as encroachments, as this information is already contained in the other department manuals. The proposed amendments are also necessary to specifically address the addition of bus shelters and the presence of mail boxes and newspaper delivery boxes on highway right-of-way.

 

5. The department proposes to repeal the following rules:

 

18.7.101  GENERAL POLICY

 

AUTH:  60-3-101, MCA

IMP:  60-3-101, MCA

 

REASON:  The proposed repeal is necessary because the Montana Department of Transportation's biennial rule review under 2-4-314, MCA, identified the rule as archaic. Regulation and authority for removal of highway right-of-way encroachments is already set forth in statute at Title 60, chapter 6, part 1, MCA.

 

            18.7.103 ADMINISTRATION OF ENCROACHMENT POLICY

 

AUTH:  60-3-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

IMP:  60-3-101, 61-8-203, 61-8-706(1), 61-9-712, MCA

 

REASON: The proposed repeal is necessary because the Montana Department of Transportation's biennial rule review under 2-4-314, MCA, identified the rule as archaic. The department no longer follows the procedure outlined in ARM 18.7.103 for control of right-of-way encroachments.

 

            18.7.105A MAILBOXES AND NEWSPAPER DELIVERY BOXES

 

AUTH: 60-6-101, MCA

IMP: 60-6-101, MCA

 

REASON: The proposed repeal is necessary because the Montana Department of Transportation's biennial rule review under 2-4-314, MCA, identified the rule as archaic. The department's standards for mailbox and newspaper delivery boxes in the right-of-way are contained in the department's detailed drawings. The department no longer uses the construction standards set forth in this outdated rule.

 

            18.7.106 HARDSHIP CASES

 

AUTH: 60-3-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

IMP:  60-3-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

 

REASON: The proposed repeal is necessary because the Montana Department of Transportation's biennial rule review under 2-4-314, MCA, identified the rule as archaic. The department's issuance of encroachment permits is no longer subject to hardship exceptions or term-limited encroachment agreements.

 

            18.7.107  CONDITIONAL AGREEMENT FOR BUILDINGS AND FUEL PUMPS

 

AUTH: 60-3-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

IMP:  60-3-101, 61-8-203, 61-8-706(1), 61-8-712, MCA

 

REASON: The proposed repeal is necessary because the Montana Department of Transportation's biennial rule review under 2-4-314, MCA, identified the rule as archaic. The department no longer issues conditional agreements for building and fuel pump encroachments, but instead uses the same standards for evaluation of all encroachment permit applications, regardless of type of encroachment.

 

            18.7.108 APPLICATIONS AND PERMITS

 

AUTH: 60-3-101, 61-8-203, 61-8-706(1), 68-8-712, MCA

IMP:  60-3-101, 61-8-203, 61-8-706(1), 68-8-712, MCA

 

REASON: The proposed repeal is necessary because the Montana Department of Transportation's biennial rule review under 2-4-314, MCA, identified the rule as archaic. The department no longer uses the forms contained in this rule, as the current encroachment permit application is located on the department's web site for availability to the public.

 

6. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Doug McBroom, Maintenance Division, Department of Transportation, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6157; fax (406) 444-7684; or e-mail dmcbroom@mt.gov, and must be received no later than 5:00 p.m., November 6, 2014.

 

7. If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Doug McBroom at the above address no later than 5:00 p.m., November 6, 2014.

 

8. If the agency receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 25 persons based on the approximately 250 encroachment permits issued in 2014.

 

9. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department. An Administrative Rules Notice Interested Person's List request form is located at the Department of Transportation's web site at the following address: http://www.mdt.mt.gov/publications/docs/forms/mdt-leg-003_interested-persons-list.pdf.

 

10. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of this notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

11.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

12. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ Carol Grell Morris                                    /s/ Michael T. Tooley                       

Carol Grell Morris                                         Michael T. Tooley

Rule Reviewer                                              Director

                                                                   Department of Transportation

 

Certified to the Secretary of State September 29, 2014.