BEFORE THE transportation COMMISSION
AND THE DEPARTMENT OF TRANSPORTATION
OF THE STATE OF MONTANA
In the matter of the adoption of New Rule I; amendment of ARM 18.6.202, 18.6.203, 18.6.204, 18.6.205, 18.6.206, 18.6.211, 18.6.212, 18.6.213, 18.6.215, 18.6.221, 18.6.231, 18.6.232, 18.6.238, 18.6.239, 18.6.240, 18.6.241, 18.6.243, 18.6.246, 18.6.247, 18.6.251, 18.6.252, 18.6.262, 18.6.264; and repeal of ARM 18.6.244, and 18.6.245 pertaining to Outdoor Advertising Control
NOTICE OF ADOPTION, AMENDMENT, AND REPEAL
TO: All Concerned Persons
1. On March 4, 2016, the Transportation Commission (commission) and the Department of Transportation (department) published MAR Notice No. 18-158 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 381 of the 2016 Montana Administrative Register, Issue Number 5.
2. The commission and the department have amended ARM 18.6.203, 18.6.204, 18.6.206, 18.6.211, 18.6.212, 18.6.213, 18.6.215, 18.6.221, 18.6.231, 18.6.232, 18.6.238, 18.6.239, 18.6.240, 18.6.241, 18.6.243, 18.6.246, 18.6.247, 18.6.252, 18.6.262, and 18.6.264 and repealed ARM 18.6.244 and 18.6.245 as proposed.
3. The commission and the department have adopted New Rule I (18.6.237) and amended ARM 18.6.202, 18.6.205, and 18.6.251 as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
NEW RULE I (18.6.237) ELECTRONIC BILLBOARD STANDARDS
(1) through (2)(e) remain as proposed.
(f) an EBB message must remain static
and nonmoving. Paging, scrolling, or streaming messages are prohibited. The message must not use techniques of message display such as fading, rolling, window shading, exploding, dissolving, spinning, revolving, or shaking messages;
(g) through (k) remain as proposed.
(l) an EBB must not use wording that implies traffic control or a highway emergency;
(m) (l) an EBB must not attempt or appear to attempt to direct the movement of traffic and must not interfere with, imitate, or resemble any official traffic sign, signal, or device; and
(n) (m) an EBB must contain a default mechanism which will stop the sign face in one position if a malfunction which causes the display to be in violation of this rule occurs, or within three hours when notified by the department ; and.
(o) an EBB must not cause interference with radio, television, or other utility electronic signal.
(3) through (5) remain as proposed.
(6) All EBBs must undergo an inspection after installation to demonstrate the EBB's ability to comply with all requirements set forth in this rule.
(7) remains as proposed, but is renumbered (6).
AUTH: 75-15-121, MCA
IMP: 75-15-111, 75-15-112, 75-15-113, MCA
18.6.202 DEFINITIONS (1) through (10) remain as proposed.
(11) "Controlled route" means any route on the federal-aid interstate, National Highway System (NHS), or primary system in existence on June 1, 1991.
(12) through (47) remain as proposed.
AUTH: 75-15-121, MCA
IMP: 75-15-103, 75-15-111, 75-15-112, 75-15-113, 75-15-121, MCA
18.6.205 OFF-PREMISE SIGNS - LOCATIONS - COMPLIANCE WITH STATUTES, RULES, ORDINANCES (1) through (7) remain as proposed.
(8) 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 panels of the shelter.
(9) and (10) remain as proposed but are renumbered (8) and (9).
AUTH: 75-15-121, MCA
IMP: 75-15-104, 75-15-111, MCA
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. A photo verification of the existing sign condition prompting repair or maintenance must be attached to the notification form. Department response is not required prior to commencement of allowable maintenance, at permittee's risk of later receipt of department noncompliance determination as per (2).
(2) The department will notify a permittee within 30 days of notification report receipt if maintenance or repair work appears to be noncompliant with statute or rule, and must not be commenced or completed.
(3) The department may inspect and verify nonconforming sign repair or maintenance work at any time, and if noncompliant maintenance is identified by the department after completion, the sign must be restored to its original status within 90 days of department notification.
(4) Failure to complete a notification report prior to commencement of maintenance may result in revocation of the permit.
(5) Emergency repairs, or those which must be performed to address a risk to public health or safety, may be completed immediately upon submission of a photo verification of the emergency sign condition requiring repair. Emergency repair may only be made in accordance with this rule, and may only include sign replacement for damage due to vandalism, criminal acts, or tortious acts.
(1) through (2)(e) remain as proposed, but are renumbered (6) through (7)(e).
(3) At least 30 days prior to performing any repair or maintenance of a nonconforming sign, the sign owner must submit to the department a repair application detailing the following:
(a) all proposed repairs or maintenance to be performed, including a list of materials to be used and associated material costs; and
(b) a listing of all materials required to replace the sign new with current costs.
(4) The department will review all repair applications and notify the sign owner of approval or denial of the repair application within 30 days of receipt.
(5) After department approval, the sign owner may proceed with the repair or maintenance identified. All repair or maintenance work must be done within 90 days of approval. The sign owner must provide the department with written and photo verification of the repair or maintenance performed.
(6) If the department denies a repair application, the department will notify the sign owner of the reason for denial.
(7) through (11) remain as proposed, but are renumbered (8) through (12).
(12) (13) The department shall notify a sign owner of a violation of this rule. Failure to submit a repair application prior to repairing or maintaining a nonconforming sign may result in revocation of the permit and removal of the nonconforming sign at the sign owner's expense.
(13) and (14) remain as proposed, but are renumbered (14) and (15).
AUTH: 75-15-121, MCA
IMP: 75-15-111, 75-15-121, MCA
4. The commission and the department have thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT #1: Numerous comments were received in support of Electronic Billboards (EBBs) along MDT-controlled routes, as proposed in New Rule I (18.6.237). The comments generally stated EBBs are an effective advertising method, which can help a business with a limited advertising budget, and this new era of advertising should not be denied to small business owners and other advertisers. The comments also stated EBBs can create awareness and instant results, and are cleaner in appearance and generally more appealing to the eye. The comments also stated EBBs are an effective tool for local police and the FBI in issuing Amber Alerts and in taking criminals off the streets. The comments also stated older signs require outdated vinyl coverings to be sent to a landfill, while EBBs are a "greener" alternative. Finally, the comments in support cited a federal FHWA study which concluded EBBs were not more distracting to drivers, thus Montana should keep up with the times by implementing EBBs.
RESPONSE #1: The commission and department acknowledge the comments in support of New Rule I (18.6.237), and appreciate all comments received during the rulemaking process.
COMMENT #2: Numerous comments were received stating opposition to EBBs along MDT-controlled routes, as proposed in New Rule I (18.6.237). The comments generally stated EBBs would negatively affect tourism in Montana, as tourists did not come to Montana to look at flashing billboards, but rather to avoid obnoxious electronic distractions, and to view Montana's natural beauty. The comments also stated a more thorough analysis should be done to determine whether "Montanans" would like to increase the number of EBBs in the state, rather than just a "select group," or the advertising industry. The comments also stated EBBs would distract drivers and create a safety risk, which would increase accidents on Montana highways, and cited studies on the effects of EBBs on driver distraction. The comments also stated EBBs would create "light pollution" obliterating night-time views of the stars and affecting nocturnal animal species. The comments also stated EBBs would waste energy.
RESPONSE #2: The commission and department proposed New Rule I (18.6.237) as a compromise between supporters and opponents of EBBs. For example, the rule allows EBBs, but imposes restrictions to limit the locations, spacing, brightness levels, etc. The rule imposes greater spacing requirements between EBBs, in an effort to stimulate removal of traditional static billboards between EBB sites in order to qualify the new EBB location. In response to specific opponent concerns: the rule limits EBBs to areas within city limits or urban areas, rather than rural or scenic areas so as not to detract from natural scenery; consideration of the various cited studies revealed conflicting conclusions, with some showing distraction and others finding no additional distraction, thus the studies cannot reliably state EBBs are an additional distraction to drivers or pose an additional safety risk; the rule requires EBBs to use automatic dimming technology to adjust brightness in low light conditions or at night, so the brightness levels will not increase light pollution or interfere with nocturnal animal species within the city locations of the new EBBs; environmental concerns must be balanced between power usage by EBBs and power usage by lighted traditional billboards, which may now be reduced in number.
COMMENT #3: Several comments were received stating New Rule I (18.6.237)(1) should be revised to state EBBs may be located in any area in which conforming billboards may be located, and not just in areas zoned commercial or industrial. The comments stated EBBs should be allowed in all areas where conforming signs are currently allowed by statute.
RESPONSE #3: New Rule I (18.6.237) will limit EBBs to areas zoned commercial or industrial within city limits or urban areas to address concerns about proliferation of EBBs and detraction from natural and scenic beauty in non-urban areas. The location restrictions will also allow local governments to adopt local ordinances which may be more restrictive than state rules if the local citizens choose to do so.
COMMENT #4: Several comments were received stating New Rule I (18.6.237)(2)(f) should not state "…must remain static and nonmoving," as this language is redundant.
RESPONSE #4: The commission and the department agree, and have changed New Rule I (18.6.237) as shown.
COMMENT #5: Several comments were received stating New Rule I (18.6.237)(2)(h) on EBB spacing should state 1000 feet spacing from interchange ramps and "controlled access highways," but should not include the language "…and within 500 feet of an intersection." The comments stated inclusion of "intersection" language requires definitions of different types of intersections. The comments stated the distance from intersections is already addressed in statutes and rules for conforming signs.
RESPONSE #5: ARM 18.6.202(23) contains a definition of "intersection," including a clarification proposed in this notice. New Rule I (18.6.237) also imposes different spacing requirements for EBBs, in an effort to stimulate removal of traditional static billboards in order to qualify the new EBB locations.
COMMENT #6: Several comments were received stating New Rule I (18.6.237)(2)(i) requiring 2000-feet spacing between an EBB and any other permitted sign should be revised. The comments stated (2)(i) should only measure EBBs between other EBBs and not "any permitted billboard" as currently stated. The comments stated enforcement problems could arise if spacing is measured between on-premise signs, or another legal sign category. The comments stated spacing requirements in other states are measurements only between EBB-type billboards, and are not as great as New Rule I (18.6.237)'s 2000-foot requirement, which the comment states is unreasonable. The comments suggested a change to a 1000-foot spacing requirement between EBBs, but noted other states used spacing of 500 feet between EBBs as per their respective Federal-State Agreements. The comments stated the current 2000-foot spacing requirement will be greater than a city block, and thus eliminate EBB locations in cities.
RESPONSE #6: See response to Comment #2. The spacing requirements of New Rule I (18.6.237) were chosen as a compromise to attempt to eventually reduce the overall number of billboards, since EBBs can accommodate multiple advertisers on only one physical sign structure. New Rule I (18.6.237)(2)(i) requires 2000 feet between an EBB and another permitted sign, thus on-premise signs (which are not granted OAC permits) are clearly excluded. Other state regulations contain a variety of distance requirements depending on the EBB location on an interstate, primary rural route, primary urban route, etc. The distances vary from 500 feet to 5000 feet between signs. The 2000-foot requirement in New Rule I (18.6.237) will encourage reduction in overall number of billboards.
COMMENT #7: Several comments were received stating New Rule I (18.6.237)(2)(l) prohibiting wording that implies traffic control is an attempt to regulate content, which could be a potential First Amendment issue. The comments stated the issue is already addressed in subsection (2)(m) which prohibits an EBB from attempting to direct movement of traffic.
RESPONSE #7: The commission and department agree, and have amended New Rule I (18.6.237) to delete (2)(l) as shown.
COMMENT #8: Several comments were received stating New Rule I (18.6.237)(2)(o) prohibiting interference with electronic signals is extremely vague. The comments stated the language raises a concern over the technical ability to enforce any potential interference with a utility signal or other media. The comments stated the subsection is not necessary.
RESPONSE #8: The commission and department agree, and have amended New Rule I (18.6.237) to delete (2)(o) as shown.
COMMENT #9: Several comments were received stating New Rule I (18.6.237)(3) on upgrading existing non-EBBs to EBBs should not require a new sign permit as a condition to allow an EBB on an existing conforming billboard in a previously approved commercial or industrial area.
RESPONSE #9: See response to Comment #2. New Rule I (18.6.237) is an effort to stimulate removal of traditional static billboards in order to qualify the new EBB location, since EBBs can accommodate multiple advertisers on only one physical sign structure. New Rule I (18.6.237)(3) will require a new permit application to ensure new EBB locations are in compliance with New Rule I (18.6.237), as compliant locations are different for EBBs than traditional static billboards. Not all existing OAC qualifying billboard locations will qualify as an EBB location, thus an existing permit could not be "upgraded" if in a noncompliant location.
COMMENT #10: Several comments were received stating New Rule I (18.6.237)(5) requiring EBB permit applications to be accompanied by local government approvals should delete the last sentence on violation of county or local regulations. The comments stated the department can revoke an EBB permit only after the local authority initiates action.
RESPONSE #10: See response to Comment #3. The location restrictions will allow local governments to adopt local ordinances which may be more restrictive than state rules if the local citizens choose to do so. The language in (5) on violation of city or local regulations states the department's authority to revoke a department-issued OAC permit if local regulations are not met, thus ensuring local government participation in determining the presence of EBBs within their own city limits or urban areas.
COMMENT #11: Several comments were received stating New Rule I (18.6.237)(6) requiring a post-installation inspection should be deleted entirely. The comments stated the operation of an EBB is already regulated by specific criteria within New Rule I (18.6.237). The comments stated extra technical inspection expertise would be needed when an EBB is already in operation.
RESPONSE #11: The commission and department agree, and have amended New Rule I (18.6.237) to delete (6) as shown.
COMMENT #12: A comment was received stating New Rule I (18.6.237)(7) stating violation of New Rule I (18.6.237) may result in revocation of the permit should be deleted. The comment stated New Rule I (18.6.237) only applies to upgrade of a conforming static sign to an EBB. The comment stated violation of New Rule I (18.6.237) should therefore only risk revocation of the EBB upgrade, because the site is conforming and there is nothing that would prevent a new sign permit for that site.
RESPONSE #12: See responses to comments #2 and #9. New Rule I (18.6.237) requires a new EBB permit to ensure the EBB location is compliant with the specialized requirements of New Rule I (18.6.237). Revocation of the EBB permit would not necessarily prevent a traditional static sign from occupying the location, but the site must be evaluated under the traditional billboard requirements, which may only be done with a new OAC permit application.
COMMENT #13: Several general comments were received stating schools should be allowed to use EBBs for school signs located along controlled routes, even when the sign location is not on school property. The comments stated the school signs would provide school activity messages, community activity messages, and public service messages, so the signs would not contain commercial advertising. The comment stated many schools in Montana are in favor of allowing school EBBs.
RESPONSE #13: New Rule I (18.6.237) would allow schools to apply for an OAC permit for an EBB under the rule standards. The department may consider future rules on school signs, but it is outside the scope of the current rulemaking.
COMMENT #14: Several general comments were received stating New Rule I (18.6.237) on EBBs should be separated from the additional rule amendments contained in the proposed rule notice. The comments stated the notice of proposed rulemaking should be "withdrawn" on all rules except New Rule I (18.6.237), and all other proposed OAC rules should be "republished" at a later date after consulting with stakeholders on the procedures.
RESPONSE #14: The Montana Administrative Procedure Act (MAPA) does not limit the number of proposed adoptions, amendments, or repeal of rules which may be contained in a single rule notice. The commission and the department included all proposed changes to OAC rules in MAR Notice No. 18-158 for more expeditious consideration of public comments on outdoor advertising control rules.
COMMENT #15: Several copies of a comment sheet were received stating proposed amendments to ARM 18.6.202(1)(a), (b), (c), (e), (f), (g), should be revised as follows: (1)(a) which proposes to define "abandoned sign" as including a sign which remains in the absences of a valid lease or written permission from the landowner, should be deleted. The comments stated many signs do not have anything in writing, but have verbal agreements with landowners, thus the sign owner is taking the risk, and MDT should not govern what happens between a sign owner and a landowner. (1)(a) should remove reference to permission from landowner for the definition of "abandoned sign" and replace with "as determined by a court with jurisdiction"; (1)(b) should leave the language "…has been without a message for a period of at least six months"; (1)(c) should define "obsolete" and add language "for a period of at least six months"; (1)(e) and (f) should reinstate the word "structure" and add "after expiration of the time allowed per the approved permit issued by the department"; (1)(g) [not proposed for amendment] should add language "after receiving written notice by the department allowing 30 days to pay past due fees" for flexibility.
RESPONSE #15: The commission and the department respond as follows: (1)(a) – Section 75-15-122, MCA, requires the department to obtain information the landowner has consented to the presence of a sign, which must be in writing to ensure its reliability. The proposed change to (1)(a) will expand the sign owner's and landowner's ability to provide a lease or any other type of written permission showing landowner consent; (1)(b) – the amendment will delete a six-month time requirement for blank faces and allow the department to determine abandonment any time a sign face is blank; (1)(c) – the amendment is updating awkward language on obsolete advertising in favor of a cross reference to the existing definition of "obsolete." A six-month timeline would not be consistent with other parts of the definitional rule on abandoned signs; (1)(e) and (f) – the amendment deletes the redundant word "structure" for consistency of use throughout the rules. The rules already contain wording on timelines for sign erection and sign removal elsewhere, thus it is not necessary to insert language on timelines in this definitional rule; (1)(g) – comments are outside the scope of the current rulemaking, as no amendments were proposed to (1)(g).
COMMENT #16: Several copies of a comment sheet were received stating proposed amendments to ARM 18.6.202(5), (11), (13), (23), (25), and (46) should be revised as follows: (5) should define blank sign as "a sign structure that has no face or has no advertising for a period of six months" with an option to allow nine months or one year, since other areas of the rules allow these time periods for other deadlines; (11) should keep the definition of "controlled route," but retain the language "primary system as of June 1, 1991," as this language is important and has served to define effective control and set parameters to determine which off-premise signs along highways need permits; (13) on destroyed sign should either make no change to existing definition, or use the federal guidance memo language which states "60 percent or more of the upright supports of a sign structure are physically damaged such that normal repair procedures would call for" etc., as the current criteria for destroyed signs has been in effect for several decades, thus a sudden regulatory change without justification does not merit support; (23) should retain language on intersection definition to keep language on "main travelled way" and "an alley, undeveloped right-of-way etc., are not regarded as an intersecting street," as this language relates directly to the Federal-State Agreement; [former] (25) defining "industrial activity" should not be deleted; and (46) should retain the existing definition of "urban area."
RESPONSE #16: The commission and the department respond as follows: (5) – the addition of six-month, nine-month, or one-year time frames in this definitional rule would create conflicts with time frames written elsewhere in the rules, and are not appropriate; (11) – the department and the commission agree with the comment and will amend the rule as shown above to both update the controlled route definition to use the current naming system of "National Highway System," and retain language on the former "federal aid primary system as of June 1, 1991"; (13) – the amendment is deleting redundant, unnecessary language. The definition of "destroyed sign" already states the sign was destroyed due to factors other than vandalism or criminal acts, thus it is not necessary to list all possible other causes such as wind damage. The amendment does not represent a regulatory change as the comment suggests; (23) – the amendment brings the definition of "intersection" in line with the statutory definition as well as other federal resources. The deletion of language on alleys, etc., will remove language which had formerly caused confusion on placement of signs in proximity to those types of facilities; [former] (25) – the deletion of the former (25) defining "industrial activity" is necessary because "industrial zone" is already defined in statute at 75-15-103, MCA, and rules may not unnecessarily repeat statutory language. ARM 18.6.206 on Unzoned Industrial Activity already contains criteria to determine whether an activity qualifies as an unzoned industrial area; (46) – the amendment will add a definition of "urban area," which was not previously defined in these rules, as that term is now used elsewhere in the rules, including New Rule I (18.6.237). The definition is not being deleted as the comment states, but rather, is being added as an amendment to the rule.
COMMENT #17: Several comments were received stating proposed amendments to ARM 18.6.203(1)(e), (f), (g), and (4)(c) should be revised as follows: (1)(e) should delete language requiring a restroom in the qualifying business and the requirement for six months scheduled business, as the new language is adding too much oversight, where discretion should be allowed; (1)(f) should delete the term "commercial," as it relates to a building, as the language is unnecessary; [former] (1)(g) should allow seasonal commercial business language to remain as is, as these are valid commercial businesses that many Montana residents put thousands of dollars into running and maintaining; (4)(c) should not add a requirement for a business owner to build a separate building for an office.
RESPONSE #17: The commission and the department respond as follows: (1)(e) – the amendment will add facility and scheduled hour requirements to evaluate a commercial activity, which is necessary to prevent sham businesses from springing up, which then close when the sign permit has been issued. The amendment is consistent with other criteria for determination of commercial activities, and will clarify the criteria for applicants, without creating subjective discretion; (1)(f) – the amendment uses the term "commercial activity" for consistency with the listed subsections which all start with this phrase to distinguish the rule from a later rule on industrial activity; [former] (1)(g) – the former subsection (1)(g) is deleted, as it conflicts with (1)(e) requiring the commercial activity to be open to the public at least six months of a calendar year. The six-month requirement is necessary to prevent sham businesses, as noted above; (4)(c) – the amendment does not require a business owner to build a separate building for an office, as the comment suggests, but rather lists criteria to evaluate activities which do not create a commercial area, including activities in buildings used solely for storage.
COMMENT #18: Numerous comments were received stating opposition to ARM 18.6.205(8) on proposed bus shelter advertising amendments. The comments generally stated the rule amendment would jeopardize the current bus shelter business model in which one company privately owns the shelters, charges advertisers for placement of ads, and uses the bulk of the revenue to pay for the construction, placement, and maintenance of the shelters. The comments stated this system has been working well for bus passengers, municipalities, and the state, but the proposed amendments would shut down the current bus shelter provider due to lack of advertising revenue and destroy the commercial value of the shelters, which would result in a loss for all groups. The comments also stated the local governments do not have the money to build and maintain bus shelters without the current shelter provider. The comments also stated the Federal Highway Administration (FHWA) has "left this issue [bus shelter advertising] up to the states" and stated bus shelter advertising is permissible "if the State provides satisfactory assurance to the FHWA that such use will not adversely affect the highway or interfere with the free and safe flow of traffic thereon." The comments stated proposed ARM 18.6.205(8) limits the font size and readability of the advertising such that only 50 or so shelter users per day will receive the ad, and not thousands of passersby. The comments also stated the proposed rule should continue the requirement of an MDT-issued encroachment permit, but defer to local control of advertising by transit agencies.
RESPONSE #18: The commission and the department acknowledge the comments in opposition and will not adopt the proposed change to ARM 18.6.205(8). The commission and the department will continue to work on bus shelter advertising rules for a future rulemaking notice.
COMMENT #19: Several comments were received stating proposed amendments to ARM 18.6.206(1)(b), (e), and (g) should be revised as follows: (1)(b) should retain language that references a "residence" on the property, as the Federal-State Agreement notes the principal use must be business-related; (1)(e) should not delete the word "seasonal"; and (1)(g) should be revised to remove the phrase "with department approval" as this language gives too much power to the department to deny valid permit requests that would otherwise be approved.
RESPONSE #19: The commission and the department respond as follows: (1)(b) – the existing language referencing a "residence on the property" as a use which will not qualify an activity for determination as an industrial activity is not proposed for amendment in this notice; (1)(e) – see response to comment #17. The removal of the word "seasonal" is consistent with 75-15-103, MCA, and will make the rule language consistent with the rule on unzoned commercial activities in length of time in business to prevent sham businesses from springing up and then closing once an outdoor advertising permit has been issued; (1)(g) – the amendment will allow the department to evaluate government-issued authorizations for the industrial location, when a business license is not required for the site. This evaluation is necessary to allow for flexibility in considering other documentation when an applicant cannot produce a business license with an application, but must substitute another authorization for evaluation.
COMMENT #20: Several comments were received stating proposed amendments to ARM 18.6.211(5) should be revised as follows: (5) should remove the language "the permit plate must not be leased to any other party," as the language is confusing and needs clarification of what the department intended. The comments stated most outdoor advertising companies sublease structures from other companies.
RESPONSE #20: The amendment will clarify the permit plate must remain with its original permitted sign, but cannot be "leased" to another permit holder, or placed on a different sign structure than that for which it was originally issued. A sublease of a structure should not cause any change in placement or maintenance of the original permit plate with the original structure.
COMMENT #21: A comment was received stating ARM 18.6.211(8) should remove the proposed language on failure to obtain a permit prior to erection may result in denial of a pending application, as the language is redundant.
RESPONSE #21: The amendment will address instances which have occurred in the past where a permit applicant has erected a sign in anticipation of permit approval. The amendment will clarify the sequence of events to be followed in applying for an outdoor advertising permit, including sufficient time for the department to complete its application review and site inspection, and explain the possible penalty for applicants who do not wait for all steps to be completed.
COMMENT #22: Several copies of a comment sheet were received stating ARM 18.6.211(9), which proposes to require a landowner to sign a transfer sheet along with the sign owner whenever a sign permit is transferred to a new permit holder, should not require the landowner's signature. The comment stated many sign owners have verbal lease agreements, and take the risk when they transfer signs without permanent lease agreements in place. The comments stated MDT should not decide whether a permit can be transferred, thus determining the value of the signs and businesses. Section (9) should not be amended, as the transfer of a permit should never be dependent on a landowner signature, as the department should not interfere with the permit holder-landowner contract to conduct business, including permit transfers which are typically addressed in a private lease agreement. The comments also stated (9) should not include a time frame for submission of the transfer to the department, as the department does not know when the agreement was finalized.
RESPONSE #22: See response to Comment #15. Section 75-15-122, MCA, requires the department to obtain information the landowner has consented to the presence of a sign. Verbal agreements cannot be verified by the department, thus some form of written landowner permission must be submitted. When a sign is transferred from one permit holder to another, the department must, by statute, be able to show landowner consent to its presence. The amendment will allow landowner signature on the transfer form or submission of an easement to meet this statutory requirement. The amendment does not cause departmental "interference" with permit transfers, nor impose a time frame which cannot be met, but instead requires the permit holders to keep records and ownership information current with the department.
COMMENT #23: Several copies of a comment sheet were received stating ARM 18.6.212(5)(d) and (e) should be revised as follows: (5)(d) which proposes to require measurements for sign locations to be made from the qualifying activity's building, but not from the property lines, should be amended. The comments stated the section should be worded that measurements can be taken from the portions of the property being used for the commercial or industrial activity. The comment stated the proposed amendment would diminish an already small opportunity to permit new qualifying sign locations in this state. The comments also stated the word "scale" should be removed from the first line; (5)(e) should not include an additional requirement for a landowner signature, but should instead allow a copy of the signed agreement between the sign owner and landowner or other document provided by the parties.
RESPONSE #23: The commission and the department respond as follows: (5)(d) – the amendment will clarify measurements for qualifying activities must be measured from the activity's buildings, because measurements made from property lines or boundaries may encompass large areas not used by the activity on a larger tract. The use of buildings for measurements will ensure the qualifying activity is being conducted a proper distance from a sign site. The word "scale" in (5)(d) indicates all drawing submitted with a permit application must be drawn to an identified scale to assist department staff in evaluating proper distances for sign locations, as required by statute and rule; (5)(e) - See responses to comments #15 and #22. Landowner signature indicates statutorily required consent of the landowner.
COMMENT #24: A comment was received stating proposed amendments to ARM 18.6.212(6) should add language that flagging tape on the right-of-way fence indicating the sign location is an acceptable means of site identification. The comment stated this would help in instances where a stake has blown over or accidentally been removed.
RESPONSE #24: Flagging tape will not suffice to establish a site identification, as the fencing may not correctly indicate the right-of-way boundary, or right-of-way fencing may not be in place in certain locations.
COMMENT #25: A comment was received stating proposed amendments to ARM 18.6.212(8) should add "within 30 days" or "within 60 days" at the end of this paragraph on the department's ability to return rejected applications to the applicant for corrections.
RESPONSE #25: The amendment will clarify the department's ability to return an application for incompleteness. Imposition of an arbitrary timeline will limit the department's ability to assist an applicant in review for completeness and in returning it to the applicant for correction of deficiencies.
COMMENT #26: A comment was received stating ARM 18.6.213(5) should remove the language regarding destruction and disposal of the permit plate after revocation of the permit, as there is no way to verify compliance.
RESPONSE #26: The amendment will clarify the department's requirement for permit plate destruction. Enforcement of administrative rules is addressed elsewhere in the rules.
COMMENT #27: Several comments were received stating proposed amendments to ARM 18.6.215 increasing the inspection fee, without documentation to justify the increase, could be considered a tax, which can only be established by the Montana Legislature.
RESPONSE #27: The fee increase amendment was justified in the statement of reasonable necessity which accompanied the rule, and stated the increase was necessary to cover the department's increased costs of staff and travel time to travel to often-distant sign locations. Imposition of fees is authorized by 75-15-122, MCA.
COMMENT #28: A comment was received stating proposed amendments to ARM 18.6.221(1), (2), and (5) should be revised as follows: (1) [not proposed for amendment in this notice] should use "180 days" from the date of permit issuance for commencement of work on a sign and 365 days for completion of work; (2) [not proposed for amendment in this notice] on extension of time to erect the structure is not needed if 365 days is allowed; (5) on penalty for failure to abide by the rule should also contain language on failure to comply after receiving a notice from the department.
RESPONSE #28: The commission and the department respond as follows: (1) – the comment is outside the scope of the current rulemaking, since no amendments were proposed to (1); (2) – the comment is outside the scope of the current rulemaking, since no amendments were proposed to (2); (5) – the amendment will clarify for new permit holders that a penalty will be imposed for failure to follow the required steps for new sign erection. Failure to comply with OAC administrative rules generally is addressed elsewhere in the rules.
COMMENT #29: Several comments were received stating proposed amendments to ARM 18.6.231(2) and (3) should be revised as follows: (2) should not remove the words "on controlled routes" as signs not on controlled routes or signs that don't require an MDT permit are not regulated by these rules; (3)(a) [not proposed for amendment] contains an unclear reference on grandfathered status; and (3)(o) is unclear why the scenic area language is proposed for deletion.
RESPONSE #29: The commission and the department respond as follows: (2) – the amendment removes redundant language, as the department has jurisdiction only over outdoor advertising on controlled routes, thus it is not necessary to repeat this information in this section; (3)(a) – the comment is outside the scope of the current rulemaking, since no amendments were proposed to (3)(a); (3)(o) – the deletion of the language prohibiting sign locations in scenic or parkland areas will remove redundant language, as the information is already contained in statute at 75-15-113, MCA, and rules may not unnecessarily repeat statutory language.
COMMENT #30: Several copies of a comment sheet were received stating ARM 18.6.251(1)(b) and (2)(b) [not proposed for amendment in this notice], be amended to allow repair of nonconforming signs if damaged by acts of God, to include storms, winds, or fire. The comments stated the rules could require the signs be rebuilt with like materials.
RESPONSE #30: The comment is outside the scope of the current rulemaking, since no amendments were proposed to (1)(b) or (2)(b).
COMMENT #31: Several copies of a comment sheet were received stating ARM 18.6.251(3)(a), (3)(b), (4), (5), (6), and (12), which would require sign owners to submit repair applications to MDT 30 days prior to performing any repair or maintenance of a nonconforming sign, should not be adopted, but should be replaced with a reasonable criteria to allow customary maintenance of nonconforming signs. The comments stated the proposed amendments would "create a nightmare" for sign owners and MDT. The comments stated MDT does not have the resources to handle the number of repairs applications which would be generated by the proposed rule. The comments also stated the proposed amendments do not allow for emergency repairs or subsequent damages which may be caused by inability to repair damages in a timely manner while waiting for MDT approval of a repair application. The comments further suggested MDT should not travel around the state or monitor sign compliance, but should instead require each permit holder to submit an image of the permitted sign during the three-year renewal process, to allow MDT to determine whether a rule violation has occurred. The comments stated (12) should retain existing language on the department allowing a permittee to restore the sign as originally permitted, as the proposed new language creates a negative working environment, and provides no opportunity to cure a fault.
RESPONSE #31: The commission and the department agree with the comment on repair applications, and will amend the rule as shown to change the process to department notification only. This will allow emergency and de minimus repairs to proceed immediately, while continuing to allow the department 30 days to review the notifications and identify any which appear to be noncompliant with statute and rule. The commission and the department do not agree with the commenter's suggestion to allow permit holders to submit an image at permit renewal time, as the department would be unable to determine the reliability of any image without staff verification.
COMMENT #32: A comment was received stating proposed amendments to ARM 18.6.252(1) and (5) should be revised as follows: (1) should not delete existing language on upgrade or relocation of conforming signs; (5) should add language that the permit holder will have 180 days to commence work and 365 days to complete work from the date the application is approved or the permit is issued.
RESPONSE #32: The commission and the department respond as follows: (1) – the amendments did not delete existing language on upgrade or relocation of conforming signs, but clarified the existing language, and added information on imposition of an inspection fee; (5) – the amendment imposed a 90-day deadline for upgrade or relocation work for consistency with other deadlines elsewhere in the rules.
COMMENT #33: A comment was received stating proposed amendments to ARM 18.6.262(1) on notification of abandoned signs should grant an appeal hearing, as well as allow for request of an extension to accomplish the work, with further extensions at the department's sole discretion.
RESPONSE #33: The administrative contested case process for corrective action notices or permit revocation notices is already contained in ARM 18.6.264, and should not be repeated unnecessarily in this rule.
COMMENT #34: A comment was received stating proposed amendments to ARM 18.6.264(2) and (3) should be revised as follows: (2) should not require landowner involvement in notice of rule violations; and [existing] (3) [not proposed for amendment in this notice] should allow for 90 days completion of a corrective action instead of 45 days.
RESPONSE #34: The commission and the department respond as follows: (2) – the comment is outside the scope of the current rulemaking, since no amendment to the landowner notification language was proposed in (2); (3) – the comment is outside the scope of the current rulemaking, since no amendments were proposed to (3).
/s/ Carol Grell Morris /s/ Michael T. Tooley
Carol Grell Morris Michael T. Tooley
Rule Reviewer Director
Department of Transportation
/s/ Rick Griffith
Certified to the Secretary of State August 8, 2016.