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Montana Administrative Register Notice 18-153 No. 23   12/11/2014    
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BEFORE THE TRANSPORTATION COMMISSION

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 18.6.202, 18.6.203, 18.6.205, 18.6.206, 18.6.211, 18.6.212, 18.6.215, 18.6.231, 18.6.239, 18.6.251, 18.6.252, pertaining to Outdoor Advertising Control

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NOTICE OF PROPOSED AMENDMENT

 

NO PUBLIC HEARING CONTEMPLATED

 

TO: All Concerned Persons

 

1. On January 12, 2015, the Transportation Commission proposes to amend the above-stated rules.

 

2. The Transportation Commission 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 December 31, 2014, to advise us of the nature of the accommodation that you need. Please contact Patrick J. Hurley, Department of Transportation, Outdoor Advertising Control, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6068; fax (406) 444-7254; TTY Service (406) 444-7696 or (800) 335-7592; or e-mail phurley@mt.gov.

 

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

 

            18.6.202 DEFINITIONS (1) and (1)(a) remain the same.

            (b) the sign has been without a message, or contained sign leasing information only, for a period of at least six months;

            (c) through (2) remain the same.

  (3) "Agricultural, forestry, grazing, farming, and related Activity activity" means any activity on improved or unimproved land directly related to the production of crops, dairy products, poultry, or livestock; any activity directly related to the cultivation or harvesting of trees; or any activity directly related to fish farms.  The term does not include commercial businesses which sell products or provide services directly or indirectly to agricultural, forestry, grazing, or farming entities, and whose products and services are available to the general public, including but not limited to farm and ranch supply stores and veterinary clinics.

            (4) through (28) remain the same.

            (29) "Mobile advertising device" or "car wrap" or "taxi display" means devices displayed on vehicles that may independently become part of traffic flow, or may be parked at specific locations, and which are capable of being transported over public roads and streets whether or not it is so transported.  The term includes devices displayed on other portable or movable objects or animals.

            (30) through (42) remain the same.

            (43) "Sign structure" means an advertising device including the sign face, base or apron, supports, and other structural members poles, bracings, lateral supports, and other material of every kind and nature used to support a face or surface on which outdoor advertising is placed, whether located on or attached to the surface of the earth or to a man-made structure.

            (44) through (49) remain the same.

 

AUTH:  75-15-121, MCA

IMP:  75-15-103, 75-15-111, 75-15-112, 75-15-113, 75-15-121, MCA

 

REASON:  The proposed amendments are necessary to clarify definitions used throughout this subchapter. The proposed amendment to (1)(b) will clarify that sign face information listing the sign itself as "for lease" for at least six months will not qualify as required copy, but will allow the sign to be considered as an abandoned sign. Federal and state statutes do not allow abandoned signs to remain in a permitted location. The proposed amendment to (3) will expand the definition of "agricultural activity" to exclude commercial businesses who may sell products or services to agricultural businesses such as farms or ranches. Many commercial businesses deal in agricultural products, but the business location itself may still qualify for a permitted off-premise sign location if the agricultural products or customers are only a part of the larger commercial business. The proposed amendment to (29) is necessary to expand the definition of "mobile advertising devices" to include other portable objects or animals as items upon which off-premise advertising must not be placed. The proposed amendment to (43) is necessary to expand the definition of "sign structure" to list other sign parts which are considered part of the sign structure when evaluating whether sign maintenance or repairs are allowed to conforming and nonconforming signs.

 

            18.6.203 UNZONED COMMERCIAL ACTIVITY (1) through (1)(d) remain the same.

            (e) a commercial activity must be connected to one or more utilities and shall be occupied and open have at least one employee available at the activity site at least to the public during regularly scheduled hours in excess of 20 hours per week, distributed over five days per week;

            (f) through (i) remain the same.

            (j) a commercial business shall hold a current, valid business license issued by a local, county, or state government which authorizes the business to operate from that location. If no business license is required for the location, a government-issued authority for the business operation (e.g., State DEQ permit or Secretary of State business registration), which establishes the length of time for the business operation, may be substituted with department approval;

            (k) and (l) remain the same.

            (2) A maximum of two signs shall may be permitted from a qualifying activity and its structure or building, regardless of the number of separate qualifying commercial activities conducting business from the same structure or building

(3) The signs must meet the following requirements:

(a)  The sign(s) shall be located on the same side of the controlled highway as the qualifying activity, unless the property is separated from the controlled highway by a frontage, access, or other type of road parallel to the controlled highway.;

(b)  If the property is located adjacent to a parallel road, the sign(s) shall be located on the same side of the parallel road as the qualifying activity, and shall not be located between the parallel road and the controlled highway.

            (3)(4)  Unzoned commercial areas are not created when:

            (a) through (c) remain the same.

            (d) spot-zoning or strip-zoning of an area, solely or primarily for the displaying of outdoor advertising has occurred.; or

            (e) a commercial activity is established on the location solely or primarily to qualify the location for outdoor advertising.

            (4) remains the same, but is renumbered (5).

 

AUTH: 75-15-121, MCA

IMP:  75-15-103, 75-15-111, 75-15-113, MCA

 

REASON: The proposed amendments are necessary to clarify the establishment of unzoned commercial activities which may qualify a location for an off-premise outdoor advertising permit. The proposed amendments will address situations which may create confusion for future permit applicants, including: availability of business employees at the business location; requirement of a government-issued business license or alternative permit or registration which establishes at least a one year length of business operation; limit of two permitted signs on any location, regardless of the number of separate businesses on the site; failure of establishment of unzoned commercial areas by prohibited activities; and failure of establishment of unzoned commercial areas by sham businesses which do not later operate on the site.

 

            18.6.205 OFF-PREMISE SIGNS - LOCATIONS - COMPLIANCE WITH STATUTES, RULES, ORDINANCES (1) through (5) remain the same.

            (6) Local transit authority bus shelters erected within the right-of-way on controlled routes, under an approved department encroachment permit, may display and maintain commercial advertisements, without obtaining an outdoor advertising permit, subject to the following requirements:

            (a) commercial advertisements may only be placed on interior shelter panels with font size and message intended for viewing by shelter occupants, with only incidental visibility to the traveling public;

            (b) commercial advertisements must not exceed 24 square feet on each shelter panel;

            (c) commercial advertisements must not be placed on the roof of the shelter; and

            (d) commercial advertisements must not be placed on the exterior sides of the shelter.

            (6) and (7) remain the same but are renumbered (7) and (8).

 

AUTH:  75-15-121, MCA

IMP:  75-15-111, MCA

 

REASON: The proposed amendment is necessary to address requests for commercial advertising on bus shelters which may be erected within the right-of-way on controlled routes. The proposed amendment will cross reference the department's encroachment permit process to ensure all standards for safety of encroachments within the right-of-way are met before advertising is considered on the bus shelter. The proposed amendment will also list the requirements necessary for commercial advertising within a bus shelter, to ensure the ads conform to a standard size, and are visible to the bus shelter occupants only, and not to the traveling public, which would trigger the need for issuance of an outdoor advertising permit.

 

            18.6.206 UNZONED INDUSTRIAL ACTIVITY (1) through (1)(f) remain the same.

            (g) an industrial activity shall hold a current, valid business license issued by a local, county, or state government which authorizes the industrial activity to operate from that location;. If no business license is required for the location, a government-issued authority for the business operation (e.g., State DEQ permit or Secretary of State business registration), which establishes the length of time for the business operation, may be substituted with department approval;

            (h) and (i) remain the same.

            (2) A maximum of two signs shall may be permitted from a qualifying industrial activity and its structure or building, regardless of the number of separate qualifying industrial activities conducting business from the same structure or building.

(3) The signs must meet the following requirements:

            (a) The sign(s) shall be located on the same side of the controlled highway as the qualifying activity, unless the property is separated from the controlled highway by a frontage, access, or other type of road parallel to the controlled highway. 

(b) If the property is located adjacent to a parallel road, the sign(s) shall be located on the same side of the parallel road as the qualifying activity, and shall not be located between the parallel road and the controlled highway.

            (3)(4) Unzoned industrial areas are not created when:

            (a) remains the same.

            (b) an industrial activity is engaged in or established primarily for the purpose of qualifying an area for the displaying of outdoor advertising; or

            (c) spot-zoning or strip-zoning of an area solely or primarily for the display of outdoor advertising has occurred.; or

            (d) an industrial activity is established on the location solely or primarily to qualify the location for outdoor advertising.

            (4) and (5) remain the same, but are renumbered (5) and (6).

 

AUTH: 75-15-121, MCA

IMP:  75-15-103, 75-15-111, 75-15-113, MCA

 

REASON: The proposed amendments are necessary to clarify the establishment of unzoned industrial activities which may qualify a location for an off-premise outdoor advertising permit. The proposed amendments will address situations which may create confusion for future permit applicants, including: requirement of a government-issued business license or alternative permit or registration which establishes at least a one-year length of business operation; limit of two permitted signs on any location, regardless of the number of separate businesses on the site; failure of establishment of unzoned industrial areas by prohibited activities; and failure of establishment of unzoned industrial areas by sham businesses which do not later operate on the site.

 

18.6.211 PERMITS (1) through (4) remain the same.

(5) Signs shall be assigned a permit number and given a permanent identification plate that must be attached to the structure. The permit plate must not be leased to any other party. Permit plates remain the property of the department and shall be returned to the department upon relinquishment or revocation of the permit or upon request of the department.

(6) through (8) remain the same.

          (9) Ownership of a sign permit may must not be transferred without the express written consent of the permit holder(s), on a form provided by the department, within 30 days of the transferFailure to provide the transfer form within 30 days may result in voiding any transfer or revocation of the permit. The current permit holder(s) must sign the form transferring the permit. Only off-premise commercial advertising sign permits may be transferred. Temporary, church and service club, directional, cultural, noncommercial, political, and official signs shall must not be transferred, but may be terminated by permit holder request or department action.

            (10) and (11) remain the same.

 

AUTH: 75-15-121, MCA

IMP:  75-15-122, MCA

 

REASON: The proposed amendment to (5) is necessary to clarify the prohibition on lease of a permit plate from a permit holder to any other party. The proposed amendment to (9) is necessary to set a 30-day requirement for receipt of the required permit transfer form. The department has not been receiving transfer forms in a timely manner, and thus must impose a deadline and penalty to ensure compliance with the transfer rule.

 

            18.6.212 PERMIT APPLICATIONS - NEW SIGN SITES (1) through (4)(g) remain the same.

            (h) a scale drawing with all details of the proposed sign structure, including accurate dimensions, and a photograph of the staked location, taken contemporaneously with the date of the application. All measurements must be from the outer edges of the regularly used buildings, parking lots, storage or processing and landscaped areas of the commercial or industrial activities, not from the property lines of the activities, and must be along or parallel to the edge of the pavement of the highway.

            (5) through (5)(b) remain the same.

            (c) a business license issued by a local, county, or state government authorizing the business to operate at the qualifying location, when the application is for a site located in an unzoned commercial or industrial area. If no business license is required for the location, a government-issued authority for the business operation (e.g., State DEQ permit or Secretary of State business registration), which establishes the length of time for the business operation, may be substituted with department approval.

            (6) and (7) remain the same.

            (8) Each application must be complete and accompanied by all required supplemental materials. The department reserves the right to reject ineligible, incomplete, or otherwise improper applications. Rejected applications will be returned to the applicant for correction of identified deficiencies by the applicant.

 

AUTH: 75-15-121, MCA

IMP: 75-15-122, MCA

 

REASON: The proposed amendments are necessary to inform permit applicants of application processes including: insertion of a photograph requirement for use in evaluating permit applications; reiterating the business license requirement and exception language to be consistent with ARM 18.6.203 and 18.6 206; and imposing a procedure for rejection and return of incomplete applications.

 

            18.6.215 FEES (1) and (2) remain the same.

            (3) The fees shall be as follows:

            (a) Inspection fee (must accompany the sign permit application)      $100.00 150.00

            (b) through (d) remain the same.

 

AUTH: 75-15-121, MCA

IMP:  75-15-122, MCA

 

REASON: The proposed amendment will increase the inspection fee from $100.00 to $150.00. The fee increase is necessary to cover the department's increased costs of staff and travel time to travel to often-distant sign locations and complete the necessary inspection. The proposed fee increase will impact approximately 30 permit applicants, based on the 30 applications in 2013, resulting in a revenue increase of approximately $1500 annually.

 

18.6.231 OFF-PREMISE SIGN STANDARDS (1) remains the same.

(2) Off-premise permitted signs on controlled routes must comply with the following spacing requirements:

(a) signs adjacent to an interstate highway or limited-access primary highway a full access control route must be a minimum of 500 feet apart on the same side of the roadway;

(b) signs adjacent to primary highways must be a minimum of 300 feet apart on the same side of the roadway;

(c) signs, whether or not visible to the main traveled way of the interstate system or other controlled route, must not be located within the limits of a grade separated interchange, including its entrance or exit roadways. The limits of an interchange shall include 500 feet beyond the beginning or ending of the gore, or pavement widening, for each entrance or exit roadway, along the controlled route and all interconnecting roadways;

(d) signs, whether or not visible to the main traveled way of a controlled route, must not be located within 500 feet of any of an intersection, intersecting roadway, junction, property driveway, or connecting roadways with approaching or merging traffic in rural areas, or within 140 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadways with approaching or merging traffic in cities or towns;

            (c)  signs must not be located on an interstate highway or full access control route within 500 feet of an interchange or intersection at grade, or a rest area, including all entrance or exit roads. Five hundred feet must be measured from the sign to the nearest point of the beginning or ending of the gore, or pavement widening, at the exit from or entrance to the main traveled way. In an area where two interchanges are in such close proximity that the acceleration or deceleration lane or ramps merge or overlap, or where there are continuous acceleration or deceleration lanes, or auxiliary lanes between interchanges, the area will be treated as one continuous interchange, and no signs are allowed;

            (d) signs must not be located on primary highways or roads within 300 feet of an intersection or intersecting roadway when the distance between centerlines of intersecting streets or highways is greater than 1,000 feet between the intersecting streets or highways;

            (e)  signs must not be located on primary highways or roads within 150 feet or an intersection or intersecting roadway when the distance between the centerlines of intersection streets or highways is less than 1,000 feet between the intersecting streets or highways;

            (f) sign spacing measurements must be measured along a line parallel to the centerline of the highway between points directly opposite the sign structure or advertising device;

            (e) through (i) remain the same, but are renumbered (g) through (k).

            (3) Off-premise permitted signs on controlled routes must comply with the following size requirements:

            (a) signs, including the total number of a sign faces facing the same direction, face must not exceed 672 square feet in area, a height of 14 feet, and a length of 48 feet, including border and trim, but excluding base or apron, supports, or other structural members, or any embellishment on or cut-out extension of the sign face;

            (b) signs must not exceed 48 feet in length;

            (c)(b) signs sign structures must not exceed 30 feet in height, as measured from a right angle from the surface of the roadway at the centerline of the controlled route, or from a point on the sign structure which is at the same elevation as the crown of the roadway to the top of the highest sign face;

            (d) (c) signs sign structures within 500 feet of any intersection, intersecting roadway, junction, property driveways, approaching or merging traffic must be erected with the height above ground level (HAGL) of not less than 8 feet.

            (4) remains the same.

 

AUTH: 75-15-121, MCA

IMP:  75-15-113, 75-15-121, MCA

 

REASON: The proposed amendments are necessary to: expand the definition of sign spacing to include rest areas and scales; clarify sign spacing on "diamond" interchanges; clarify measurement procedures for intersecting roadways; clarify maximum sign face dimensions; clarify sign structure heights; and remove references to sign spacing from intersecting driveways. The clarifications will aid sign permittees in complying with off-premise sign standards.

 

            18.6.239 MOBILE ADVERTISING DEVICES - SIGNS ON VEHICLES 

            (1) remains the same.

            (2) Vehicles, trailers, or other portable objects displaying off-premise mobile advertising devices being used for outdoor advertising purposes must not be parked on public or private land visible to the traveling public from any place on a controlled route, whether the display is permanent or portable, regardless of the length of time the vehicle is parked in any one or more locations, when the primary intended reason for the parked location is to advertise to the traveling public.

            (3) remains the same.

 

AUTH: 75-15-121, MCA

IMP:  75-15-111, 75-15-113, MCA

 

REASON: The proposed amendment is necessary to include trailers and other portable objects within the prohibited type of mobile advertising devices, to clarify to the public when mobile devices may not display off-premise advertising. The proposed amendment will also clarify the rule language to better convey the circumstances under which a vehicle may not be parked with the primary intention of advertising to the traveling public.

 

            18.6.251 REPAIR OF NONCONFORMING SIGNS (1)  Permittees must complete a notification report detailing proposed allowable maintenance or repair of nonconforming signs, on a form provided by the department, prior to commencement of allowable work. Department approval is not required prior to commencement of allowable work.

(2) The department will review all notification reports, and may notify a permittee that maintenance or repair work is not in compliance with statute or rule. Noncompliant work identified by the department in advance of completion must not be commenced or completed by permittee. Noncompliant work identified by the department after completion must be restored to its original status within 90 days of department notification.  Failure to complete a notification report may result in revocation of the permit.

(1)(3) As per 75-15-111, MCA, nonconforming signs lawfully in existence prior to April 21, 1995, may be maintained or replaced each year under the following requirements:

            (a) a sign structure may be maintained each year if the value of the materials used in the maintenance does not exceed 75 percent of the value of the materials required to replace the sign new;

            (b) the sign structure may be replaced, if damaged by vandalism, criminal acts, or tortious acts, at up to and including 100 percent of its replacement cost;

            (c) the sign structure replacement must not result in an increase in the area used to display advertising copy nor an increase of height, width, or area over the current dimensions;

            (d) the sign structure may must not be illuminated, unless already illuminated before the repair or maintenance. Illumination not physically attached to the sign structure must not be added;

            (e) the sign structure to be repaired or replaced may must not replace wood poles with steel poles. Steel must not be used to support wooden poles. Poles must not be wrapped with any other materials or encased in tubes.

            (2) remains the same but is renumbered (4).

            (a) a sign structure may be maintained and repaired if the value of new materials used in the maintenance of a sign during one calendar year does not exceed 30 percent of the value of all the materials which would be required to replace the sign new;

            (b) the sign structure may be replaced if damaged by vandalism, criminal acts, or tortious acts, at up to and including 100 percent of its replacement cost;

            (c) the sign structure replacement may must not result in an increase in the area used to display advertising copy nor an increase of height, width, or area over the current dimensions;

            (d) the sign structure may must not be illuminated, unless already illuminated before the repair or maintenance. Illumination not physically attached to the sign structure must not be added;

            (e) the sign structure to be repaired or replaced may must not replace wood poles with steel poles. Steel must not be used to support wooden poles. Poles must not be wrapped with any other materials or encased in tubes.

            (3) through (10) remain the same, but are renumbered (5) through (12).

 

AUTH: 75-15-121, MCA

IMP: 75-15-111, 75-15-121, MCA

 

REASON: The proposed amendment will add a requirement of notification for maintenance or repair of nonconforming signs, so the department may review work to ensure compliance with the appropriate statutory requirements for maintenance and repair of nonconforming signs. The proposed amendment will also clarify language on maintenance or repair of the entire sign structure, clarify the prohibition on adding illumination which is not physically attached to the sign structure, and clarify the prohibition on use of steel or other materials to support existing wooden poles. The proposed amendments will create a new process to allow the department to oversee nonconforming sign maintenance and repair, and will lessen any confusion by permittees over existing processes for repair or maintenance of nonconforming signs.

 

            18.6.252 UPGRADE OR RELOCATION OF CONFORMING SIGNS 

            (1) through (4) remain the same.

            (5) Approved upgrade or relocation work must be completed within 90 days of department approval.

 

AUTH: 75-15-121, MCA

IMP: 75-15-111, 75-15-121, MCA

 

REASON: The proposed amendment is necessary to impose a deadline for completion of approved work. This deadline will allow the department to monitor compliance with statutes and rules on outdoor advertising.

 

4. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Patrick J. Hurley, Department of Transportation, Outdoor Advertising Control, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6068; fax (406) 444-7254; or e-mail phurley@mt.gov, and must be received no later than 5:00 p.m., January 8, 2015.

 

5. If persons who are directly affected by the proposed action 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 Patrick J. Hurley at the above address no later than 5:00 p.m., January 8, 2015.

 

6. 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 310 persons based on 3098 permit holders in Montana.

 

7. 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 4 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.

 

8. 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.

 

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

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment 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

 

 

                                                                        /s/ Kevin Howlett                             

                                                                        Kevin Howlett

                                                                        Chair

                                                                        Transportation Commission

           

Certified to the Secretary of State, December 1, 2014.

 

 

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