BEFORE THE transportation COMMISSION
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 18.6.238 pertaining to Outdoor Advertising Control
NOTICE OF AMENDMENT
TO: All Concerned Persons
1. On March 16, 2018, the Transportation Commission (commission) and the Department of Transportation (department) published MAR Notice No. 18-167 pertaining to the proposed amendment of the above-stated rule at page 525 of the 2018 Montana Administrative Register, Issue Number 5.
2. The commission and the department have amended ARM 18.6.238 as proposed, but with the following changes (new matter underlined, deleted matter interlined):
18.6.238 COMMUNITY WELCOME TO SIGNS (1) and (2) remain as proposed.
(3) Welcome to signs must not contain any form of commercial advertising. The name only, without any promotional information, of a sponsor, benefactor, or support group may be recognized on welcome to signs
located outside of the public right-of-way. Names of sponsors, benefactors, or support groups must be secondary to the welcome to sign. The area of the welcome to sign dedicated to a sponsor, benefactor, or sponsor group name must not be larger than one third the total size of the welcome to sign.
(4) through (13) remain as proposed.
AUTH: 61-8-203, 75-15-121, MCA
IMP: 61-8-203, 75-15-111, 75-15-113, MCA
3. The commission and the department have thoroughly considered the comments received. A summary of the comments received and the commission's and department's responses are as follows:
COMMENT NO. 1: Fourteen comments were received in support of the proposed rule amendments.
RESPONSE: MDT acknowledges receipt of the comments in support and appreciates all public comment on its proposed rule amendments.
COMMENT NO. 2: One comment was received stating ARM 18.6.238(3) should not state sponsor acknowledgements must be placed "outside public right-of-way," as that is too broad of a term, but should use "state-controlled right-of-way" instead. The comment also stated the rule should not limit sponsor acknowledgements to signs placed outside public right-of-way, as the rule limitations of name of sponsor only and restricted sign size are sufficient to protect MDT concerns with sponsor acknowledgements in the right-of-way.
RESPONSE: MDT agrees with the comment and will amend the rule as shown above to delete the phrase "located outside of the public right-of-way."
COMMENT NO. 3: One comment was received stating ARM 18.6.238(4)(b) which requires local governments to verify that at least two specific locations outside right-of-way have been considered but were unavailable before a right-of-way encroachment permit is granted should be deleted or amended to remove the requirement for a minimum of two unavailable locations. The comment stated the requirement increases the burden of time, resources and process on local governments and does not further the statutory intent for control of outdoor advertising. The comment stated the requirement limits the use and leveraging of existing public right-of-way in favor of using otherwise developable property to presumably transfer state liability to local government at potentially greater cost to Montana taxpayers.
RESPONSE: MDT's primary intent is always to place signs outside right-of-way whenever possible for traffic safety reasons. The proposed amendment to ARM 18.6.238(4)(b) will clarify a right-of-way (encroachment permit) location is secondary, after efforts to place the sign in a safer location outside right-of-way have been exhausted. MDT notes the welcome to sign process has always required verification of two unavailable locations outside right-of-way, and this requirement has not changed with the current amendments.
COMMENT NO. 4: One comment was received stating ARM 18.6.238(4)(c) on prohibiting signs which distract from official traffic control messages should not add the phrase "as determined by the department." The comment stated the rule contains no standards or criteria for this determination. The comment stated the standards or criteria should be adopted as part of these rule amendments for consistency sake among different communities or department districts.
RESPONSE: MDT is required to comply with the Federal Highway Administration Manual on Uniform Traffic Control Devices (MUTCD) for traffic control signs. The rule amendment allows different proposed sign designs from different communities to be evaluated based on the specific proposed design for concurrence and lack of conflict with the MUTCD.
COMMENT NO. 5: One comment was received stating ARM 18.6.238(5)(i) prohibiting signs in locations outside right-of-way but which must be maintained by accessing them through right-of-way reduces the flexibility of a municipality to place the signs in locations that work best for their community. The comment stated the department should reconsider this restriction, and if necessary address any risk through requiring an encroachment permit.
RESPONSE: MDT has never allowed any permitted sign of any type to be maintained through the highway right-of-way due to safety concerns. Additionally, since the rule amendments will now allow welcome to signs adjacent to interstate (full access control) highways, the safety risk for use of right-of-way for maintenance would be even higher. MDT cannot disregard safety issues for sign maintenance issues. Under the rule amendment, any welcome to sign which first requires an encroachment permit must follow all MDT encroachment permit requirements (e.g., traffic control) for entry onto the right-of-way.
COMMENT NO. 6: One comment was received stating ARM 18.6.238(7) and (14) stating welcome to signs will not be considered in determining the minimum spacing requirements for other permitted OAC signs would allow other signs which may obscure the welcome to signs that are already in place. The comment stated this policy would completely obliterate the right of local governments in obtaining an OAC permit. The comment stated the amendment makes no sense to arbitrarily prefer private off-premise advertising signs over existing public welcome-to signs.
RESPONSE: The proposed rule amendment to ARM 18.6.238(7) was proposed for the benefit of local government applicants. If the standard off-premise billboard spacing requirements were to be applied to welcome to signs, it would significantly reduce the available sign locations due to the presence of numerous permitted billboards already in place along highways leading into and out of the communities. The proposed amendment will actually offer greater opportunity for community sign locations, rather than giving any "preference" to private off-premise advertising signs, which might otherwise serve to block desired locations simply due to their current locations.
COMMENT NO. 7: One comment was received stating ARM 18.6.238(9) removes the existing duties and responsibilities for placement and maintenance of welcome to signs and provides instead they will be addressed through encroachment permits. The comment stated the department should instead adopt sign installation and maintenance standards or criteria, so all parties understand the requirements and restrictions prior to initiation of the permit process, and different expectations are not imposed on different communities in different MDT districts.
RESPONSE: Standards and criteria for encroachment permits are contained in the encroachment permit application and form and are standard throughout the state. An applicant may review encroachment permit standards at any time prior to application. The applicants for sign permit locations within right-of-way will already know the encroachment permit standards and criteria prior to application for the sign permit, as the encroachment permit must be obtained first.
COMMENT NO. 8: One comment was received stating ARM 18.6.238(13) should not remove the "grandfather" clause for existing welcome to signs and require local governments to submit an application for an OAC permit within one year of the rule adoption. The comment stated the imposition of this requirement on existing off-premise billboards would raise serious concerns about vested property rights, yet MDT has no similar concerns with requiring all local governments to bring their welcome to signs into compliance with these new requirements. The comment suggested the "lawful" approach is to keep the rule language that acknowledges existing non-conforming welcome to signs and provide a process for future modification approval or denial of such signs.
RESPONSE: MDT cannot "grandfather" existing signs or designate the signs as "non-conforming" under existing federal and state statutes, rules, and the Federal-State Agreement on Outdoor Advertising. The proposed rule amendments will allow MDT to evaluate the safety issues of any existing welcome to signs within right-of-way, and require application for an encroachment permit, where one does not exist. The proposed amendment will also allow MDT to evaluate conformance with outdoor advertising control rules for all existing signs, whether within or outside right-of-way.
COMMENT NO. 9: One comment was received stating ARM 18.6.238(10) requiring a local government to submit a modification application and obtain MDT approval prior to modifications other than routine maintenance will change an existing modification process into a "nebulous" process with unknown standards and criteria. The comment stated the rule did not define "routine maintenance." The comment stated MDT should adopt definitions, standards, and criteria as part of these rule amendments, so all parties understand the requirements and different expectations are not imposed on different communities in different MDT districts.
RESPONSE: The proposed amendments mirror existing ARM standards found in ARM 18.6.252 on upgrade or relocation of conforming off-premise commercial advertising signs. Thus, modifications such as change in height, location, width, area on which copy appears, etc. would require a modification application and MDT approval. MDT already evaluates modification applications for other types of permitted signs and notes those permit holders are able to distinguish between routine maintenance and other greater modifications to signs.
COMMENT NO. 10: One comment was received stating ARM 18.6.238(12) gives MDT unlimited authority to deny any welcome to sign permit that may negatively impact the traveling public but does not define the term or give standards or criteria for denial. The comment stated this type of "open and unspecified authority" can cause unnecessary cost, time, and resources of local governments that do not know the requirements. The comment stated MDT should adopt definitions, standards, and criteria as part of these rule amendments, so all parties understand the requirements and different expectations are not imposed on different communities in different MDT districts.
RESPONSE: MDT must retain the ability to evaluate individual sign permit applications for traffic safety issues—especially for right-of-way locations—and OAC rule compliance based on the specific location of a proposed community sign. MDT's OAC program staff continue to be available to local governments to offer guidance at any stage of the permit application process.
/s/ Carol Grell Morris /s/ Michael T. Tooley
Carol Grell Morris Michael T. Tooley
Rule Reviewer Director
Department of Transportation
/s/ Barb Skelton
Certified to the Secretary of State May 1, 2018.