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| Montana Administrative Register Notice 18-120 | No. 22 11/26/2008 | |
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BEFORE THE TRANSPORTATION COMMISSION DEPARTMENT OF TRANSPORTATION OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On August 28, 2008, the Transportation Commission published MAR Notice No. 18-120 pertaining to the proposed adoption, amendment, and repeal of the above-stated rules at page 1747 of the 2008 Montana Administrative Register, Issue Number 16. 2. The Transportation Commission has adopted and amended the following rules as proposed: ARM New Rules I (18.6.204), III (18.6.215), and IV (18.6.239), 18.6.213, 18.6.214, 18.6.241, 18.6.243, 18.6.244, 18.6.245, 18.6.246, 18.6.247, 18.6.248, 18.6.263, and 18.6.264. 3. The Transportation Commission has repealed the following rule as proposed: ARM 18.6.242. 4. The Transportation Commission has adopted and amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined: NEW RULE II (18.6.205) OFF-PREMISE SIGNS - LOCATIONS - COMPLIANCE WITH STATUTES, RULES, ORDINANCES (1) through (4) remain as proposed. (a) the proposed sign location shall exhibit (b) through (8) remain as proposed. AUTH: 75-15-121, MCA IMP: 75-15-111, MCA NEW RULE V (18.6.252) (a) through (g) remain as proposed. (2) Any application for relocation (3) and (4) remain as proposed. AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-121, MCA NEW RULE VI (18.6.240) TEMPORARY SIGNS (1) remains as proposed. (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, and where appropriate, the real estate agent listed on the sign, 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 and agent. (3) and (3)(a) remain as proposed. (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 (c) remains as proposed. AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-121, MCA 18.6.202 DEFINITIONS (1) and (1)(a) remain as proposed. (b) the sign has been without a message for a period of at least (c) through (4) remain as proposed. (5) "Blank sign" means a sign structure that has no face or has faces without 100 percent advertising (6) through (12) remain as proposed. (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 (14) "Dilapidated sign" means a sign which is (15) through (31) remain as proposed. (32) "Panel" means a portion of a billboard face (33) through (41) remain as proposed. AUTH: 75-15-121, MCA IMP: 75-15-103, 75-15-111, 75-15-112, 75-15-113, 75-15-121, MCA 18.6.203 UNZONED COMMERCIAL OR INDUSTRIAL ACTIVITY (1) through (1)(i) remain as proposed. (j) a commercial activity shall include two or more 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) through (3)(b) remain as proposed. (d) and (e) remain as proposed but are renumbered (c) and (d). (4) remains as proposed. AUTH: 75-15-121, MCA IMP: 75-15-103, 75-15-111, 75-15-113, MCA 18.6.211 PERMITS (1) remains as proposed. (2) A check payable to the Montana Department of Transportation in the amount of the nonrefundable inspection fee and the (3) through (11) remain as proposed. AUTH: 75-15-121, 75-15-122, MCA IMP: 75-15-122, MCA 18.6.212 PERMIT APPLICATIONS - NEW SIGN SITES (1) through (4)(h) remain as proposed. (5) Applications for permits must be accompanied by the following: (a) both the nonrefundable inspection fee and the (b) through (7) remain as proposed. AUTH: 75-15-121, MCA IMP: 75-15-122, MCA 18.6.221 NEW SIGN ERECTION - CONSTRUCTION STANDARDS (1) Within (a) through (e) remain as proposed. (2) 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. (3) through (5) remain as proposed. AUTH: 75-15-121, MCA IMP: 75-15-113, 75-15-122, MCA 18.6.231 OFF-PREMISE SIGN STANDARDS (1) through (3) remain as proposed. (4) Off-premise permitted signs on controlled routes which have any of the following characteristics shall not be erected (a) through (k) remain as proposed. (l) signs located within ten feet of a property line of a residential zoning district or an existing residential use (m) through (o) remain as proposed. AUTH: 75-15-121, MCA IMP: 75-15-113, 75-15-121, MCA 18.6.251 REPAIR OF NONCONFORMING SIGNS (1) through (4) remain as proposed. (5) Nonconforming signs may be repaired only if such repair and maintenance is reasonably necessary to maintain the sign's appearance and structural integrity. 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. (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) and (8) remain as proposed. (9) A nonconforming sign which has displayed obsolete or damaged advertising matter, or has not displayed advertising matter for a period of (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 AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-121, MCA 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 for a period of 60 days, the department shall notify the sign owner of the violation and require remedial action within (2) A sign is in disrepair if the structure is unsafe or if the sign face is AUTH: 75-15-121, MCA IMP: 75-15-111, 75-15-113, 75-15-121, 75-15-131, MCA 5. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows: COMMENT NO. 1 Two comments were received asking whether the proposed outdoor advertising rule changes would affect existing on-premise signs along a controlled route. RESPONSE The commission appreciates these inquiries in response to the proposed rules, and notes existing on-premise signs will not be affected by these rule changes. The commission further notes each person who had a question on a specific sign has already been contacted by Outdoor Advertising Control (OAC) staff to respond to the questions on the specific signs and locations. COMMENT NO. 2 One comment was received stating New Rule VI(1)(f) on Temporary Signs and ARM 18.6.246(1)(d) on Political Signs should not prohibit the placement of temporary or political signs within 500 feet of an intersection or interchange. The comment stated this requirement would force all temporary signs away from intersections to areas which are inaccessible and possibly invisible to the traveling public, making the signs confusing and ineffective. RESPONSE The commission notes the requirement for a 500 foot distance from an intersection or interchange is found in statute at 75-15-113, MCA, on Standards for Permitted Advertising. The statutory requirement is based on safety issues and critical points along a road where drivers must make decisions without distractions. This requirement therefore affects all types of outdoor advertising signs in Montana, and it is not possible to make an exception for certain types of signs such as temporary or political signs. COMMENT NO. 3 One comment was received stating ARM 18.6.231(4)(g) and (m) on Off-premise Sign Standards should not restrict intermittent lights or "wind operated devices." The comment stated wind powered lights might be the wave of the future and limits on billboard intermittent lighting is of the same mentality as outlawing computers in schools back in the 1970s. RESPONSE The commission notes these prohibitions have always been in place in Outdoor Advertising administrative rules as the restrictions are based on the wording of the State-Federal Agreement signed with the federal Secretary of Transportation when the original federal Highway Beautification Act was passed by Congress, and the wording of 75-15-113(10), MCA. The restrictions have been moved to ARM 18.6.231 as part of these rule amendments to better organize the rules and place all off-premise sign standards in one place. COMMENT NO. 4 One comment was received stating New Rule II(4)(a) on Off-premise Sign Locations should not require a minimum of three qualifying businesses in proximity to a proposed sign location, as only one business is necessary to qualify a legal location under current Montana statutes. RESPONSE The commission agrees with the comment and notes the comment is correct in that 75-15-103(14), MCA, states an "unzoned commercial or industrial area" means an area occupied by one or more commercial or industrial activities. The rule will be amended to change the three business requirement to one business, as shown above. COMMENT NO. 5 Two comments were received stating ARM 18.6.221(1) and (2) on New Sign Erection should not require a new sign to be erected within three months of the date of the permit issuance as it is almost impossible to order and build a structure from start to finish within three months. The comments noted it usually takes over two months just to receive the materials once they have been ordered. The comments suggest the time period remain at six months, and the nonavailability of materials continue to qualify for a time extension. RESPONSE The commission agrees with the comment and will amend the rule as shown above to retain the time period for erection of a new sign at six months. COMMENT NO. 6 One comment was received stating New Rule VI(2) on Temporary Signs should state that in the case of real estate temporary signs, MDT will notify both the landowner and the real estate agent who owns and is listed on the temporary sign when the signs have not been removed within ten days of the expiration of the time limit. RESPONSE The commission agrees with the comment and will amend the rule as shown above to allow notification of both the landowner and real estate agent. COMMENT NO. 7 One comment was received stating New Rule VI(3)(b) on Temporary Signs should not use the term "realtor," as that is a trademarked term and denotes a real estate salesperson or a broker who is a member of the National Association of Realtors, which does not include all real estate brokers or salespersons. The comment requested the term be changed to "real estate agent." RESPONSE The commission agrees with the comment and will amend the rule as shown above to use the term "real estate agent." COMMENT NO. 8 One comment was received stating New Rule V on Repair, Reconstruction, or Relocation of Conforming Signs should not include new permit requirements or fees for ordinary repairs or reconstruction, but only upgrades or relocations. The comment noted 75-15-111, MCA, addresses restrictions on repair of nonconforming signs only, but places no restrictions on repair of conforming signs. RESPONSE The commission agrees with the comment, and will amend the rule as shown above to require a new permit application only for upgrade or relocation of a conforming sign. The permit upgrade will continue to be required for substantial changes on conforming signs in location, height, width, area, illumination, and other factors listed in the rule. COMMENT NO. 9 One comment was received stating ARM 18.6.202(1)(b) on definition of "abandoned sign" should change the period of time without a message to six months, instead of three months because three months is not enough time to replace all copy on all signs. RESPONSE The commission agrees with the comment and will amend the rule as shown above to change "three months" to "six months." COMMENT NO. 10 One comment was received stating ARM 18.6.202(5) on definition of "blank sign" should say a face without 100% "cover" instead of "copy" and delete the sentence on inclusion of all sign faces not leased or rented. The comment stated "copy" refers to the actual words of the message, but does not include background and other parts of the total sign face which "cover" the face. Also, the term should not refer to sign faces not leased or rented. RESPONSE The commission agrees with the comment and will amend the rule as shown above to change "copy" to "cover" and delete the sentence on signs not leased or rented. COMMENT NO. 11 One comment was received stating ARM 18.6.202(13) on definition of "destroyed signs" should state damage in excess of "60%" instead of "50%" to allow more signs to be salvaged after a sign has been damaged by weather or other factors. RESPONSE The commission agrees with the comment and will amend the rule as shown above to change "50%" destroyed to "60%" destroyed. COMMENT NO. 12 One comment was received stating ARM 18.6.202(14) on definition of "dilapidated sign" should not use the word "shabby," as the word is too vague and open to interpretation. The definition should also delete the phrase that the term includes signs blocked by overgrown vegetation, as this is not consistent with a dilapidated sign. RESPONSE The commission agrees with the comment and will amend the rule as shown above to delete the word "shabby" and the phrase regarding overgrown vegetation. COMMENT NO. 13 One comment was received stating ARM 18.6.202(32) on definition of "panel" should state that panel means a "portion of" a billboard, and should delete the phrase on single sign structure, as the definition would then more closely meet industry meaning and use of the term. RESPONSE The commission agrees with the comment and will amend the rule as shown above to state a panel is a portion of a billboard, and to delete the phrase on single sign structure. COMMENT NO. 14 One comment was received stating ARM 18.6.203(1)(j) on unzoned commercial or industrial activity customary facilities should insert the phrase "two or more" of the customary facilities, as many commercial activities in Montana do not have all of the facilities listed such as restrooms, and running water, but the businesses should have at least two of the facilities listed to qualify the location for a sign site under this rule. RESPONSE The commission agrees with the comment and will amend the rule as shown above to insert the phrase "two or more" of the customary facilities listed. COMMENT NO. 15 One comment was received stating ARM 18.6.203(3)(c) stating unzoned commercial or industrial areas are not created when an activity is incidental to or different from primary land uses in the immediately adjacent surrounding area because this requirement is not found in the federal statutes or rule, nor in Montana statutes or rules, and will create a requirement not supported by statute. RESPONSE The commission agrees with the comment and will amend the rule as shown above to delete the subsection on activity incidental to or different from primary land uses in the immediate adjacent surrounding area. COMMENT NO. 16 One comment was received stating ARM 18.6.212(5)(a) on Permit Applications should change the wording to eliminate the word "both" and the second occurrence of "non-refundable" to make the subsection more readable. RESPONSE The commission notes the proposed wording is actually clearer as is, and less susceptible to misinterpretation as to which fees must be sent immediately upon application, and the status of both fees as nonrefundable. COMMENT NO. 17 One comment was received stating ARM 18.6.231(4) and (4)(l) on off-premise sign standards should delete the phrase "or maintained" as a part of the list of characteristics of signs so the rule would refer to signs being erected only, and should remove reference to prohibitions on signs being within ten feet of a public right-of-way. The comment stated that maintenance of signs is allowed by statute and is not appropriately listed in the rule. The comment also stated signs are often placed in close proximity to a right-of-way line, but are allowed if all required distances from the roadway are met, so the ten foot distance language should be deleted. RESPONSE The commission agrees with the comment and will amend the rule as shown above to remove the words "or maintained" and delete the ten foot from the right-of-way language. COMMENT NO. 18 One comment was received stating ARM 18.6.251(6) on repair of nonconforming signs should change the time required for completion of work from 60 days to six months, as was previously stated in the rule. The comment stated it is difficult to obtain repair materials and supplies in a timely manner, so a 60 day requirement to complete sign repairs will likely never be possible. RESPONSE The commission agrees with the comment and will amend the rule as shown above to change the deadline for repair from 60 days to six months. COMMENT NO. 19 One comment was received stating ARM 18.6.251(9) on repair of nonconforming signs should extend the deadlines for failure to display advertising matter from 45 days to 90 days because it is difficult to inventory every sign and arrange for a new display within 45 days of damage. RESPONSE The commission agrees with the comment and will amend the rule as shown above to change "45 days" to "90 days." COMMENT NO. 20 One comment was received stating ARM 18.6.251(10) on repair of nonconforming signs should change the time required for repair from 45 days to 90 days, as it is difficult to obtain repair supplies and complete repairs within the shorter time frame. RESPONSE The commission agrees with the comment and will amend the rule as shown above to change "45 days" to "90 days." COMMENT NO. 21 One comment was received stating ARM 18.6.251(11) on repair of nonconforming signs should delete section (11) entirely, as it deals with payment for purchase of a nonconforming sign by the department. The comment noted the department does not buy nonconforming signs, so this section is unnecessary. RESPONSE The commission agrees with the comment and will amend the rule as shown above to delete (11) on payment for department purchase of nonconforming signs. COMMENT NO. 22 One comment was received stating ARM 18.6.262(1) on sign structures that are blank or in disrepair for 60 days, the deadline for requiring remedial action should be changed from "45 days" to "six months," because materials for repair of signs is often difficult to obtain in a timely manner. RESPONSE The commission agrees with the comment and will amend the rule as shown above, to change "45 days" to "six months." COMMENT NO. 23 One comment was received stating ARM 18.6.262(2) on describing when a sign is in disrepair should delete the word "unreadable" because it is redundant. The remainder of the sentence already states the sign "is not visible to the traveling public." RESPONSE The commission agrees with the comment and will amend the rule as shown above to delete the word "unreadable" from (2). COMMENT NO. 24 One comment was received stating New Rule I(1) regarding on-premise signs should not state the "department is the sole determinant as to whether a sign qualifies as an on-premise sign" because the language implies or requires some type of review by MDT. The comment suggested the qualifications be listed and the determination derived from that list without MDT review or approval. The comment stated this designation is controlled and regulated at the local level. RESPONSE The commission notes MDT is the agency charged with regulating outdoor advertising in this state, thus MDT is the correct entity to determine whether rule requirements have been met. Secondly, the entire New Rule I lists the qualifications of on-premise signs, in accordance with and in addition to 75-15-111, MCA, thus any determination of the status of a sign as on- or off-premises would be made by reviewing New Rule I. Finally, MDT and local governments share jurisdiction of outdoor advertising where controlled routes run through local government areas, thus MDT remains a player in determinations regarding on-premise signs. COMMENT NO. 25 One comment was received stating New Rule I regarding on-premise signs should not use the term "principal" in (3), (5), and (6) to describe the "principal establishment," the "principal activity" and the "principal products or services." The comment stated this word adds subjectivity to the determination. The comment recommended all references to "principal" be removed in favor of allowing any advertising display representing goods or services offered on the property. RESPONSE The commission initially notes the language of the rule using the word "principal" to define on-premise establishment, activities, and products is taken directly from the federal regulation on this point found at 23 CFR �750.709 which states "When � the product or service advertised is only incidental to the principal activity, or if it brings rental income to the property owner, it shall be considered the business of outdoor advertising and not an on-property sign." Additionally, MDT has increasingly encountered business locations which include any number of incidental activities such as an ATM machine at a convenience store, which does not qualify the premise to erect an advertisement for the bank which runs the ATM machine. New Rule I will help clarify on-premise sign determinations. COMMENT NO. 26 One comment was received stating New Rule I(6)(d) and (e) on land situations which are not considered on-premise advertising should not have qualifications which are based on the proximity of the advertising to the target audience. The comment states development of property should be controlled at a local level, including distance relationships between structures, landscape, and roadways. The comment also did not agree with integrating land use to the goods and services. RESPONSE The commission noted (6) contains a list of situations in which use of land will not qualify for on-premise advertising. Included in the list are land located more than 1/4 mile from the principal activity, or in closer proximity to the highway than the principal activity, and land occupied solely by structures which serve no purpose to the principal activity. These restrictions are necessary to address situations where landowners try to claim a sign is on-premise when it is not due to distance or sham activities used solely to qualify a sign location as on-premise. New Rule I does not set up qualifications based on proximity of the advertising to the target audience, nor control development of property. Instead, the rule clarifies qualifications for on-premise signs while informing the public of types of land use situations which do not qualify. COMMENT NO. 27 One comment was received stating ARM 18.6.251(6) on repair of nonconforming signs should not have eliminated the sentence "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," as this requirement is found in federal regulation at 23 CFR �750.707. RESPONSE The commission agrees with the comment and will amend the rule as shown above to re-insert the sentence at (5). COMMENT NO. 28 One comment was received stating ARM 18.6.211 and 18.6.212 should not have stated the initial permit fee was "nonrefundable." Although both that fee and the separate inspection fee must be submitted with an application, only the inspection fee is nonrefundable. The initial permit fee would be refunded if an application is denied, as no "initial permit" would be issued. RESPONSE The commission agrees with the comment and will amend the rule as shown above. /s/ Lyle Manley /s/ Nancy Espy Lyle Manley Nancy Espy Rule Reviewer Chair Transportation Commission Certified to the Secretary of State November 17, 2008 |
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