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| Montana Administrative Register Notice 18-130 | No. 22 11/25/2011 | |
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BEFORE THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On December 26, 2011, the Department of Transportation proposes to adopt and amend the above-stated rules. 2. The Department of Transportation will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Transportation no later than 5:00 p.m. on December 16, 2011, to advise us of the nature of the accommodation that you need. Please contact Patrick Hurley, Department of Transportation, 2701 Prospect Avenue, Helena, Montana, 59601; telephone (406) 444-6068; fax (406) 444-7254; TYY/Telecommunications Device for the Deaf 800-335-7592 or (406) 444-7696; or e-mail [email protected]. 3. The rule as proposed to be adopted provides as follows: NEW RULE I UNZONED INDUSTRIAL ACTIVITY (1) The following criteria shall be used to determine whether an activity qualifies an area to be considered unzoned industrial: (a) the industrial permanent buildings, improvements, or industrial activities area used to qualify an area must be located within 660 feet of the right-of-way of an interstate or primary highway; (b) an industrial business may not be located inside a structure which is used for a residence, or in a building intended for use by the resident such as a garage or other outbuilding. If a residence exists on the location, the location shall not qualify for use as an industrial activities area; (c) any business conducting industrial activities shall have been in business at least one year prior to being considered as qualifying the area as an unzoned industrial area; (d) signs, displays, or other devices identifying any industrial business may be considered in the determination of visibility; (e) seasonal (but not temporary or transient) industrial activities may be considered as a qualifying activity at the discretion of the department; (f) an industrial activities area may include readily identifiable areas for which the primary uses are the manufacturing, servicing, or storage of goods; (g) an industrial activity shall hold a current, valid business license issued by a local, county, or state government which authorizes the industrial activity to operate from that location; (h) any industrial building shall have a permanent foundation, built or modified for its current industrial use. Where a trailer, mobile home, manufactured home, or similar structure is used as an industrial business office, all wheels, axles, and springs shall be removed. The mobile structure shall be permanently secured on piers, pad, or foundation; (i) a self-propelled vehicle shall not qualify for use as an industrial business or office for the purpose of these rules. (2) A maximum of two signs shall be permitted from a qualifying industrial activity. The sign(s) shall be located on the same side of the controlled highway as the qualifying activity, unless the property is separated from the controlled highway by a frontage, access, or other type of road parallel to the controlled highway. 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 industrial areas are not created when: (a) an industrial activity is located either partially or totally within an area which has been zoned by a bona fide state, county, or local zoning authority; (b) an industrial activity is engaged in or established primarily for the purpose of qualifying an area for the displaying of outdoor advertising; or (c) spot-zoning or strip-zoning of an area for the display of outdoor advertising has occurred. (4) If the qualifying industrial activity 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 industrial activity again becomes operational at the sign location, the sign will revert to its former conforming status for the duration of the industrial activity and nine months thereafter. (5) The department shall be the sole determinant as to whether an area qualifies as an unzoned industrial activity. AUTH: 75-15-121, MCA IMP: 75-15-103, 75-15-111, 75-15-113, MCA REASON: The proposed amendment is necessary to separate "commercial" and "industrial" activities criteria, as the current combined rule created confusion for potential outdoor advertising permit applicants. The criteria for "industrial" activities will now be found in New Rule I, while the criteria for "commercial activities" will continue to be found in ARM 18.6.203 with the proposed amendments for clarification. 4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined: 18.6.202 DEFINITIONS (1) remains the same. (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. (3) "Agricultural Activity" means any activity on improved or unimproved land directly related to the production of crops, dairy products, poultry, or livestock; any activity directly related to the cultivation or harvesting of trees; or any activity directly related to fish farms. (3) through (6) remain the same but are renumbered (4) through (7).
(8) "Commercial activity" is defined at 75-15-103, MCA, and has the additional meaning of income-producing property such as, but not limited to, office buildings, retail buildings, hotels, banks, restaurants, service outlets, and owner-occupied properties being put to income-producing uses. The term does not include any activity that has been in business less than one year, or any property on which the only commercial activity is the erection or maintenance of an outdoor advertising structure. (8) through (19) remain the same but are renumbered (9) through (20). (21) "Height above ground level (HAGL)" means the distance in feet from the ground level to the lowest edge of the bottom molding of the sign display face (panel). (20) and (21) remain the same but are renumbered (22) and (23). (24) "Industrial Activity" is defined at 75-15-103, MCA, and has the additional meaning of land or improvements that an industrial business is currently using or can be adopted by the business for future industrial use; a combination of land, improvements, and machinery integrated into a functioning unit to assemble, process, and manufacture products from raw materials or fabricated parts; factories that render service, including but not limited to laundries, dry cleaners, storage warehouses, refineries; or areas on which an industrial business produces natural resources. The term does not include any activity that has been in business less than one year, or any property on which the only industrial activity is the erection or maintenance of an outdoor advertising structure. (22) through (25) remain the same but are renumbered (25) through (28). (29) "Multi-face sign" means a sign having more than one face (e.g., doubles, v-type, back-to-back, side-by-side and stacked). (26) through (33) remain the same but are renumbered (30) through (37). (38) "Political sign" means a sign which announces, promotes, or advertises the name, program, or political party of any candidate for public office, or an opinion regarding a political issue associated with a candidate or election. (34) through (38) remain the same but are renumbered (39) through (43). (44) "Temporary sign" means a sign intended to be displayed for a limited period of time only in conformity with ARM 18.6.240. (39) through (41) remain the same but are renumbered (45) through (47). 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 of "agricultural activity," "commercial activity," "height above ground level," "industrial activity," "multi-face sign," "political sign," and "temporary sign," as these definitions are used elsewhere in the Outdoor Advertising Control rules, and the terms must be defined for their use. The proposed amendments will also delete the definition of "commercial and industrial activities," as these definitions have been split into two separate definitions for consistency with further proposed rule amendments which will split the rules using these terms. The proposed amendments will also add clarification language to the definition of "advertising device." 18.6.203 UNZONED COMMERCIAL (a) the commercial (b) a commercial (c) commercial (d) and (e) remain the same. (f) signs, displays, or other devices identifying the commercial (g) seasonal (but not temporary or transient) commercial (i) and (j) remain the same but are renumbered (h) and (i). (2) remains the same. (3) Unzoned commercial (a) (b) a commercial (c) and (d) remain the same. (4) If the qualifying commercial AUTH: 75-15-121, MCA IMP: 75-15-103, 75-15-111, 75-15-113, MCA REASON: The proposed amendment is necessary to separate "commercial" and "industrial" activities criteria, as the current combined rule created confusion for potential outdoor advertising permit applicants. The criteria for "industrial" activities will now be found in New Rule I, while the criteria for "commercial activities" will continue to be found in ARM 18.6.203, with the proposed amendments for clarification. 18.6.204 ON-PREMISE SIGNS - QUALIFYING LOCATIONS (1) remains the same. (2) The sign must be located on the same premises as the activity or property advertised (a) through (6)(c) remain the same. (e) and (f) remain the same but are renumbered (d) and (e). AUTH: 75-15-121, MCA IMP: 75-15-111, MCA REASON: The proposed amendment to (2) is necessary to delete language which is not sufficiently clear to provide guidance for persons seeking to erect on-premise signs, as to how the property boundary is used in evaluating the site. The proposed amendment to (6)(d) is necessary because any business located on the sign owner's property which meets all requirements for an on-premise sign will qualify under the statutes and rules, and distances should not be used as a measurement for compliance. 18.6.205 OFF-PREMISE SIGNS - LOCATIONS - COMPLIANCE WITH STATUTES, RULES, ORDINANCES (1) and (2) remain the same. (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 and [New Rule I]. (5) through (8) remain the same but are renumbered (4) through (7). AUTH: 75-15-121, MCA IMP: 75-15-111, MCA REASON: The proposed amendment is necessary to delete (4) because the subsection contains criteria which are not appropriate for location of off-premise signs. Potential sign applicants may be confused by the current language on "future land use map" and "land development regulations," when the subsection does not specifically refer to local city or county zoning regulations. Section 75-15-111, MCA, specifically allows outdoor advertising signs only in areas zoned industrial or commercial by the local zoning authority, or in areas not zoned, but containing qualifying commercial or industrial activities. The subsection proposed for deletion therefore did not meet the statute's criteria for allowable locations for outdoor advertising signs. 18.6.211 PERMITS (1) through (8) remain the same. (9) Ownership of a sign permit may not be transferred without the express written consent of the permit holder(s) on a form provided by the department. The current permit holder(s) must sign the form transferring the permit. Only off-premise commercial advertising sign permits may be transferred. Temporary, church and service club, directional, cultural, noncommercial, political, and official signs shall not be transferred, but may be terminated by permit holder request or department action. (10) and (11) remain the same. AUTH: 75-15-121, IMP: 75-15-122, MCA REASON: The proposed amendment is necessary to allow outdoor advertising permit transfers within the off-premise commercial sign category only. This amendment is necessary because other categories of signs, such as church signs, service club signs, cultural signs, etc., are specific to one owner, organization, or attraction only and will not therefore contain correct information for any subsequent permit holder. Additionally, none of the listed sign categories are charged permit renewal fees, so a transfer from one of these categories to a commercial off-premise category would not be appropriate, as the commercial advertising signs are charged permit renewal fees. Any new owner or entity seeking an outdoor advertising permit in these categories must apply for a new outdoor advertising permit and submit to a site inspection for compliance with all outdoor advertising statutes and rules. The proposed amendment will also delete an incorrect reference to an authorizing statute which does not refer to the department's rulemaking authority. 18.6.213 PERMIT ATTACHMENT (1) remains the same. (2) The permit plate must be attached immediately upon erection of the sign. (2) through (5) remain the same, but are renumbered (3) through (6). AUTH: 75-15-121, MCA IMP: 75-15-122, MCA REASON: The proposed amendment is necessary to add language on the necessity for immediate attachment of the permit plate upon erection of the sign. The rule does not currently contain any time limitation on permit plate attachment, thus the department is clarifying the immediate need for attachment. 18.6.215 FEES (1) through (2)(b)(iii) remain the same. (iv) multiple face signs (aggregate of faces totals under 672 sq. ft.) $ (v) multiple face signs (aggregate of faces totals over 673 sq. ft.) $ 150.00 (c) through (iii) remain the same. (iv) multiple face signs (aggregate of faces totals under 672 sq. ft.) $ (v) multiple face signs (aggregate of faces totals over 673 sq. ft.) $ 225.00 (d) remains the same. AUTH: 75-15-121, MCA IMP: 75-15-122, MCA REASON: The proposed amendments are necessary because the existing fee schedule does not recognize the multi-face signs have different total square footage than non-multi-face signs. Some owners of multi-face signs may therefore be overcharged permit renewal fees for signs which should be considered as one sign structure only under the definition of multi-face signs. The amendments will clarify that smaller multi-face signs shall be charged a lower rate than larger multi-face signs. The amendment will result in an estimated cumulative permit renewal fee decrease of $ 17,400.00, and will affect an estimated 348 outdoor advertising multi-face sign permit holders in Montana. 18.6.221 NEW SIGN ERECTION - CONSTRUCTION STANDARDS (1) Within (a) through (4) remain the same.
AUTH: 75-15-121, MCA IMP: 75-15-113, 75-15-122, MCA REASON: The proposed amendment will decrease sign erection dates from six months to 90 days, to better reflect MDT's time frame for new sign erection. The proposed amendment will also delete the requirement that sign structures be able to withstand wind loads of 80 miles per hour. The department is not able to evaluate or measure construction standards to ensure this requirement is met. The requirement is therefore not enforceable by the department and should be deleted. 18.6.231 OFF-PREMISE SIGN STANDARDS (1) through (2)(c) remain the same. (d) signs, whether or not visible to the main traveled way of a controlled route, must not be located within 500 feet of any of an intersection, intersecting roadway, junction, property driveway, or connecting roadways with approaching or merging traffic in rural areas, or within 140 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadways with approaching or merging traffic in cities or towns; (e) through (g) remain the same. (h) multi-faced (i) through (3)(b) remain the same. (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 (d) signs within 500 feet of any intersection, intersecting roadway, junction, property driveways, approaching or merging traffic must be erected with the height above ground level (HAGL) of not less than 8 feet. (4) through (4)(e) remain the same. (f) signs that include directions or directional elements (e.g., an arrow indicating a turn) in locations which are so close to a turning point there is insufficient time to signal and turn safely; (g) through (o) remain the same but are renumbered (h) through (p). AUTH: 75-15-121, MCA IMP: 75-15-113, 75-15-121, MCA REASON: The proposed amendment to (2)(d) is necessary to insert additional wording on types of intersecting roads or driveways which prohibit sign placement in close proximity to intersections for safety reasons. The same prohibition exists on all other types of outdoor advertising signs so that drivers may have unobstructed views at all intersections to allow for safe driving. The proposed amendment to (2)(h) is necessary to clarify the language on multi-face signs, for which a definition is now proposed in ARM 18.6.202, and to eliminate redundancy in repeating the information that a multi-face sign is considered a single sign. The proposed amendment to (3)(d) will add a requirement regarding height above ground level to clarify this requirement for permit applicants. The proposed amendment to new (3)(f) is necessary to add an additional prohibition on off-premise sign standards for safety reasons. The proposed amendment will prohibit signs containing directional elements which may distract drivers at critical decision points and thereby cause unsafe driving. The proposed amendment to (4)(g) will add language on intersecting junctions and property driveways which must also retain an unobstructed view for drivers in addition to the intersections and signals already listed, for safety reasons. 18.6.240 TEMPORARY SIGNS (1) through (1)(f) remain the same. (g) be erected or maintained outside the time limits set forth in this rule for each category of temporary signs (h) be erected within 500 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadways with approaching or merging traffic in rural areas, or within 140 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadways with approaching or merging traffic in cities or towns; (i) be erected on interstate highways. (2) through (3)(c) remain the same. AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-121, MCA REASON: The proposed amendments are necessary to prohibit temporary signs within 500 feet of an intersection in rural areas or 140 feet of an intersection in cities or towns for safety reasons. The same prohibition exists on all other types of outdoor advertising signs so that drivers may have unobstructed views at all intersections to allow for safe driving. 18.6.241 CHURCH AND SERVICE CLUB SIGNS (1) through (1)(d) remain the same. (e) Signs visible from controlled routes must not be located within 500 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadways with approaching or merging traffic in rural areas, or within 140 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadways with approaching or merging traffic in cities or towns; (f) through (2) remain the same. AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-113, 75-15-121, MCA REASON: The proposed amendment is necessary to insert additional wording on types of intersecting roads or driveways which prohibit sign placement in close proximity to intersections for safety reasons. The same prohibition exists on all other types of outdoor advertising signs so that drivers may have unobstructed views at all intersections to allow for safe driving. 18.6.244 CULTURAL SIGNS (1) through (3)(a) remain the same. (b) cultural signs visible from controlled routes must not be located within 500 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadways with approaching or merging traffic in rural areas, or within 140 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadways with approaching or merging traffic in cities or towns; (c) through (7) remain the same. AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-113, MCA REASON: The proposed amendment is necessary to insert additional wording on types of intersecting roads or driveways which prohibit sign placement in close proximity to intersections for safety reasons. The same prohibition exists on all other types of outdoor advertising signs so that drivers may have unobstructed views at all intersections to allow for safe driving. 18.6.245 NONCOMMERCIAL SIGNS (1) through (5)(d) remain the same. (e) be located within 500 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadway with approaching or merging traffic in rural areas, or within 140 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadway with approaching or merging traffic in cities or towns; (f) through (9) remain the same. AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-113, MCA REASON: The proposed amendment is necessary to insert additional wording on types of intersecting roads or driveways which prohibit sign placement in close proximity to intersections for safety reasons. The same prohibition exists on all other types of outdoor advertising signs so that drivers may have unobstructed views at all intersections to allow for safe driving. 18.6.246 POLITICAL SIGNS (1) remains the same. (2) Political signs shall not: (a) be placed on or allow any portion to intrude in the public right-of-way or on public property; (b) and (c) remain the same. (d) be (e) 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) prevent the driver of a vehicle from having a clear and unobstructed view of at-grade intersections, approaches, official traffic control signs, other traffic control devices, or merging traffic; (g) be placed within 100 feet of any entrance to the building in which a polling place is located; (h) 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. (3) Political signs must be removed within (4) Signs that pose a traffic hazard may be removed by the department without prior notification to the sign owner. (5) It is the responsibility of the candidate or political committee to ensure all signs are in compliance with this rule. (4) remains the same but is renumbered (6). AUTH: 75-15-121, MCA IMP: 75-15-111, MCA REASON: The proposed amendments are necessary to impose additional restrictions on placement of political signs in proximity to intersections, placement outside polling places, and safe lighting. These requirements make political sign restrictions consistent with other outdoor advertising signs for safety reasons. The proposed amendments will also add language on removal of signs which pose a traffic hazard, and on candidate and political committee responsibility for rule compliance. Finally, the amendments will delete the language restricting political signs to 90 days prior to an election in keeping with court decisions from around the country on limitations on free speech rights. 18.6.247 OFFICIAL SIGNS (1) through (9) remain the same. (10) Official signs visible from controlled routes must not be located within 500 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadway with approaching or merging traffic in rural areas, or within 140 feet of an intersection, intersecting roadway, junction, property driveway, or connecting roadway with approaching or merging traffic in cities or towns. (11) through (14) remain the same. AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-113, MCA REASON: The proposed amendment is necessary to insert additional wording on types of intersecting roads or driveways which prohibit sign placement in close proximity to intersections for safety reasons. The same prohibition exists on all other types of outdoor advertising signs so that drivers may have unobstructed views at all intersections to allow for safe driving. 18.6.251 REPAIR OF NONCONFORMING SIGNS (1) through (5) remain the same. (6) Nonconforming signs which are destroyed, abandoned, or discontinued may not be re-erected except in instances of vandalism or other criminal or tortious acts. The work must be accomplished within (7) remains the same. (8) The department shall notify a sign owner of a violation of this rule. The department may allow a permittee who has increased the dimensions or has lighted a previously unlighted nonconforming sign (9) and (10) remain the same. AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-121, MCA REASON: The proposed amendments are necessary to add language on grant of an extension of time if circumstances warrant. The proposed amendments will also make language on 90-day time periods consistent throughout the rule. 18.6.262 SIGN STRUCTURES THAT ARE BLANK, ABANDONED, DILAPIDATED, DISCONTINUED, OR IN DISREPAIR (1) When the department determines a sign structure has been blank, abandoned, dilapidated, discontinued, or in disrepair (2) remains the same. AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-113, 75-15-121, 75-15-131, MCA REASON: The proposed amendments are necessary to add language on grant of an extension of time if circumstances warrant. The proposed amendments will also make language on 90-day time periods consistent throughout the rule. 5. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Patrick Hurley, Department of Transportation, 2701 Prospect Avenue, Helena, Montana, 59601; telephone (406) 444-6068; fax (406) 444-7254; or e-mail [email protected], and must be received no later than 5:00 p.m., December 23, 2011. 6. 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., December 23, 2011. 7. If the agency receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 191 persons based on 1907 permit holders. 8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department. 9. 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. 10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply. /s/ Carol Grell Morris /s/ Timothy W. Reardon Carol Grell Morris Timothy W. Reardon Rule Reviewer Director Transportation Certified to the Secretary of State November 14, 2011.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact [email protected].
