Administrative Rules of the State of Montana

BEFORE THE TRANSPORTATION COMMISSION

DEPARTMENT OF TRANSPORTATION

OF THE STATE OF MONTANA

In the matter of the adoption of New Rules I, II, III, IV, V, and VI, the amendment of ARM 18.6.202, 18.6.203, 18.6.211, 18.6.212, 18.6.213, 18.6.214, 18.6.221, 18.6.231, 18.6.241, 18.6.243, 18.6.244, 18.6.245, 18.6.246, 18.6.247, 18.6.248, 18.6.251, 18.6.262, 18.6.263, 18.6.264, and the repeal of ARM 18.6.242 pertaining to outdoor advertising control

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NOTICE OF PROPOSED ADOPTION, AMENDMENT, AND REPEAL

NO PUBLIC HEARING CONTEMPLATED

TO: All Concerned Persons

1. On October 24, 2008, the Transportation Commission proposes to adopt, amend, and repeal 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 September 19, 2008, to advise us of the nature of the accommodation that you need. Please contact Patrick Hurley, Department of Transportation, P.O. Box 201001, Helena, MT 59620-1001; telephone (406) 444-6068; fax (406) 444-7254; TTY (800) 335-7592; or e-mail [email protected].

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

NEW RULE I ON-PREMISE SIGNS - QUALIFYING LOCATIONS

(1) On-premise signs which advertise activities conducted on the property upon which they are located do not require a permit from the department. The department shall be the sole determinant as to whether a sign qualifies as an on‑premise sign after meeting all requirements of the Outdoor Advertising Act and these rules.

(2) The sign must be located on the same premises as the activity or property advertised; however, physical evidence rather than property lines determine whether the premises on which an activity is conducted qualifies to allow an on‑premise sign.

(a) Premises include the area occupied by the buildings and appurtenances such as parking lots, storage areas, processing areas, or areas for the physical uses that are customarily incidental to the activity, including open spaces arranged and designed to be used in connection with the buildings or activities.

(b) Premises do not include vacant land, land used for unrelated activities, or land that is separated by other ownerships or roadways.

(3) The purpose of the advertising sign must be the identification of:

(a) the principal establishment;

(b) the principal activity located on the premises;

(d) the sale or lease of the property on which the sign is located.

(4) On-premise signs which attempt or appear to attempt to direct the movement of traffic or which interfere with, imitate, or resemble any official traffic sign, signal, or device are prohibited.

(5) When a sign consists principally of brand name or trade name advertising and the product or service advertised is only incidental to the principal activity, or if the sign brings rental or lease income to the property owner, the sign shall be considered the business of outdoor advertising and not an on-premise sign.

(6) Signs located on land in the following situations are not considered on‑premise advertising:

(a) any land on which a sale or lease sign contains advertising for any product or service not conducted upon the premises;

(b) any land which is not used as an integral part of the principal activity, including but not limited to land which is separated from the activity by:

(i) a roadway;

(ii) a highway;

(iii) any other obstruction not used by the activity;

(iv) extensive undeveloped highway frontage contiguous to the land actually used by a commercial facility whether or not it is under the same ownership;

(d) any land which is located more than one quarter mile from the principal activity or in closer proximity to the highway than the principal activity;

(e) any land occupied solely by structures or uses which serve no reasonable or integrated purpose related to the principal activity other than to attempt to qualify the land as a site for signs, including but not limited to playgrounds, camping areas, walking paths, fences, and maintenance sheds; or

(f) any land where the sign is located at or near the end of a narrow strip contiguous to the advertised activity, including but not limited to any configuration of land which cannot be put to any reasonable use related to the activity other than as a site for signs, such as wetlands, common or private roadways, or a strip of land held by easement or other lesser interest.

AUTH: 75-15-121, MCA

IMP: 75-15-111, MCA

REASON: The proposed new rule is necessary because the requirements which qualify an area to allow on-premise advertising have not previously been set forth in rule, thus leading to some confusion among sign owners as to whether or not a sign on certain property required a permit. The new rule will clarify that only signs which properly advertise goods or services offered within the boundaries of an appropriate premises fit the definition of on-premise signs which do not require a permit from MDT. The proposed amendment will also bring the rule into compliance with Code of Federal Regulation requirements for on-premise advertising found at 23 CFR � 750.

NEW RULE II OFF-PREMISE SIGNS - LOCATIONS - COMPLIANCE WITH STATUTES, RULES, ORDINANCES (1) Off-premise signs visible from a controlled route which advertise activities not conducted on the property on which the sign is located require a permit from the department. Any outdoor advertising sign or structure which generates income for the sale or lease of the outdoor advertising sign, or the sale, lease, or rental of advertising space on the sign requires an off‑premise sign permit from the department. The department shall be the sole determinant as to whether a sign qualifies as an off-premise sign after meeting all requirements of the Outdoor Advertising Act and these rules.

(2) Off-premise signs may be located in areas that are zoned industrial or commercial by a bona fide state, county, or local zoning authority.

(3) Off-premise signs may be located in unzoned commercial or industrial areas, which area contains a qualifying commercial or industrial activity, as determined by the department in accordance with the Outdoor Advertising Act and ARM 18.6.203.

(4) Off-premise signs may be located in areas in which both the future land use map and the current land development regulations designate the property for commercial or industrial development. In areas in which the future land use map and land development regulations do not specifically designate the parcel as commercial or industrial, but allow for multiple uses on the parcel including commercial or industrial, the department shall employ a use test to determine the appropriateness of the location for an off-premise sign permit as follows:

(a) the proposed sign location shall exhibit a minimum of three conforming businesses within 1600 feet of each other;

(b) the businesses shall be on the same side of the controlled route as the proposed sign location; and

(5) Off-premise signs visible from a controlled route must be located outside the government owned right-of-way, subject to the following setback:

(a) outside an incorporated area, no further than 660 feet from the outer edge of the right-of-way;

(b) inside an incorporated area, in compliance with the setback requirements established by local ordinance or other regulation.

(6) Off-premise signs shall only be located on property for which the permit applicant or holder has written permission from the person lawfully in control of the property to erect and maintain an off-premise sign.

(7) The provisions of this section shall not be deemed to supersede the rights and powers of counties and municipalities to enact outdoor advertising or sign ordinances.

(8) Off-premise signs permitted by the department shall also comply with all federal, state, county, and local statutes, rules, and ordinances on outdoor advertising.

AUTH: 75-15-121, MCA

IMP: 75-15-111, MCA

REASON: The proposed new rule is necessary to establish a category of signs known as "off-premise" signs as distinguished from "on-premise" signs in the previous new rule. The proposed new language will clarify the two categories of sign types established by the Outdoor Advertising Act, as well as how the sign type is determined by the department. The proposed new rule will also establish the requirement for off-premise signs to conform with local city and county regulations.

NEW RULE III FEES (1) Fees shall be transmitted by check payable to the Montana Department of Transportation. The department assumes no responsibility for loss in transit of such remittances. Applicants not submitting proper fees will be notified by the department. Fees are nonrefundable.

(2) The fees shall be as follows:

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

(b) Initial permit fee for sign size:

(i) 32 sq. ft. or less $ 10.00

(ii) 33 sq. ft. to 375 sq. ft. $ 50.00

(iii) 376 sq. ft. to 672 sq. ft. $ 100.00

(iv) multiple face signs $ 150.00

(i) 32 sq. ft. or less $ 15.00

(ii) 33 sq. ft. to 375 sq. ft. $ 75.00

(iii) 376 sq. ft. to 672 sq. ft. $ 150.00

(iv) multiple face signs $ 225.00

(d) Replacement permit plate $ 20.00

AUTH: 75-15-121, MCA

IMP: 75-15-122, MCA

REASON: The new rule is necessary to better organize the fees charged by MDT's Outdoor Advertising Control section so that all applicants and permit holders may be notified of fees which will be charged by the department. Previously, the fees were scattered throughout the rules, making it difficult for the public to locate the appropriate fees. The proposed language will: retain the current inspection fee; decrease the initial permit fee by eliminating the monthly prorated amount previously charged; retain the current renewal fee for larger signs; decrease the renewal fee for smaller signs; and retain the current replacement permit plate fee. The department estimates the fee decreases will affect approximately 150 persons (new sign permit applicants and permit holders renewing smaller size signs) and will result in an estimated $5260 decrease in annual revenue.

NEW RULE IV MOBILE ADVERTISING DEVICES - SIGNS ON VEHICLES

(1) Off-premise mobile advertising devices on vehicles which are traveling on controlled routes are not subject to the provisions of the Outdoor Advertising Act or administrative rules while traveling.

(2) Vehicles 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.

(3) Signs on registered or unregistered motor vehicles, including but not limited to: semi-truck trailers, buses, trucks, RVs, mobile homes, or similar wheeled conveyances, which are determined by the department to be permanently or semi-permanently parked and clearly advertising to a controlled route shall be prohibited unless properly permitted under the provisions of the Outdoor Advertising Act and these administrative rules.

AUTH: 75-15-121, MCA

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

REASON: The proposed new rule is necessary to clearly prohibit the use of mobile advertising devices, or car wrap-type signs which are usually placed on the side of an operational vehicle, and then parked for some length of time along a controlled route where they are visible to the public as advertising devices, without meeting the statutory requirements for permits, placement, etc. The vehicle is often frequently moved to a new location, with the sign owner then stating the new location is a "new sign" in a "new site" to avoid any regulations or permit requirements for off-premise advertising. The new rule will allow the department to enforce the prohibition on these signs as illegal advertising. The proposed rule will also require the permanent removal of unlawful advertising from parked semi-truck trailers and similar vehicles.

NEW RULE V REPAIR, RECONSTRUCTION, OR RELOCATION OF CONFORMING SIGNS (1) Repair, reconstruction, or relocation of a conforming sign which results in a change from that shown on the last approved permit application will require a new application for upgrade of the existing permit and will be charged the appropriate additional fees. Failure to obtain a permit upgrade prior to performing the repair, reconstruction, or relocation may result in revocation of the permit. Changes requiring a permit upgrade include changes in:

(a) location;

(b) height;

(d) area on which copy appears;

(e) number or position of the facings;

(f) types of materials used (e.g., wood to steel); or

(g) additions to the sign structure (e.g., adding lights).

(2) Any application for relocation, revision, or upgrade must meet the standard of lawful ordinance, regulation, or resolution of county or local government and the upgrade application must be approved by the county or local government, and approved by the landowner, before consideration by the department.

(3) The sign owner must obtain written permission from the land owner or other person in lawful possession or control of the new proposed site to relocate a conforming permitted sign. The proposed relocation site must meet all zoning requirements or qualify as an unzoned commercial or industrial area.

(4) No outdoor advertising structure may be maintained from across right-of-way control access fences or boundaries.

AUTH: 75-15-121, MCA

IMP: 75-15-111, 75-15-121, MCA

REASON: The proposed new rule is necessary to separate requirements for repair of conforming signs from nonconforming signs. Previously, the language for repair of both types of signs was contained in the same rule, and was therefore difficult to find. This new rule moves existing language on the requirement of a new upgrade application for repair and reconstruction of conforming signs to its own separate rule, and adds language on additional changes such as addition of lights, etc. thus making it easier to locate information on repair, reconstruction, or relocation of conforming signs only.

NEW RULE VI TEMPORARY SIGNS (1) Temporary signs are considered on-premise signs and may be erected in all zoning districts along controlled routes without permits for the purposes described in this rule only. Temporary signs must not:

(a) exceed 32 square feet in size;

(b) be placed on any location other than private property and may only be placed with the permission of the property owner;

(d) be attached on fences, power poles, traffic signal poles or boxes, street lights, trees, rocks, or other natural features;

(e) obstruct the view of motor vehicle operators or create a traffic hazard;

(f) be located within 500 feet of an intersection at grade along a primary highway, or within 500 feet of an interchange or rest area on the interstate highway system as measured from the beginning of the pavement widening for the interchange;

(g) be erected or maintained outside the time limits set forth in this rule for each category of temporary signs.

(2) Temporary signs must be removed within the time limits set forth for the sign category in this rule. The department shall notify the landowner of illegal signs which are not removed within ten days of the time limit expiration. The signs shall be removed by the department 24 hours after notification to the landowner.

(3) Temporary signs which meet criteria for the following categories may be erected:

(a) Temporary construction site identification signs erected during the construction period of a structure for the purpose of identifying the project, the owner or developer, architect, engineer, contractor and subcontractors, funding sources, and related information including but not limited to sale or leasing information. Construction site identification signs must not be erected prior to the issuance of a building permit, and must be removed from the subject site before the issuance of a certificate of occupancy.

(b) Temporary real estate sale or lease directional signs erected for the purpose of directing interested persons to the location of a property actively listed for sale or lease. Real estate directional signs may only be erected during the period of a realtor's listing agreement for sale or lease of real property, or for 120 days of active sale activities without a listing agreement. The signs must be removed from the subject site no later than 15 days after the sale of the listed property or expiration of the listing agreement.

(c) Other temporary signs at the department's discretion, including but not limited to charity events or causes and public service announcements.

AUTH: 75-15-121, MCA

IMP: 75-15-111, 75-15-121, MCA

REASON: The proposed new rule will establish standards for temporary signs. The rule is necessary because temporary signs have been used in the past, with no clear guidance to the public or the department as to size, location, length of time in place, etc. The proposed new rule will clarify the types of temporary signs which are allowed, and set standards for their use in Montana.

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

18.6.202 DEFINITIONS (1) "Abandoned sign" means a sign that is not maintained as required by these rules or meets any of the following:

(a) the sign remains in the absence of a valid lease;

(b) the sign has been without a message for a period of at least three months;

(d) the sign is significantly damaged or dilapidated;

(e) the sign structure has not been erected;

(f) the sign structure has been removed; or

(g) the sign owner fails to pay the appropriate sign fees.

~~(1)~~ (2) "Advertising device" means any outdoor sign, display, device, figure painting, drawing, message, placard, poster, billboard, structure, or any other contrivance designed, intended, or used to advertise or to give information in the nature of advertising and having the capacity of being visible from any place on the main traveled way of any interstate, national highway system, or federal-aid primary highway system. This includes any device located outside or on the outside of any building which identifies or advertises any business, enterprise, organization or project, product, or service, including all parts such as frames and supporting structures located on any premises by means of painting on or attached bills, letters, numerals, pictorial matter, or electric or other devices including any airborne device tethered to any building, structure, vehicle, or other anchor and an announcement, notice, directional matter, name, declaration, demonstration, display, mural, or insignia, whether permanent, temporary, or portable installation. The term includes the sign face(s) and the sign structure. ~~(monuments,~~ Monuments, gravestones, and dedication markers are not considered advertising devices). Advertising device is synonymous with sign.

(3) "Apron" or "base" means the area beneath the bottom molding of the front of a billboard.

(4) "Back to back" means billboard faces erected on one structure facing in opposite directions.

(5) "Blank sign" means a sign structure that has no face or has faces without 100 percent advertising copy. The term includes all faces not leased, rented, or otherwise occupied by commercial advertising or a public service message. The term also includes signs containing notices the sign is for rent or lease.

(6) "Commercial advertising" means advertising of commercial interests which promotes merchandisers' goods and services and creates a potential financial benefit as a result of the exposure of the business name rather than advocating a social or political cause.

(2) remains the same but is renumbered (8).

~~(3)~~(7) "Commercial or industrial activity" ~~means~~ is defined at 75-15-103, MCA, and has the additional meaning of an activity which is permitted only in a commercial or industrial zone or a less restrictive zone by the nearest zoning authority within the state, except that none of the following is a commercial or industrial activity:

(a) through (i) remain the same.

(9) "Commercial or industrial zone or area" is defined at 75-15-103, MCA, and has the additional meaning of those districts established by the zoning authorities as being most appropriate for commerce, industry, or trade, regardless of how labeled. The zones are commonly categorized as commercial, industrial, business, manufacturing, highway service or highway business (when these latter are intended for highway-oriented business), retail, trade, warehouse, and similar classifications.

~~(4)~~(10) "Conforming sign" means ~~one which was lawfully erected and which complies with spacing, zoning, size, lighting and all other requirements under the Outdoor Advertising Act and the outdoor advertising regulations~~ a sign legally erected and maintained in accordance with federal, state, and local laws.

(11) "Controlled route" means any route on the national highway system, which includes the interstate system, and any route on the former federal-aid primary system in existence on June 1, 1991.

(12) "Customary maintenance" means the action necessary to keep a sign in good condition by replacement of parts damaged or worn by age, or painting of areas exposed to the weather.

(13) "Destroyed sign" means a sign that is no longer in existence due to factors other than vandalism or other criminal or tortious acts. The term includes a sign which has been blown down by the wind and sustains damage in excess of 50 percent.

(14) "Dilapidated sign" means a sign which is shabby, neglected, or in disrepair, or which fails to be in the same form as originally constructed, or which fails to perform its intended function of conveying a message. Characteristics of a dilapidated sign include, but are not limited to structural support failure, a sign not supported as originally constructed, panels or borders missing or falling off, intended messages that cannot be interpreted by the motoring public, or a sign which is blocked by overgrown vegetation outside the highway right-of-way.

(15) "Directional sign" means a sign erected for the purpose of identifying publicly or privately owned places that feature natural phenomena or ranch locations; historical, cultural, scientific, religious, or educational opportunities; areas of scenic beauty or outdoor recreation areas; or ranch activities.

(16) "Discontinued sign" means a sign no longer in existence. A discontinued sign includes a sign of which any part of a sign face is missing for more than 60 days. In some cases, a sign may be both discontinued and dilapidated.

(5) remains the same but is renumbered (17).

(18) "Facing" means the direction that a panel is exposed to display advertising copy.

(6) "Federal/state agreement" means the agreement entered into January 27, 1972, by and between the United States of America, represented by the secretary of transportation and the state of Montana, through the Department of Transportation to promote the reasonable, orderly, and effective display of outdoor advertising while remaining consistent with the national policy to protect the public investment in interstate and primary highways, to promote the safety and recreational value of public travel and to preserve the natural beauty. At a minimum the state of Montana shall implement and carry out the provisions of 23 USC 131, and the national policy in order to remain eligible to receive the full amount of all federal-aid highway funds apportioned under 23 USC 104.

(19) "Gore" means the beginning or ending of the pavement widening at the exit from or entrance to the main-traveled way on highway interchanges.

(20) "Illegal sign" means those signs which are erected or maintained in violation of laws.

(21) "Illuminated" means outdoor advertising structures with electrical equipment installed for illumination of the message at night.

(22) "Interchange" means a junction of two or more highways by a system of separate levels that permit traffic to pass from one to another without the crossing of traffic streams, and a system of interconnecting roadways in conjunction with one or more grade separations that provides for the movement of traffic between two or more roadways or highways on different levels.

(23) "Intersection" means a system of two or more interconnecting roadways without a grade separation providing for the exchange of traffic. Only a road, street, or highway which enters directly into the main-traveled way of an interstate or primary highway is regarded as intersecting. An alley, undeveloped right-of-way other than an interstate or primary highway, a private road, or a driveway are not regarded as an intersecting street, road, or highway.

~~(7)~~(24) "Main-traveled way" means the interstate, national highway system, and federal-aid primary highway system on which through traffic is carried. In case of a divided highway, the traveled way of each of the separated roadways for traffic in opposite directions is a main-traveled way. The term does not include such facilities as frontage roads, turning roadways, or parking areas.

(25) "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.

~~(8)~~(26) "Noncommercial sign" means a sign that does not display a commercial ~~message~~ advertising. ~~For the purpose of this rule, only "public service" signs such as DARE, or ABATE, are considered noncommercial signs.~~ The ~~Montana~~ department ~~of Transportation~~ shall make the determination of a noncommercial sign designation on a case-by-case basis. The term does not include official signs.

~~(9)~~(27) "Nonconforming sign" ~~means one~~ is defined in 75-15-111, MCA, and also has the meaning of an outdoor advertising structure which was lawfully erected but which does not comply with the provisions of state law or state ~~regulations~~ administrative rules passed at a later date, or which fails to comply with state law or state ~~regulations~~ administrative rules due to changed conditions. ~~Illegally~~ The term does not include illegally erected or maintained signs ~~are not nonconforming signs~~.

(28) "Obsolete sign" means a sign that identifies or advertises a business or other entity that has relocated or no longer exists, or products or services that are no longer available, or events or activities that occurred in the past.

(10) remains the same but is renumbered (29).

~~(11)~~(30) "Off-premise ~~signs~~ sign" means ~~all signs which are not on-premise signs as defined in (11)~~ a sign directing attention to a specific business, product, service, entertainment event or activity, or other commercial activity that is not sold, produced, manufactured, furnished, or conducted at the property upon which the sign is located.

~~(12)~~(31) "On-premise sign" means signs erected on property for the sole purpose of advertising its sale or lease or of advertising an activity conducted on the property. Physical facts rather than property lines determines whether the premises on which an activity is conducted qualifies to allow an on-premise sign. The sign must be located on the same premises as the activity or property advertised. Premises include the area occupied by the buildings and appurtenances such as parking lots, storage areas, processing areas or areas for the physical uses that are customarily incidental to the activity, including open spaces arranged and designed to be used in connection with the buildings or activities, but does not include vacant land, land used for unrelated activities, or land that is separated by other ownerships or roadways. The purpose of the advertising sign must be the identification of the establishment or activity located on the premises or its products or services, or the sale or lease of the property on which the sign is located. If the activity is over 660 feet from the nearest point of the highway and is accessed by an approach and road from the highway, any sign, landscaped area or other appurtenance associated with the activity that is adjacent to the approach and access road shall not be used to qualify off-premise signs a sign which consists solely of the name of the establishment or which identifies the establishment's principal or accessory products or services offered on the property or advertises the sale or lease of the property on which the sign is located. The sign must be located on the same premises as the establishment, activity, or property advertised.

(32) "Panel" means a billboard face, but can also refer to a single sign structure.

(33) "Permit" means a license granted by state or local government that authorizes a sign structure to be erected and maintained at a specific site.

(34) "Right-of-way" means the area along a highway or arterial street that is under the control of a city, county, or state.

~~(13)~~(35) "Sign face" means ~~that~~ the surface of the sign that carries the advertising message and is the portion of the sign structure visible from a single direction of travel and available for advertising. It includes border and trim, but excludes the base or apron, supports, and other structural members. The total area of all sign faces may also be referred to as the "sign area." One sign structure may have more than one face.

(14) remains the same but is renumbered (36).

(37) "Spot-zoning" means the labeling of tracts near highway interchanges as "commercial" or "industrial" solely to permit advertising devices.

(38) "Strip-zoning" means the labeling of any stretch of land adjacent to controlled highways as "commercial" or "industrial" solely to permit advertising devices.

(39) "Trim" means the moldings surrounding the face of a sign structure.

(40) "Unzoned commercial or industrial area" is defined in 75-15-103, MCA, and also has the meaning of an area with no comprehensive zoning, or where a local municipality cannot zone.

(41) "V-type sign" means a sign structure that consists of multiple sign facings placed at angles to each other, oriented in different directions and not exceeding ten feet apart at the nearest point of each other.

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 add definitions for words and phrases which are used throughout the outdoor advertising rules. Previously, undefined words and terms caused difficulties for both department staff and the public in deciding whether certain existing outdoor signs or advertising properly met MDT's statutes and rules for regulation of outdoor advertising. The proposed amendments will clarify and simplify use of the administrative rules in the area of outdoor advertising. The proposed amendments will also bring Montana rules in compliance with federal regulations.

18.6.203 UNZONED COMMERCIAL OR INDUSTRIAL ACTIVITY

(1) ~~As clarification of the statutory requirements, the~~ The following criteria shall be used to determine whether an activity qualifies an area to be considered unzoned commercial or industrial:

(a) ~~The~~ the commercial or industrial permanent buildings, or improvements, or industrial activities area comprising a business used to qualify an area must be located within 660 feet of the right-of-way of an interstate or primary highway. ;

(b) A a commercial or industrial business ~~located on what is primarily used as residential property will not qualify an area as an unzoned commercial or industrial area.~~ may not be located inside a structure which is also used as a residence, nor in a building intended for use by the resident such as a garage or other outbuilding. If a residence exists on the location, the business must be located in a separate building from the residence, and must meet all requirements in this rule for utilities, parking, etc.;

(c) ~~Commercial~~ commercial and industrial activities shall have been in business at least one year prior to being considered as qualifying the area as an unzoned commercial or industrial area. ;

~~(b)~~(d) ~~The~~ the permanent buildings or improvements comprising a commercial business intended to serve the traveling public must be clearly visible to the traveling public and be easily recognizable as a commercial activity. ;

(e) A a commercial activity must be connected to one or more utilities and shall be occupied and open to the public during regularly scheduled hours in excess of 20 hours per week. ;

(f) ~~Signs~~ signs, displays, or other devices identifying the commercial or industrial business may be considered in the determination of visibility. ;

(g) ~~Seasonal~~ seasonal (but not temporary or transient) commercial or industrial activities may be considered as a qualifying activity at the discretion of the ~~Montana~~ department ~~of Transportation.~~ ;

(h) ~~Industrial activities comprise the area~~ readily identifiable areas used for industrial activities exist in which the primary uses are the manufacturing, servicing, or storage of goods occupied by the regularly used buildings, parking lot or storage or processing area of an industrial activity located within 660 feet of an interstate or primary highway not predominantly used for commercial purposes. ;

(c) If the activity is over 660 feet from the nearest point of the highway, and is accessed by an approach and road from the highway, any sign, landscaped area or appurtenance associated with the activity adjacent to the approach and access road shall not be used to qualify off-premise signs.

(i) a commercial activity shall have direct vehicular access from a public road that is normal and customary for ingress and egress by the public to the activity as well as adequate parking to accommodate public access;

(j) a commercial activity shall include customary facilities such as indoor restrooms, running water, functional electrical connections, and adequate heating and shall be equipped with a permanent flooring from material other than dirt, gravel, or sand;

(k) a commercial or industrial 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;

(l) any commercial or industrial building shall have a permanent foundation, built or modified for its current commercial or industrial use. Where a mobile home is used as a business office, all wheels and axles and springs shall be removed. The vehicle shall be permanently secured on piers, pad, or foundation;

(m) a self-propelled vehicle shall not qualify for use as a commercial or industrial business or office for the purpose of these rules.

~~(d)~~(2) A maximum of two signs shall be permitted from a qualifying activity, . ~~and they~~ The sign(s) shall be located on the same side of ~~and adjacent to~~ the controlled highway of 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. 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) Unzoned commercial or industrial areas are not created when:

~~(e)~~(a) No an industrial or commercial activity ~~which~~ is located either partially or totally within an area which has been zoned by a bona fide state, county, or local zoning authority ~~may be used to qualify an area as an unzoned commercial or industrial area.~~ ;

~~(f)~~(b) A a commercial or industrial activity is engaged in or established primarily for the purpose of qualifying an area for the displaying of outdoor advertising; ~~will not create an unzoned commercial or industrial area. It shall be rebuttably presumed that any such activity is for the primary purpose of qualifying an area for outdoor advertising~~ ~~if the activity is not reasonably accessible to the public, if it is not connected to one or more utilities, or if no business is actually conducted on the premises.~~

(c) commercial or industrial activities are incidental to or different from primary land uses in the immediately adjacent surrounding area;

(d) activities are conducted in a building that is used to store trade equipment or that is not integral to the business operation where actual business transactions take place;

(e) spot-zoning or strip-zoning of an area for the displaying of outdoor advertising has occurred.

(4) If the qualifying commercial or industrial business at the sign location ceases for a period of nine months, the sign will be deemed nonconforming, and must adhere to all outdoor advertising statutes and rules on repair or replacement of nonconforming signs. If a qualifying commercial or industrial business again becomes operational at the sign location, the sign will revert to its former conforming status for the duration of the business operation and nine months thereafter.

AUTH: 75-15-121, MCA

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

REASON: The proposed amendment is necessary to clarify the types of activities and premises which may qualify property as an unzoned commercial or industrial activity sufficient to allow a sign with off-premise advertising to be placed on the property. The proposed rule amendment would give additional detail to allow MDT and the public to ascertain whether the activity conducted on the site would qualify the property for an off-premise sign. The amended language clarifies when the statutory requirement has been met. The proposed amendments will also bring Montana rules in compliance with federal regulations found at 23 CFR � 750.

18.6.211 PERMITS (1) A permit must be obtained for each outdoor advertising sign which meets the requirements of the Montana Outdoor Advertising Act 75-15-101, et seq, MCA, and these rules.

(2) A check payable to the Montana Department of Transportation in the amount of the nonrefundable inspection fee and the nonrefundable initial permit fee must accompany the sign permit application.

(3) A nonrefundable inspection fee ~~in the amount of $100.00 will~~ shall be assessed for each off-premise outdoor advertising sign erected within any area subject to state control by the department.

(4) ~~The~~ An initial permit fee shall be ~~24/36 of the three-year renewal fee plus 1/36 of said renewal fee for each full month remaining in each calendar year following application approval~~ assessed for each off-premise outdoor advertising sign.

~~(5) The initial permit fee must be paid within 30 days from the approval of the application or the permit may be canceled.~~

~~(6)~~(5) Signs shall be assigned a permit number and given a permanent identification plate that must be attached to the structure. 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) Permits ~~and~~ may be renewed every three years ~~thereafter~~ on the appropriate January 1 renewal cycle date upon payment of a renewal fee ~~as follows:~~

~~(a) 20 cents per square foot for signs 376 feet or more;~~

~~(b) if the sign structure has multiple sign faces, the renewal fee is based on the total square footage of the sign area; or~~

~~(c) $75.00 for signs with a face(s) of 375 square feet or less~~.

(7) and (8) remain the same.

(9) Ownership of a sign permit ~~will~~ may not be transferred without the expressed written consent of the permit holder(s) on a form provided by the department. The current permit holder(s) must sign the ~~document~~ form transferring the permit.

(10) Permits ~~cannot be canceled except by~~ may be relinquished at the written request of either the permit holder(s) or the landowner(s) subject to the department's approval. ~~or by violations of the provisions of the Outdoor Advertising Act.~~ The document requesting ~~cancellation~~ relinquishment of a permit must be signed by the current permit holder or the landowner(s).

~~(11)~~ If the permit holder(s) are unable or unwilling to sign the ~~cancellation~~ relinquishment document, the landowner(s) may request ~~cancellation~~ revocation of the permit by providing the department with a document stating the reason for ~~cancellation~~ revocation such as termination of the land lease between the permit holder(s) and the landowner(s) and indicating whether the landowner(s) ~~have~~ has purchased the sign structure or if the sign structure will be removed. The landowner(s) must sign this document.

(11) Permits may be revoked upon a finding of a violation of the provisions of the Outdoor Advertising Act or the outdoor advertising administrative rules.

AUTH: 75-15-121, 75-15-122, MCA

IMP: 75-15-122, MCA

REASON: The proposed amendment is necessary to clarify the types of outdoor advertising signs which require permits, as the requirements are currently scattered throughout statutes and rules, and are difficult to locate. The proposed amendment is also necessary to remove fee language from this rule, as all fee schedules will now be contained in only one fee rule, currently proposed as New Rule III. This amendment will assist applicants and permit holders in locating correct fees for sign applications and permit renewals. The proposed amendment will also standardize revocation language and reorganize some rule language for clarity.

18.6.212 PERMIT APPLICATIONS - NEW SIGN SITES (1) Applications for outdoor advertising permits will be processed in the order that they are received by the department. Applications will be date-and-time stamped upon receipt by the department.

(2) If applications for outdoor advertising permits are received by the department for two or more signs in such proximity to each other, or to existing permitted signs, or for any other reason such that only one of them may receive a state outdoor advertising permit, they will be considered in the order in which they are received by the department.

(3) An application rejected for incompleteness, inaccuracy, or other valid cause shall not retain its place before other competing applications (if any), but, if resubmitted, will be considered a new application as of the date and time it is received.

~~(1)~~(4) Applications for permits shall be submitted on forms provided by the department and must contain a minimum of the following:

(a) through (d) remain the same.

(e) description of structure including width of sign, height of sign, height of structure, type of sign (single-faced, double-faced, v-type, multi-faced), lighted (yes/no), and estimated cost of construction to include labor and material; ~~and~~

(f) landowner consent. ;

(g) property description or legal description; and

(h) a scale drawing with all details of the proposed sign structure, including accurate dimensions. 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.

~~(2)~~(5) Applications for permits must be accompanied by the following:

~~(a) sketch of the area to include the legal description of the proposed sign location;~~

~~(b)~~(a) both the non-refundable ~~application~~ inspection fee and the nonrefundable initial permit fee;

(b) a local zoning certification for outdoor advertising on a form provided by the department; and

(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.

(3) remains the same but is renumbered (6).

(7) Approval of an application and issuance of a permit does not alleviate an applicant from responsibility to comply with all applicable county or local regulations. Any violation of county or local regulations may result in revocation of the permit.

AUTH: 75-15-121, MCA

IMP: 75-15-122, MCA

REASON: The proposed amendment is necessary to set forth the process by which the department receives and prioritizes sign applications. The current rule language does not address the situation of multiple permit applications, nor explain the department's process in assigning highest priority. The proposed rule language will assist applicants in understanding prioritization. The proposed amendment will also clarify sketch measurements as attached to an application. The proposed amendment will also specifically notify applicants that local and county outdoor advertising regulations must also be followed so applicants may comply with this requirement before submitting an application to the department.

18.6.213 PERMIT ATTACHMENT (1) remains the same.

(2) The permit plate ~~shall~~ must be attached to the sign or the supporting structure near the lower left corner of the sign (or supporting pole/beam) facing the traffic. The permit plate must be visible from the roadway.

(3) Permits which are affixed to the wrong sign or are otherwise in violation of requirements may be ~~canceled~~ revoked by the department if the deficiency continues for more than 30 days.

(4) If the department ~~cancels~~ revokes a permit, the sign for which the permit was issued becomes an illegal sign and must be removed.

(5) If the original permit plate has been lost or destroyed, a ~~substitute~~ replacement permit plate may be obtained from the department upon application and payment of a ~~$20.00~~ fee listed in [NEW RULE III].

AUTH: 75-15-121, MCA

IMP: 75-15-122, MCA

REASON: The proposed amendments will clarify rule language on the mandatory requirement of permit plates. The proposed amendments will also update language from "cancel" to "revoke" to better describe the process by which the department may terminate a permit under the statutes. Finally, the proposed amendment will delete the fee language from this rule, as all fee language will now be found in the fee rule at proposed New Rule III.

18.6.214 RENEWALS (1) ~~Although the department plans, as a courtesy, to remind sign owners to apply for renewal of permits,~~ A renewal notice may be sent by the department. The department's failure to issue such notice will not ~~serve to~~ excuse the sign owner from ~~his~~ the sign owner's duty to make proper application for renewal of a permit. Failure to submit the mandatory sign permit renewal fee within 30 days after expiration of the permit may result in ~~cancellation~~ revocation.

AUTH: 75-15-121, MCA

IMP: 75-15-122, MCA

REASON: The proposed amendment is necessary to explain the department is not mandated to send out permit renewal notices, but the duty to timely renew remains with the permit holder. The proposed amendment will also make the rule language gender neutral. Finally, the proposed amendment will update the permit discontinuance process language from "cancel" to "revoke."

18.6.221 NEW SIGN ERECTION - CONSTRUCTION STANDARDS (1) ~~The sign owner within six~~ Within three months of the date of issuance of the permit, which is the date the application was approved, the sign owner will:

(a) remains the same.

~~(i) an extension of time to erect the structure may be granted upon written request from the sign owner and at the discretion of the Montana Department of Transportation;~~

(b) through (e) remain the same.

(2) ~~Signs may not be moved and re-erected in a new location without obtaining a new permit.~~ When construction has been delayed through no fault of the applicant, an extension of time to erect the structure may be granted upon written request from the sign owner which explains the reason for the request. Extensions may be granted at the discretion of the department. In no instance will the availability of materials or contract problems qualify for a time extension.

(3) Where a sign is erected with the purpose of its message being read from two or more highways, one or more of which is a controlled highway, the more stringent of application control requirements will apply.

(4) Signs shall be rigidly suspended by means of fastening or supports so as not to be free-swinging, nor a danger to persons or property.

(5) Sign structures shall be designed and constructed to withstand wind loads of 80 miles per hour or greater.

AUTH: 75-15-121, MCA

IMP: 75-15-113, 75-15-122, MCA

REASON: The proposed amendment is necessary to better organize the rule language to clarify the reasons for grant or denial of an extension of time to erect a sign. The proposed amendment will also explain the department's process in situations where the sign is visible from two or more highways, and set construction standards for signs.

18.6.231 OFF-PREMISE SIGN ~~SPACING~~ STANDARDS (1) ~~Alleys, undeveloped rights-of-way, private roads and driveways shall not be regarded as intersecting streets, roads or highways.~~ Standards for off-premise permitted signs are found at 75-15-113, MCA, and include the additional standards in this rule, unless otherwise controlled by standards for the specific type of sign (church and service clubs, directional, cultural, noncommercial, or official) as found in these rules.

(2) ~~Only roads, streets and highways which enter directly into the main-traveled way of the primary highway shall be regarded as intersecting.~~ 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 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 an intersection in rural areas, or within 140 feet of an intersection in cities or towns;

(e) signs must not be located within 500 feet of any of the following that are adjacent to the controlled route unless the signs are in an incorporated area:

(i) public parks;

(ii) public forests;

(iii) public playgrounds; or

(iv) scenic areas designated as such by the department or other state agency having and exercising this authority;

~~(3)~~(f) ~~Official~~ official and "on-premise" signs shall not be counted nor shall measurements be made from them for purposes of determining compliance with ~~the above~~ off-premise sign spacing requirements. ;

~~(4)~~(g) ~~The~~ the minimum distance between signs shall be measured along the nearest edge of the pavement between points directly opposite the signs. ;

~~(5)~~(h) ~~Multi~~ multi-faced, back-to-back, and v-type signs shall be considered as a single sign or structure.

~~(a)~~ Multi-faced signs may be positioned side-by-side on a single structure or stacked vertically on a single structure, and are to be considered as one sign for spacing and permitting purposes. ;

~~(b)~~(i) ~~Side~~ side-by-side signs on individual structures are considered as two signs for both spacing and permit requirements.

(c) V-type sign means two signs erected independently of each other with multiple display surfaces having single or multiple messages visible to traffic from opposite directions, with an interior angle between the two signs of not more than 120 degrees and the signs separated by not more than 10 feet at the nearest point.

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

(a) signs, including the total number of sign faces facing the same direction, must not exceed 672 square feet in area, including border and trim, but excluding base or apron, supports, or other structural members;

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

(c) signs 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.

(4) Off-premise permitted signs on controlled routes which have any of the following characteristics shall not be erected nor maintained:

(a) signs advertising activities that are illegal under state or federal laws, rules, or regulations in effect at the location of such signs or at the location of such activities;

(b) illegal, destroyed, abandoned, or discontinued signs;

(d) signs that are not securely affixed to a substantial structure;

(e) signs which attempt or appear to attempt to direct the movement of traffic or which interfere with, imitate, or resemble any official traffic sign, signal, or device;

(f) signs which prevent the driver of a vehicle from having a clear and unobstructed view of at-grade intersections, approaching or merging traffic, official traffic control signs, or other traffic control devices;

(g) signs which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights;

(h) signs which have lights that change intensity or color, lasers, strobe lights, or other lights with stroboscopic effect;

(i) signs which use lighting in any way unless it is so effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled way of the highway, or is of such low intensity or brilliance as to not cause glare or to impair the vision of the driver of any motor vehicle, or to otherwise interfere with any driver's operation of a motor vehicle;

(j) signs which move or have any animated or moving parts;

(k) signs which are erected or maintained upon fences, power poles, traffic signal poles or boxes, street lights, trees, or painted or drawn upon rocks or other natural features;

(l) signs located within ten feet of a property line of a residential zoning district or an existing residential use, or within ten feet of a public right-of-way which do not aim the light fixture away from the property line, residential use area, or right-of-way line and shield the side closest to the property line, residential use area, or right-of-way line so that the light fixture illuminates only the face of the sign;

(m) roof signs, inflatable signs, snipe signs, banners, pennants, wind-operated devices, sandwich signs, moving signs, freestanding signs, flashing signs, beacon light signs with moving or alternating or traveling lights;

(n) signs located in a scenic area or parkland area;

(o) signs located within government owned right-of-way limits, except for specific information signs and tourist oriented directional signs under 60-5-501, MCA.

AUTH: 75-15-121, MCA

IMP: 75-15-113, 75-15-121, MCA

REASON: The proposed amendment is necessary to notify the public of standards for off-premise signs, some of which are contained in statute, but which standards are expanded through this rule. Although the department may not unnecessarily repeat statutory language in the administrative rules, the rule must direct the public to the standards so they are not overlooked. The proposed amendments will clearly set forth standards for spacing, size, and characteristics of off-premise signs visible from controlled routes. Previously, the standards were scattered throughout the rules and more difficult to locate. The amendment will reorganize the rule language for ease of reading. Finally, the amendment will delete unnecessary definitional language from the rule, as this information is contained elsewhere in the rules.

18.6.241 CHURCH AND SERVICE CLUB SIGNS (1) remains the same.

(a) Not more than a total of four signs may be erected by any one group, of which no more than three can face in the same direction of travel. ;

(b) Signs may not be more than five miles from where the meetings or functions are regularly held. ;

(d) The activity advertised must be a regularly scheduled daily, weekly, monthly, or quarterly meeting, function or gathering which members of the traveling public using the highway will be likely to want to find and attend. Signs 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;

(e) Signs visible from controlled routes must not be located within 500 feet of an intersection in rural areas, or within 140 feet of an intersection in cities or towns;

(f) Signs visible from interstate highways must not be located within 500 feet of the gore of an interchange;

~~(e)~~(g) ~~The normal prescribed permit application fee shall apply to church and service club signs.~~ Public forests, public playgrounds, and designated scenic areas shall be considered to be a conforming area with respect to the erection of these signs. ;

(h) Church and service club signs shall meet all general restrictions on characteristics for off-premise signs found in ARM 18.6.231;

(i) The activity advertised must be a regularly scheduled daily, weekly, monthly, or quarterly meeting, function, or gathering which members of the traveling public using the highway will be likely to want to find and attend;

(f) remains the same but is renumbered (j).

(2) A permit must be obtained for each church or service club sign accompanied by a nonrefundable inspection fee. There is no initial permit fee or renewal fee for church or service club signs.

AUTH: 75-15-121, MCA

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

REASON: The proposed amendment is necessary to more clearly set forth standards for church and service club signs. The proposed amendment will also specifically state a permit is required for church or service club signs because the current language does not make this requirement clear. The proposed amendment will also clarify church and service club signs are not subject to initial permit fees or permit renewal fees.

18.6.243 DIRECTIONAL SIGNS (1) Directional ~~and other official~~ signs ~~and notices, which signs and notices include, but are not limited to, signs and notices~~ pertaining to natural wonders, scenic and historical attractions, ~~as authorized or required by law are, in addition to statutory rules and regulations promulgated by the commission, subject to standards promulgated by the Federal Highway Administration.~~ or ranching, grazing, or farming activities may be erected and maintained providing the signs shall be limited to the identification of the attraction or activity and directional information useful to the traveler in locating the attraction, such as mileage, route numbers, or exit numbers. Descriptive words or phrases, and pictorial or photographic representations of the activity or its surrounding areas are prohibited. To be eligible, privately owned attractions or activities must be nationally or regionally known, and of interest to the traveling public.

(2) Directional signs shall not exceed the following size limits:

(a) maximum area � 32 square feet;

(b) maximum height � 4 feet;

(3) Directional signs shall meet the following spacing requirements:

(a) directional signs visible from controlled routes must not be located within 500 feet of an intersection in rural areas, or within 140 feet of an intersection in cities or towns;

(b) directional signs visible from interstate highways must not be located within 500 feet of the gore of an interchange;

(c) directional signs must not be located within 500 feet of any of the following that are adjacent to the controlled route unless the signs are in an incorporated area:

(i) public parks;

(ii) public forests;

(iii) public playgrounds; or

(iv) scenic areas designated as such by the department or other state agency having and exercising this authority;

(d) directional signs facing the same direction of travel shall be limited to signs spaced at least one mile apart;

(e) directional signs pertaining to the same activity, facing the same direction of travel, which are erected along a single route approaching the activity are limited to one sign;

(f) directional signs located adjacent to the interstate system shall be within 75 air miles of the activity;

(g) directional signs located adjacent to the primary system shall be within 50 air miles of the activity.

(4) Directional signs shall meet all general restrictions on characteristics for off-premise signs found in ARM 18.6.231.

(5) A permit must be obtained for each directional sign accompanied by a nonrefundable inspection fee. There is no initial permit fee or renewal fee for directional signs.

AUTH: 75-15-121, MCA

IMP: 75-15-111, 75-15-113, ~~75-15-121,~~ MCA

REASON: The proposed amendment will combine language from ARM 18.6.242 and 18.6.243 into one rule on directional signs. The proposed amendment is necessary because the two rules addressed the same type of signs, but did not contain identical requirements for directional signs. The proposed new language will organize and clarify all standards for directional signs for easier access by the public and by sign owners.

18.6.244 CULTURAL SIGNS (1) Signs or displays advertising cultural exhibits of nonprofit historical or arts organizations may be erected and maintained ~~within 660 feet of the nearest edge of the right-of-way of interstate and primary highways, provided the signs conform to the following standards:~~ adjacent to controlled routes.

~~(a) The following signs are prohibited:~~

~~(i) Signs advertising activities that are illegal under federal or state laws or regulations in effect at the location of those signs or at the location of those activities.~~

(ii) Signs located in such a manner as to obscure or otherwise interfere with the effectiveness of an official traffic sign, signal, or device, or obstruct or interfere with the driver's view of approaching, merging, or intersecting traffic.

~~(iii) Signs which are erected or maintained upon trees or painted or drawn upon rocks or other natural features.~~

~~(iv) obsolete signs.~~

~~(v) Signs which are structurally unsafe or in disrepair.~~

~~(vi) Signs which move or have any animated or moving parts.~~

~~(vii) Signs located in rest areas, parklands or scenic areas.~~

~~(b)~~(2) No Cultural signs shall not exceed the following size limits:

(i) through (iii) remain the same but are renumbered (a) through (c).

~~(iv)~~(d) All size dimensions include border and trim, but exclude supports.

~~(c) Signs may be illuminated, subject to the following:~~

~~(i) Signs which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights are prohibited.~~

(ii) Signs which are not effectively shielded so as to prevent beams or rays of light from being directed at any portion of the traveled way of an interstate or primary highway or which are of such intensity or brilliance as to cause glare or to impair the vision of the driver of any motor vehicle, or which otherwise interfere with any driver's operation or a motor vehicle are prohibited.

~~(iii) No sign may be so illuminated as to interfere with the effectiveness of or obscure an official traffic sign, device, or signal.~~

~~(d)~~(3) ~~The~~ Cultural signs must meet the following spacing requirements ~~must be met~~:

~~(i)~~(a) Each location of a cultural sign must be approved by the Montana Department of Transportation. ;

(ii) No cultural sign may be located within 2,000 feet of an interchange, or intersection at grade along the interstate system or other freeways (measured along the interstate or freeway from the nearest point of the beginning or ending of pavement widening at the exit from or entrance to the main traveled way).

~~(iii) No cultural sign may be located within 2,000 feet of a rest area, parkland, or scenic area.~~

(b) cultural signs visible from controlled routes must not be located within 500 feet of an intersection in rural areas, or within 140 feet of an intersection in cities or towns;

(d) cultural signs must not be located within 500 feet of any of the following that are adjacent to the controlled route unless the signs are in an incorporated area:

(i) public parks;

(ii) public forests;

(iii) public playgrounds; or

(iv) scenic areas designated as such by the department or other state agency having and exercising this authority;

~~(iv)~~(e) ~~No two cultural signs~~ cultural signs facing the same direction of travel shall be spaced ~~less~~ more than one mile apart. ;

~~(v)~~(f) ~~Not more than three~~ cultural signs pertaining to the same activity, ~~and~~ facing the same direction of travel, ~~may be~~ and erected along a single route approaching the activity. are limited to three signs;

~~(vi)~~(g) ~~Signs~~ cultural signs located adjacent to the interstate system shall be within 75 air miles of the activity; ~~and~~

~~(vii)~~(h) ~~Signs~~ cultural signs located adjacent to the primary system shall be within 50 air miles of the activity.

(e) and (f)(ii) remain the same but are renumbered (4), (5), (5)(a), and (5)(b).

(6) Cultural signs shall meet all general restrictions on characteristics for off-premise signs found in ARM 18.6.231.

~~(g)~~(7) A permit must be obtained for each cultural sign accompanied by a nonrefundable ~~application~~ inspection fee ~~as set forth in ARM 18.6.211(1)~~. ~~The~~ There is no initial permit fee or renewal fee for cultural signs ~~required by ARM 18.6.211(2) is waived~~.

AUTH: 75-15-121, MCA

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

REASON: The proposed amendments are necessary to reorganize and clarify existing rule language. The proposed new language will organize and clarify all standards for cultural signs for easier access by the public and sign owners.

18.6.245 NONCOMMERCIAL SIGNS (1) Signs displaying noncommercial messages may be erected and maintained adjacent to controlled routes.

~~(1)~~(2) If a noncommercial sign is located on property of owned by the owner of the sign, it shall be ~~considered to be an on-premise sign and not~~ subject ~~to the~~ only to the size, height, and length provisions of this rule.

~~(2)~~(3) A noncommercial sign of a local government may be erected anywhere adjacent to an interstate and primary highway within ~~its~~ the government's territorial or zoning jurisdiction, except in a scenic area or parkland, so long as the sign does not create a safety hazard to the traveling public.

~~(a)~~(4) A noncommercial sign will not be considered in determining the spacing required between conforming, permitted off-premise outdoor advertising signs ~~located off premises~~.

~~(3)~~(5) ~~"Public service"~~ Noncommercial signs shall not:

(a) through (c) remain the same.

(d) be placed outside of zoned or unzoned commercial or industrial areas. ;

(e) be located within 500 feet of an intersection in rural areas, or within 140 feet of an intersection in cities or towns;

(f) be located within 500 feet of the gore of an interchange;

(g) be located within 500 feet of any of the following that are adjacent to the controlled route unless the signs are in an incorporated area:

(i) public parks;

(ii) public forests;

(iii) public playgrounds; or

(iv) scenic areas designated as such by the department or other state agency having and exercising this authority;

(6) Noncommercial signs shall meet all general restrictions on characteristics for off-premise signs found in ARM 18.6.231.

~~(4)~~(7) A permit must be obtained for each noncommercial sign not located on property owned by the sign owner. The application must be accompanied by a nonrefundable ~~application~~ inspection fee ~~as set forth in ARM 18.6.211~~. ~~The~~ There is no initial permit fee or renewal fee for noncommercial signs ~~required by ARM 18.6.211 is waived~~.

(8) A nonconforming noncommercial sign may be sold, leased, or otherwise transferred without affecting its status, but its location may not be changed. A nonconforming noncommercial sign removed as a result of an eminent domain acquisition may be relocated along a controlled route, but cannot be reestablished at a new location as a nonconforming use.

(9) Noncommercial signs, regardless of the message, are prohibited along controlled routes unless meeting the requirements of this rule.

AUTH: 75-15-121, MCA

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

REASON: The proposed amendment will clarify rule language on noncommercial signs to better notify the public what types of signs and which sign locations are allowed for noncommercial advertising. The new language states that no renewal fee for this type of permit will be required, and that nonconforming signs will be handled the same way for noncommercial signs as for commercial signs.

18.6.246 POLITICAL SIGNS (1) Signs promoting political candidates or issues shall:

~~(a) Not be erected or maintained within the highway right-of-way.~~ be placed on private property only and cannot be placed without the permission of the property owner.

(2) Political signs shall not:

(a) be placed in the public right-of-way or on public property;

(b) be attached on public right-of-way fences;

(d) be located within 500 feet of an intersection at grade along a primary highway, or within 500 feet of an interchange or rest area on the interstate highway system as measured from the beginning of the pavement widening for the interchange;

~~(b)~~(e) ~~Not~~ be erected or maintained prior to 90 days before the applicable election.

~~(c)~~(3) Political signs must be Be removed within 30 days following the applicable election. The department shall notify the landowner of illegal signs which are not removed within 30 days. The signs shall be removed by the department 24 hours after notification to the landowner. The department shall retain removed political signs for five working days after notification of removal before their destruction. The sign owner may retrieve the signs during this period.

~~(2)~~(4) Political signs do not require permits and are not subject to ~~the~~ permit fees ~~set forth in ARM 18.6.211~~.

AUTH: 75-15-121, MCA

IMP: 75-15-111, MCA

REASON: The proposed amendment is necessary to add additional requirements pertaining to political signs. Past abuses of political signs as well as confusion over allowed timing of political signs make this amendment necessary.

18.6.247 OFFICIAL SIGNS (1) Official signs must be erected outside the right-of-way and maintained by a public ~~officer~~ office or agency.

(2) Official signs must be erected within the territorial jurisdiction or zoning jurisdiction of the public ~~officer~~ office or agency. , ~~This means~~ such that the ~~officer~~ office or agency must exercise some form of governmental authority over the area upon which the sign is located.

(3) Official signs must be erected pursuant to direction or authorization contained in federal, state, or local law. , ~~This means~~ such that the ~~officer~~ office must be directed by statute ~~and/~~or must have the specific authority by statute to erect and maintain signs and notices.

(4) Local governments may erect, within the limits of their jurisdiction, official signs welcoming travelers and describing the services and attractions available, but ~~may not~~ official signs shall not contain any commercial advertising, nor advertise private business or brand names.

(5) Not more than one official sign welcoming visitors or providing information about a community is allowed on each highway entering the community, from each direction of travel, subject to federal and state outdoor advertising control ~~(OAC)~~ rules.

(6) and (7) remain the same.

(8) The maximum area of an official sign shall not exceed 150 square feet.

(9) Signs 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.

(10) Official signs visible from controlled routes must not be located within 500 feet of an intersection in rural areas, or within 140 feet of an intersection in cities or towns.

(11) Official signs visible from interstate highways must not be located within 500 feet of the gore of an interchange.

(12) Official signs must not be located within 500 feet of any of the following that are adjacent to the controlled route unless the signs are in an incorporated area:

(a) public parks;

(b) public forests;

(d) scenic areas designated as such by the department or other state agency having and exercising this authority.

(13) Official signs shall meet all general restrictions on characteristics for off-premise signs found in ARM 18.6.231.

(14) A permit must be obtained for each official sign accompanied by a nonrefundable inspection fee. There is no initial permit fee or renewal fee for official signs.

AUTH: 75-15-121, MCA

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

REASON: The proposed amendment is necessary to clarify some language in the rule for ease of readability. The proposed amendment will also insert language on the requirement of a permit for official signs to avoid confusion on whether or not permits are required for this type of sign.

18.6.248 RECOGNITION OF SPONSORS, BENEFACTORS, AND SUPPORT GROUPS (1) and (1)(a) remain the same.

(b) ~~the~~ a permanent "thank you" display is limited to a three recognition plaques ~~that does not exceed 2% of the total sign face or 1 foot x 36 inches, whichever is less;~~ whose size shall not exceed the size(s) applied for on the permit application and approved by the department;

(d) remains the same.

(e) the sign owner obtains a permit from ~~MDT~~ the department to display "thank you" recognition; and the permit application ~~must include~~ includes the type of display and purpose for the recognition.

(2) A nonprofit owner ~~means~~ includes, but is not limited to schools, churches, or local governments.

AUTH: 75-15-121, MCA

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

REASON: The proposed amendment is necessary to clarify the requirements for on-premise, nonprofit signs where permanent thank you and recognition plaques will be included on the sign. The current language restricting the size of the permanent recognition plaques may now vary, upon approval by the department. The proposed amendments will also clarify that thank you messages may be permanent on the plaques and changeable on the reader board itself within the restrictions listed in the rule.

18.6.251 REPAIR OF NONCONFORMING SIGNS (1) 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 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 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 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 may not be illuminated, unless already illuminated before the repair or maintenance;

(e) the sign to be repaired or replaced may not replace wood poles with steel poles.

(2) Nonconforming signs lawfully in existence after April 21, 1995, may be maintained or replaced each year under the following requirements:

(a) a sign 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 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 replacement may 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 may not be illuminated, unless already illuminated before the repair or maintenance;

(e) the sign to be repaired or replaced may not replace wood poles with steel poles.

(3) All changes to nonconforming signs must meet the standards of lawful ordinance, regulation, or resolution of local government and must be approved by the landowner.

(4) Nonconforming signs shall not be maintained or repaired from across the right-of-way control access fences or boundaries.

~~(1)~~(5) Nonconforming signs and signs in conforming areas which do not meet required size, lighting and spacing criteria, as classified by the department prior to April 21, 1995, may be repaired but only in conformity with the following limitations: may be repaired only if

~~(a)~~ such repair and maintenance as is reasonably necessary to maintain the sign's appearance and structural integrity. may be performed. The value of new materials used in the maintenance of a sign during one calendar year may not exceed 30% of the value of all of the materials which would be required to replace the sign new.

~~(b)~~(6) ~~Signs~~ Nonconforming signs which are ~~blown down, vandalized, or otherwise damaged may be re-erected provided:~~ destroyed, abandoned, or discontinued may not be re-erected except in instances of vandalism or other criminal or tortious acts.

~~(i) The sign is not damaged in excess of 50% of its replacement cost.~~

~~(ii)~~ The work must be accomplished within ~~six months~~ 60 days or the permit may be ~~canceled~~ revoked.

~~(c) In no case may the repair, maintenance, or re-erection of the nonconforming signs~~ (or signs in conforming areas which do not meet required size, lighting and spacing criteria) result in an increase in the area used to display advertising copy or an increase of height, width, or areas over the height, width or area of the sign when last permitted. In no case may the repair, maintenance or re-erection of a sign result in a substantial upgrading of the type or value of the sign. For example, a change from wood to steel structure or a change from unilluminated to illuminated would constitute a substantial upgrading.

(7) Nonconforming signs shall not be relocated from their original permitted location.

~~(d)~~(8) The department shall notify the sign owner of a violation of ~~(c)~~ this rule. The department may allow a permittee who has increased the dimensions or has lighted a previously unlighted nonconforming sign ~~a reasonable time~~ 60 days to restore the sign as originally permitted. If the dimensions are increased or the sign is lighted a second time, the permit will be ~~immediately canceled~~ revoked by the department.

~~(2) As further clarification, signs that meet the statutory requirements of 75-15-111(4), MCA:~~

~~(a) May be maintained each year if the value of the materials used in the maintenance does not exceed 75% of the value of the materials required to replace the sign new; and~~

~~(b) May be replaced, if damaged, at up to and including 100% of its replacement cost.~~

~~(c) May be illuminated.~~

~~(d) May replace wood poles with steel poles provided the size and number of poles remain the same or less.~~

~~(e) Changes must meet the standards of any lawful ordinance, regulation or resolution of local government.~~

~~(f) Any increased sign value resulting from maintenance, repair or illumination as provided in this rule will be deducted if the sign is purchased by the department.~~

~~(3) The limitations set forth in (1) and (2) above are not intended to apply to conforming signs; however, repair~~ or reconstruction of a sign which results in a change in the height, width or area of more than 10% from that shown on the last approved permit application, or which changes the number or position of the facings, will require revision of the existing permit and will be charged the appropriate additional fees. Failure to obtain a revised permit prior to performing the upgrade may result in cancellation of the permit.

(9) A nonconforming sign which has displayed obsolete or damaged advertising matter, or has not displayed advertising matter for a period of 45 days subsequent to receipt of written notice from the department, shall be considered as a discontinued sign and shall be removed by the owner without compensation.

(10) Nonconforming signs which are in need of substantial repair either to the face or support structure, and are not repaired within a period of 45 days after receipt of written notice from the department, shall be considered an abandoned sign and shall be required to be removed by the owner without compensation.

(11) Any increase in nonconforming sign value resulting from maintenance, repair, or illumination as provided in this rule will be deducted if the sign is purchased by the department.

AUTH: 75-15-121, MCA

IMP: 75-15-111, 75-15-121, MCA

REASON: The proposed amendment is necessary to reorganize the rule on repair of nonconforming signs to make the language conform to statutory language on allowable percentages of repair and replacement damage. The proposed amendments will also reorganize the rule information to make it easier to read and find necessary information for the public. The proposed amendments will bring Montana rules into compliance with federal regulations.

18.6.262 SIGN STRUCTURES THAT ARE BLANK, ABANDONED, DILAPIDATED, DISCONTINUED, OR IN DISREPAIR (1) Sign structures that have no face or have faces without 100% advertising copy shall be considered blank. Blank is defined as all faces not leased, rented or otherwise occupied by an advertising or public service message. The sign owner is not prohibited from noticing the sign for rent or lease, however, for the purposes of this rule, the sign shall be considered blank while being noticed for rent or lease.

~~(2) Sign structures are considered abandoned if the sign structure:~~

~~(a) has not been erected;~~

~~(b) has been removed; and~~

~~(c) the sign owner fails to pay the appropriate sign fees.~~

~~(3) The department may determine a sign is in disrepair if the structure is unsafe or if the sign face is unreadable or not visible to the traveling public.~~

~~(4)~~(1) When the department determines a sign structure has been blank, abandoned, dilapidated, discontinued, or in disrepair for a period of ~~six continuous months~~ 60 days, the department shall notify the sign owner of the violation and require remedial action within 45 days. If such action is not taken, the permit will be ~~canceled~~ revoked and action for the removal of the sign will be taken as provided in 75-15-131, MCA.

(2) A sign is in disrepair if the structure is unsafe or if the sign face is unreadable or not visible to the traveling public.

AUTH: 75-15-121, MCA

IMP: 75-15-111, 75-15-113, 75-15-121, 75-15-131, MCA

REASON: The proposed amendment is necessary to move definitional language from this rule to its proper location in ARM 18.6.202 on definitions. Also, language on "dilapidated" and "discontinued" signs is being added to clarify that those sign conditions are also covered under this rule. The existing rule language on the department's requirements for blank, abandoned, dilapidated, or discontinued signs will remain the same.

18.6.263 VIOLATION OF PROPERTY RIGHTS (1) A permit for any sign which is erected or maintained in violation of the access control fence or line or in violation of any other restrictive easement or property right belonging to the state of Montana or any other subdivision thereof may be ~~summarily canceled~~ revoked by the department.

AUTH: 75-15-121, MCA

IMP: 75-15-121, 75-15-131, MCA

REASON: The proposed amendment is necessary to update rule language on the department's process in terminating a permit.

18.6.264 DETERMINATION OF ILLEGAL OUTDOOR ADVERTISING--NOTICES--CORRECTIVE ACTION--ILLEGAL OUTDOOR ADVERTISING REMOVAL (1) The department may determine outdoor advertising is unlawful or illegal under 75-15-112, MCA, and also when a sign or sign structure is unsafe, insecure, a danger to the public, or has been constructed or is being maintained in violation of the provisions of the Outdoor Advertising Act or this chapter.

(2) If the department determines a permitted or unpermitted sign is in violation of statute or rule, it shall give written notice to the owner or occupant of the land on which the sign is located, and to the owner of the sign, if known. If the sign owner is not known, or has failed to respond to department notices, the department may post notice of the statute or rule violation determination in a conspicuous place on the structure.

(3) The notice shall state the following:

(a) the location and description of the sign, sufficient for identification of the sign;

(b) a statement the department has found the sign to be in violation of statutes or rules on outdoor advertising, along with a general description of the conditions which cause the sign to be in violation;

(d) a requirement the corrective action shall be completed within 45 days from the date the notice was posted or received;

(e) notice the sign owner may request a hearing within 45 days to dispute the department's determination of statute or rule violation;

(f) notice the department will issue a default, revoke the permit (on permitted signs), and promptly remove the unlawful sign after 45 days if the corrective action is not completed (if appropriate), or a hearing requested.

(4) The department shall undertake permit revocation action under the Montana Administrative Procedure Act for permitted signs on which unlawful conditions cannot be remedied by corrective action, and shall issue a notice in compliance with (3).

(5) If the condition of a nonpermitted sign cannot be remedied so as to come into compliance with the Outdoor Advertising Act and this chapter, the department shall issue a notice in compliance with (3), and promptly remove the unlawful sign after 45 days if a hearing is not requested.

(1) and (2) remain the same but are renumbered (6) and (7).

AUTH: 75-15-121, MCA

IMP: 75-15-131, 75-15-132, MCA

REASON: The proposed new rule is necessary to clarify the department's remedies when an illegal sign or sign in violation of outdoor advertising statutes or rules is identified. The department has authority under 75-15-131, MCA, to identify and remove illegal signs, thus a process to accomplish the action is necessary in the administrative rules. This process will allow sign owners to dispute the department's determination of unlawful advertising or correct the deficiencies, if possible, before removal of the sign is commenced.

5. The department proposes to repeal the following rule:

18.6.242 RANCH AND RURAL DIRECTIONAL SIGNS found at ARM page 18-147.

AUTH: 75-15-121, MCA

IMP: 75-15-111, 75-15-121, MCA

REASON: The rule is proposed for repeal because it has been combined with ARM 18.6.243 so that only one rule exists on directional signs.

6. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Patrick Hurley, Department of Transportation, P.O. Box 201001, Helena, MT 59620; telephone (406) 444-6068; fax (406) 444-7254; TTY (800) 335-7592; or e-mail [email protected], and must be received no later than 5:00 p.m., September 26, 2008.

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 Patrick Hurley at the above address no later than 5:00 p.m., September 26, 2008.

8. If the agency receives requests for a public hearing on the proposed actions from either 10% or 25, whichever is less, of the persons directly affected by the proposed actions; 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 196 persons based on the 1958 number of permit holders in the state.

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 Lyle Manley, Legal Services, Department of Transportation, P.O. Box 201001, Helena, MT 59620-1001; or may be made by completing a request form at any rules hearing held by the department.

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 notice requirements of 2-4-302, MCA, do not apply.

/s/ Lyle Manley /s/ Nancy Espy

Lyle Manley Nancy Espy, Chair

Rule Reviewer Transportation Commission

Department of Transportation

Certified to the Secretary of State August 18, 2008.