ARC 2645C

ARC 2645C

TRANSPORTATION DEPARTMENT[761]

Adopted and Filed

Pursuant to the authority of Iowa Code sections 307.12 and 307A.2, the Iowa Department of Transportation, on July 13, 2016, adopted amendments to Chapter 117, "Outdoor Advertising," and Chapter 118, "Logo Signing," Iowa Administrative Code.

Notice of Intended Action for these amendments was published in the May 25, 2016, Iowa Administrative Bulletin as ARC 2543C.

The amendments to Chapter 117 ease restrictions and clarify existing requirements for companies and individuals interested in outdoor advertising signs along primary highways in Iowa. The amendments correct the use of terms for the sake of meaning and consistency with Iowa Code chapter 306C; eliminate redundant, confusing or nongermane language; improve reader comprehension of original intent; eliminate overly restrictive regulations; clarify zoning requirements; provide for notice preceding permit revocation allowing opportunity to correct signs which are blank or in a state of disrepair; eliminate the permitting system for religious signs and service club signs; clarify that permit revocation may occur in conjunction with the issuance of removal notices; and include opportunities for contested case hearings within the rule rather than expecting the reader to search other Iowa Code chapters.

The amendments to Chapter 118 clarify that individual business signs are to be provided by the applicants; allow for the placement of signs in urban areas; limit the number of individual business signs to four on a trailblazer service sign; update the list of protected statuses to the antidiscrimination provision; prohibit entry restrictions based on age; set a minimum of eight hours of operation per day for food services; require a minimum seating for ten customers for food services; allow for breweries and distilleries to qualify for the attractions category of the program; clarify existing procedures regarding the attractions category to explain that the department reviews the sites first for technical compliance and then submits the applications to the tourist signing committee; clarify that the $50 service fee for changing out logo signs is a per-trip fee; require signs to be retroreflective; and eliminate the separate RV symbol program.

These rules do not provide for waivers. Any person who believes that the person's circumstances meet the statutory criteria for a waiver may petition the Department for a waiver under 761—Chapter 11.

These amendments are identical to those published under Notice of Intended Action.

After analysis and review of this rule making, no impact on jobs has been found.

These amendments are intended to implement Iowa Code chapters 306B and 306C.

These amendments will become effective September 7, 2016.

Rule-making actions:

Item 1. Amend rule 761—117.1(306B,306C), definitions of "Official sign or notice" and "On-premises sign," as follows:

"Official sign or notice" means a sign or notice lawfully erected and maintained by a city, county or public agency within its territorial or zoning jurisdiction for the purpose of carrying out an official duty or responsibility. The definition includes a historical marker lawfully erected by a state or local government agency or a nonprofit historical society.

"On-premises sign" or "on-property sign" means an advertising device advertising the sale or lease of, or activities being conducted upon, the property where the sign is located. The criteria to be used to determine if an advertising device qualifies as on-premises signing, excluding development directory signing, include but are not limited to the following:

1.No change.

2.An on-premises sign must be located on the same property as the advertised activity or the same property as that advertised for sale or lease. A subdivided property is may be considered to be one property if all lots remain under common ownership and all lots share a common, private access to public roads. However, if any lot in the subdivided property is sold or disposed of in any manner, that lot will be considered to be separate property.

3.Contiguous lots or parcels of land combined for development purposes are may be considered to be one property for outdoor advertising control purposes provided they are owned or leased by the same party or parties. However, land held by lease or easement must be used for a purpose related to the advertised activity other than signing. To be considered one property, all contiguous lots or parcels of land must also be used for a purpose related to the advertised activity other than signing.

4. to 7. No change.

Item 2. Amend rule 761—117.2(306B,306C) as follows:

761—117.2(306B,306C) General provisions.

117.2(1) Scope. This chapter of rules pertains to all advertising devices which are visible from the main traveled way of any interstate, freeway-primary, or primary highway, with the following exceptions:

a. and b. No change.

117.2(2) to 117.2(4) No change.

117.2(5)  Advertising devices within the right of way. Any advertising device placed or erected within the right of way of any interstate, freeway-primary, or primary highway , except signs or devices authorized by law or approved by the department, is an obstruction in the highway right of way and violates Iowa Code section 318.3 and subsection 318.11(1) in violation of Iowa Code chapter 318 is subject to removal in the manner specified in Iowa Code chapter 318. In accordance with Iowa Code sections 318.4 and 318.5, the department shall remove the advertising device and assess the cost of removal against the owner of the device.

Item 3. Amend rule 761—117.3(306B,306C) as follows:

761—117.3(306B,306C) General criteria. The department shall control the erection and maintenance of advertising devices, subject to the provisions of these rules, in accord with the following criteria:

117.3(1) Prohibition. Advertising devices shall not be erected, maintained or illuminated unless they comply with the following:

a. No sign advertising device shall attempt or appear to attempt to direct the movement of traffic.

b. No sign advertising device shall interfere with, imitate or resemble any official sign, signal or device.

c. No directional sign or sign advertising device subject to the more restrictive controls of the bonus Act shall move or have any animated or moving parts.

d. No sign advertising device shall be erected or maintained upon trees, painted or drawn upon rocks or other natural features.

e. No off-premises sign advertising device shall include any flashing, intermittent or moving light or lights except those signs giving public service information such as time, date, temperature, weather and news. No on-premises sign located within the adjacent area of an interstate highway but outside an area zoned and used for commercial or industrial purposes, as defined in rule 761—117.1(306B,306C), shall include any flashing, intermittent or moving light or lights except those signs giving public service information such as time, date, temperature, weather and news. Any variation or addition to the stated service information is subject to department approval. This paragraph does not prohibit an LED display, provided:

(1) to (3) No change.

f. No lighting shall be used in any way in connection with any sign advertising device unless it is so effectively shielded as to prevent beams or rays of light from being directed at any portion of the main traveled way of any 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. This paragraph does not prohibit an LED display provided the light intensity presented does not exceed that allowed for other illuminated displays.

g. No directional sign or sign advertising device subject to the more restrictive controls of the bonus Act shall be obsolete.

h. Signs No advertising device shall be maintained in good repair so as to be legible. Any advertising device that for a period of at least 90 days is in a state of disrepair or is illegible due to deferred maintenance is subject to removal in the manner specified in subrule 117.8(1), and any permit that has been issued for the advertising device is subject to revocation in a state of disrepair or illegible for a period of time exceeding 90 days.

i. Signs Advertising devices shall be securely affixed to a substantial structure.

j. No directional sign or sign advertising device subject to the more restrictive controls of the bonus Act shall advertise activities which are illegal under federal or state laws in effect at the location of those activities or at the location of the sign.

k. No change.

l. No off-premises advertising device may be erected within the adjacent area of any interstate, freeway-primary or primary highway that has been designated a scenic highway or scenic byway if the advertising device will be visible from the highway.

m. An advertising device shall not be constructed or reconstructed beyond the adjacent area in unincorporated areas of the state if the advertising device is visible from the main traveled way of any interstate, freeway-primary, or primary highway except for on-premises signs and official signs and notices.

117.3(2) and 117.3(3) No change.

117.3(4) Zoning exclusions.

a. A zone in which limited commercial or industrial activities are permitted incidental to other primary land uses is not a commercial or industrial zone for outdoor advertising control purposes.

b. Action which is not a part of comprehensive zoning and is taken primarily to permit outdoor advertising devices in accordance with Iowa Code chapter 335 or Iowa Code chapter 414 is not zoning a commercial or industrial zone for advertising control purposes.

c. Action taken primarily to permit advertising devices is not a commercial or industrial zone for advertising control purposes.

Item 4. Amend rule 761—117.5(306B,306C) as follows:

761—117.5(306B,306C) Location, size and spacing requirements. This rule does not apply to on-premises signs.

117.5(1) Advertising devices lawfully in existence prior to July 1, 1972.

a. An advertising device that was lawfully in existence prior to July 1, 1972, and is visible from any interstate, freeway-primary or primary highway, including a device located beyond the adjacent area in unincorporated areas, may remain in existence without conforming to subrule 117.5(5) as long as the device otherwise conforms to all other applicable statutory and regulatory requirements. The permit provisions of rule 761—117.6(306C) apply.

b. No change.

117.5(2) to 117.5(4) No change.

117.5(5) Advertising devices erected after July 1, 1972. Except as otherwise provided in this chapter, an advertising device which is visible from the main traveled way of any interstate, freeway-primary, or primary highway shall not be erected after July 1, 1972, or subsequently maintained within the adjacent area unless the advertising device complies with the following:

a. No change.

b. Commercial or industrial area.

(1)No change.

(2)An advertising device visible from the main traveled way of a freeway-primary or noninterstate primary highway must be located within a commercial or industrial zone or an unzoned commercial or industrial area, as defined in Iowa Code section 306C.10.

c. Spacing within city—interstate and freeway-primary highway. Within the corporate limits of a municipality, the following provisions apply to an advertising device which is visible from an interstate or a freeway-primary highway:

(1)No change.

(2)The advertising device shall not be located within the adjacent area on either side of the highway in, or within 250 feet of an interchange or rest area. The 250 feet shall be measured along a line parallel to the centerline from a point opposite the end or beginning of whichever acceleration or deceleration ramp extends the farthest from the interchange or rest area to a point opposite the advertising device.

(3)No change.

d. Spacing outside city—interstate and freeway-primary highway. Outside the corporate limits of a municipality, the following provisions apply to an advertising device which is visible from an interstate or a freeway-primary highway:

(1)No change.

(2)The advertising device shall not be located within the adjacent area on either side of the highway in, or within 250 feet of an interchange or rest area. The 250 feet shall be measured along a line parallel to the centerline from a point opposite the end or beginning of whichever acceleration or deceleration ramp extends the farthest from the interchange or rest area to a point opposite the advertising device.

(3)No change.

e. to g. No change.

h. Spacing—measurement of distance. The minimum distance between two advertising devices visible to traffic proceeding in the same direction shall apply without regard to the side of the highway on which the advertising devices may be located and shall be measured along a line parallel to the centerline of the highway between points directly opposite the advertising devices. When a sign is visible and subject to control from more than one primary highway (interstate, freeway-primary or primary), it must meet spacing requirements along each route.

i. Spacing—rural area next to incorporated area.

(1)No change.

(2)In those areas where the adjacent area on one side of the highway is incorporated and on the opposite side of the highway all or part of the adjacent area is not, the spacing on both sides of the highway, except for daylight spacing, shall be regulated by the rural or unincorporated area spacing requirements.

j. to l. No change.

Item 5. Amend rule 761—117.6(306C), introductory paragraph, as follows:

761—117.6(306C) Outdoor advertising permits and fees required. The owner of an advertising device must apply to the department for an outdoor advertising permit if the device is visible from the main traveled way of any interstate, freeway-primary or primary highway and the device is regulated by subrule 117.4(1) or rule 761—117.5(306B,306C).

Item 6. Amend paragraph 117.6(1)"a" as follows:

a. A permit is required for each face of an advertising device; thus, a permit application must be submitted for each face. Three permits are required for a tri-face device if all three faces are visible from the main traveled way of an interstate, freeway-primary, or a primary highway. However, only one application and permit are required for a back-to-back advertising device that identifies the same business or service on each face if each face is no larger than 8 feet in width or height and 32 square feet in area.

Item 7. Amend subrule 117.6(9) as follows:

117.6(9) Blank sign.

a. A blank sign is:

(1)An advertising device that has had a face physically removed.

(2)An advertising device that has been completely removed.

(3) (2)An advertising device that does not display copy. "This space for rent" or a similar message is not copy.

(4) (3)An advertising device that qualifies as an obsolete sign.

b. A sign that is a blank sign for at least six months shall result in revocation of any permit that has been issued for the advertising device and removal of the advertising device in the manner specified in subrule 117.8(1). A blank sign shall not remain in blank status for a period of time exceeding six months.

c. If the department determines that an advertising device has been blank for a period of time exceeding six months, the department shall issue a notice pursuant to rule 761—117.8(306B,306C) in which the owner has 30 days to either cause it to conform or to remove it.

Item 8. Amend rule 761—117.7(306C) as follows:

761—117.7(306C) Official signs and notices, public utility signs, and service club and religious notices. This rule does not pertain to on-premises signs.

117.7(1) Official signs and notices. Official signs and notices regulated by the Manual on Uniform Traffic Control Devices, as adopted in 761—Chapter 130, shall comply with its provisions. All other official signs and notices shall comply with applicable state law, local ordinance or administrative authority. Historical markers are subject to the approval of the department if they are erected within the right of way of any interstate, freeway-primary or primary highway.

117.7(2) Public utility signs. Public utility signs shall be erected no larger than required to adequately convey the necessary message, and only at such places as are required to adequately mark the location of the utility. Public utility signs are subject to the approval of the department if they are erected within the right of way of any interstate, freeway-primary or primary highway.

117.7(3) Service club and religious notices. Service club and religious notices may be placed upon private property with the permission of the land owner provided the notice complies with the definition of "service club or religious notice" in rule 761—117.1(306B,306C), complies with the general criteria of rule 761—117.3(306B,306C), and does not exceed eight square feet in area.

a. Service club and religious notices shall not be placed within the right of way.

b. Service club and religious notices may be placed within the adjacent area of an interstate highway only if they are eligible for issuance of an outdoor advertising permit. All permit provisions apply, including but not limited to size and spacing requirements of subrule 117.5(5) and permit fees.

c. Service club and religious notices may be placed outside the right of way of a freeway-primary or primary highway and outside the adjacent area of an interstate highway. Notices in these locations may be grouped upon a common panel and shall comply with the following:

(1)The message shall comply with the definition of "service club or religious notice" in rule 761—117.1(306B,306C).

(2)A notice shall not exceed eight square feet in area.

(3)A notice shall comply with rule 761—117.3(306B,306C).

(4)The department's approval shall be obtained prior to erection. A special application form shall be filed with the department, but no fees are required.

Item 9. Amend rule 761—117.8(306B,306C) as follows:

761—117.8(306B,306C) Removal procedures. The department shall cause to be removed every advertising device illegally erected or maintained and every abandoned sign.

117.8(1) Removal of illegal and abandoned advertising devices. In accordance with Iowa Code sections 306B.5 and 306C.19, an advertising device erected or maintained in violation of Iowa Code chapter 306B or 306C or these rules is a public nuisance and may be removed by the department upon 30 days' notice, by certified mail, to the owner of the advertising device and to the owner of the land on which the advertising device is located.

a. The notice shall require the owner of the advertising device to remove the advertising device if it is prohibited, or to cause it to conform to the provisions of these rules if it is not. The department may revoke a permit issued for the advertising device as part of the same notice, in which case, the notice shall be served by restricted certified mail or by personal service.

b. to e. No change.

117.8(2) Removal from right of way and other state-owned property. The department shall remove advertising devices erected upon the right of way of any interstate, freeway-primary or primary highway; see subrule 117.2(5). Unauthorized advertising devices erected upon other property owned by the state of Iowa are subject to removal by the agency, board, commission or department having control or jurisdiction of the property.

Item 10. Adopt the following new rule 761—117.10(17A,306C):

761—117.10(17A,306C) Contested cases.

117.10(1) An applicant who has been denied an outdoor advertising permit by the department may contest the decision in accordance with 761—Chapter 13. The request for a contested case hearing shall be submitted in writing to the director of the office of traffic and safety at the address in subrule 117.2(2). The request shall be deemed timely submitted if it is delivered or postmarked within 30 days of the department's mailing of the letter denying the application.

117.10(2) The owner of an outdoor advertising permit which has been revoked or canceled by the department may contest the decision in accordance with 761—Chapter 13. The request for a contested case hearing shall be submitted in writing to the director of the office of traffic and safety at the address in subrule 117.2(2). The request shall be deemed timely submitted if it is delivered or postmarked within 30 days of the owner's receipt of the revocation notice issued by the department.

117.10(3) Failure to timely request a hearing on the denial, revocation, or cancellation of a permit is a waiver of the right to a hearing and a failure to exhaust administrative remedies.

Item 11. Amend rule 761—117.15(306C) as follows:

761—117.15(306C) Development directory signing.

117.15(1) No change.

117.15(2) Limitation. Each business within the development is limited to its name appearing on not more than two development directory signs visible to traffic proceeding in any one direction on any interstate, freeway-primary or primary highway.

117.15(3) Commercial or industrial development. A development directory sign must be located within a commercial or industrial development. For the purposes of this rule, a commercial or industrial development is a single premises that meets all of the following requirements:

a. No change.

b. No part of the development is separated from another part by an interstate, freeway-primary, or a primary highway.

c. to g. No change.

Item 12. Amend rule 761—118.1(306C) as follows:

761—118.1(306C) Introduction. Logo signing consists of individual business signs attached to specific service signs erected by the department within the right-of-way of interstate and freeway-primary highways. The purpose of logo signing is to provide specific motorist service information of interest to the traveling public. Logo signing shall comply with this chapter and the "Manual on Uniform Traffic Control Devices," as adopted in rule 761—130.1(321). The department shall perform all required installation, maintenance, removal and replacement of specific service signs and business signs within the right-of-way. The business signs are provided by the applicants.

Item 13. Amend rule 761—118.2(306C), definition of "Trailblazing sign," as follows:

"Trailblazing sign" means a specific service sign erected on the road network accessed from an interchange that has logo signing; the sign directs motorists to a particular business signed on the mainline and has spaces for the attachment of business signs.

Item 14. Amend rule 761—118.3(306C) as follows:

761—118.3(306C) Erection and location of specific service signs and placement of business signs.

118.3(1) General.

a. The department shall erect specific service signs at rural interchanges if the requirements of this chapter are met and sufficient space is available. The department may also erect specific service signs at urban, or nonrural interchanges if the requirements of this chapter are met and sufficient space is available. If sufficient space is not available for more than one specific service sign, the department may install a general service sign in lieu of a specific service sign.

b. No change.

118.3(2) Mainline specific service signs and placement of business signs. Following are the requirements for mainline specific service signs erected in advance of an interchange, in a single direction of travel, and limitations regarding the number and types of business signs attached to these service signs.

a. to i. No change.

j. The department shall designate each mainline specific service sign for a particular type of motorist service, although the service sign may, in use, be displaying more than one service type, subject to paragraph "h" of this subrule. When a specific service sign designated for a particular service type exists and that sign is full, the department may grant an exception, in accordance with subrule 118.4(11), to allow the placement of a business sign for that service type on a specific service sign designated for another service type, provided that the department has displayed the legend for that service type on the service sign.

118.3(3) No change.

118.3(4) Trailblazing signs and placement of business signs.

a. to c. No change.

d. Trailblazing signs shall not display more than four business signs.

d. e.The department may approve the use of an official traffic control device that is placed by the department or a local jurisdiction on the public right-of-way in compliance with the "Manual on Uniform Traffic Control Devices" as a substitute for a trailblazing sign.

e. f.If site or other conditions do not permit the erection of a trailblazing sign, the department may approve the use of an off-premises advertising device as a substitute for a trailblazing sign if the advertising device complies, as applicable, with 761—Chapter 117 (including permit requirements) and any local regulations; the device is legible and understandable; and the device is placed along the route in advance of the intersection where the trailblazing sign would have been placed.

f. g.No more than two trailblazing signs or, including approved substitutes, are allowed for a business. If the department determines that more than two trailblazing signs or, including approved substitutes, would be needed to guide motorists to the business, the business does not qualify for logo signing at the interchange. Also, if the department determines that one or two trailblazing signs or approved substitutes are required and conditions do not permit the erection of the required trailblazing signs or approved substitutes, the business does not qualify for logo signing at the interchange.

Item 15. Amend rule 761—118.4(306C) as follows:

761—118.4(306C) Eligibility for placement of business signs on mainline specific service signs. To qualify for placement of a business sign on a mainline specific service sign, the business must shall be open to the general public, shall not restrict entrance based on age, and shall meet the following requirements:

118.4(1)  Written assurance. Discrimination prohibited.  The business shall give the department written assurance of its conformity with all applicable laws concerning the provision of public accommodations without regard to race, religion, color, age, sex or national origin, and shall not be in continuing breach of that assurance. As a condition of approval as a participant in the logo signing program, the applicant shall give the department written assurance of the business's conformity with all applicable laws prohibiting discrimination based on age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion or disability, and a participant shall not be in breach of that assurance.

118.4(2) and 118.4(3) No change.

118.4(4) Food.

a. Qualifications. To qualify for placement of a business sign on a food specific service sign, the business must:

(1)No change.

(2)Operate a minimum of eight hours per day, six days per week, and serve three meals per day: breakfast, lunch, and dinner.

1.At a minimum, breakfast shall be served from 10 a.m. to 11 a.m. and shall consist of at least two of the following items: eggs, bacon, ham, sausage, pancakes, waffles, oatmeal, cereal, fruit , muffins, toast, croissants, doughnuts or rolls , or combinations thereof. Hamburgers, hot dogs, pizza, burritos, or other foods not commonly associated with breakfast menus do not meet the breakfast requirement and at least two of the following drinks: coffee, juice, tea or milk.

2. and 3. No change.

(3) and (4) No change.

(5)Have seating available for a minimum of ten customers.

b. and c. No change.

118.4(5) and 118.4(6) No change.

118.4(7) Attraction.

a. and b. No change.

c. Types of qualifying sites or attractions. The site or attraction must be one of the following:

(1) to (7) No change.

(8)Winery, brewery or distillery with on-site production, tours, gift shop, and tasting room.

(9) to (17) No change.

118.4(8) to 118.4(11) No change.

Item 16. Amend subrule 118.5(3) as follows:

118.5(3)  Applications for attraction signing. The department shall perform an initial review of all applications for attraction signing to determine if the attraction signing meets the technical requirements, such as the maximum distance the site or attraction is allowed to be from the interchange. If the site or attraction meets the technical requirements, the department shall submit the applications for attraction signing to the tourist signing committee. The tourist signing committee will determine whether the applications meet the qualifications set forth in subrule 118.4(7) for an attraction under the logo signing program. The composition of the committee is set out in 761—subrule 119.5(3).

Item 17. Amend subrule 118.5(5) as follows:

118.5(5) Fees. A business is required to pay the following fees to the department for participation in the logo signing program.

a. and b. No change.

c. Service fee. The department may install replacement business signs at the request of the business and shall assess a $50 service fee per business sign installed. The department shall also assess a $50 service fee to install a renovated or new business sign that replaces a misleading, unsightly, badly faded or dilapidated sign, as specified in subrule 118.7(5). If removal of an existing business sign for the purpose of refurbishing is requested by the business, thereby requiring two service trips by the department, the service fee shall be applied per trip. The department shall invoice the business once installation is complete; the service fee is due within 30 days.

d. RV symbol fee. See rule 761—118.8(306C).

Item 18. Amend subrule 118.7(3) as follows:

118.7(3)  Reflectorization.  Reflectorization of business signs is optional, at the discretion of the applicant All business signs must be retroreflective.

Item 19. Amend subrule 118.7(4) as follows:

118.7(4) Supplemental messages.

a. With department approval, a supplemental messages message such as "OPEN 24 HRS," "DIESEL," "E-85," "MECHANIC ON DUTY," "24 HR TOWING," "RV ACCESS," or the dates of operation for seasonal operations may be displayed on a mainline business signs sign provided the letter height is at least 6 5 inches. Approval shall be limited to essential motorist information and does not extend to messages such as, but not limited to, "INDOOR POOL," "CAR WASH" or "PLAY AREA."

b. With departmental approval, a scaled-down version of the supplemental messages indicating the dates of operation for seasonal operations message used on the mainline business sign may be displayed on ramp business signs provided the letter height is at least 2 inches.

c. Business signs are limited to one supplemental message per business sign.

Item 20. Rescind and reserve rule 761—118.8(306C).

[Filed 7/13/16, effective 9/7/16]

[Published 8/3/16]

Editor's Note: For replacement pages for IAC, see IAC Supplement 8/3/16.