TRANSPORTATION CABINET

Department of Highways

Division of Maintenance

(Amended After Comments)

 

      603 KAR 10:001. Definitions.

 

      RELATES TO: KRS 177.830-177.890, 177.572-177.576, 23 U.S.C. 103, 23 U.S.C. 131, 23 C.F.R. Part 750

      STATUTORY AUTHORITY: KRS 177.860, 23 U.S.C. 131

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 177.860 requires the cabinet to promulgate administrative regulations to establish reasonable standards for advertising devices on or visible from interstate, parkway, and federal-aid primary highways. This administrative regulation defines the terms used in 603 KAR Chapter 10.

 

      Section 1. Definitions. The following definitions shall apply in this chapter:

      (1) "Abandoned" or "discontinued" means that for a period of one (1) year or more a static advertising device as used in 603 KAR 10:010 or an electronic advertising device as used in 603 KAR 10:020 has:

      (a) Not displayed advertising matter;

      (b) Displayed obsolete advertising matter; or

      (c) Needed substantial repairs due to lack of maintenance.

A notice that the device is for sale, rent, or lease shall not be considered advertising matter.

      (2) "Activity boundary line" means the delineation on a property of those regularly used buildings, parking lots, storage, and process areas that are an integral part of and essential to the primary business activity that takes place on the property.

      (3) "Advertising device" is defined by KRS 177.830(5).

      (4) "Cabinet" means the Kentucky Transportation Cabinet.

      (5) "Centerline of the highway" means a line equidistant from the edges of the median separating the main-traveled ways of a divided interstate, parkway, national highway system, or federal-aid primary highway, or the centerline of the main-traveled way of a nondivided interstate, parkway, national highway system, or federal-aid primary highway.

      (6) "Certified arborist" means an arborist prequalified within the landscaping classification of the Transportation Cabinet’s Prequalification Committee and is certified by the Kentucky Arborists Association as a certified arborist or a board certified master arborist.

      (7)["Cleaning" means selective pruning to remove only dead or broken branches.

      (8)] "Commercial or industrial activities" is defined by KRS 177.830(9).

      (8)[(9)] "Commercial or industrial business" means an activity on an interstate or parkway generally recognized as commercial or industrial by local zoning authorities. The following shall not be considered a commercial or industrial business:

      (a) An outdoor advertising structure;

      (b) An agricultural, forestry, ranching, grazing, farming, and related enterprise, including a wayside fresh produce stand;

      (c) An enterprise normally or regularly in operation less than three (3) months of the year;

      (d) A transient or temporary enterprise;

      (e) An enterprise not visible from the main traveled way;

      (f) An enterprise conducted in a building principally used as a residence;

      (g) A railroad track and minor siding; or

      (h) A facility generally recognized as a utility.

      (9)[a business engaging in a commercial or industrial enterprise.

      (10)] "Commercial or industrial developed area" means an area on:

      (a) An interstate or parkway where at least four (4)[seven (7)] commercial or industrial businesses are located within an off-premise protected area; and

      (b) A national highway system or federal-aid primary highway where a commercial or industrial zone, or unzoned commercial or industrial area is located.

      (10)[(11) "Commercial or industrial enterprise" means an activity on an interstate or parkway carried on for financial gain and generally recognized as commercial or industrial by local zoning authorities. The following shall not be considered a commercial or industrial enterprise:

      (a) An outdoor advertising structure;

      (b) An agricultural, forestry, ranching, grazing, farming, and related enterprise, including a wayside fresh produce stand;

      (c) An enterprise normally or regularly in operation less than three (3) months of the year;

      (d) A transient or temporary enterprise;

      (e) An enterprise not visible from the main traveled way;

      (f) An enterprise conducted in a building principally used as a residence;

      (g) A railroad track and minor siding;

      (h) A facility generally recognized as a utility;

      (i) A church or cemetery;

      (j) A parking or storage lot; or

      (k) A hospital or school.

      (12)] "Commercial or industrial zone" is defined by KRS 177.830(7).

      (11)[(13) "Crown" means the leaves and branches of a tree measured from the lowest branch on the trunk to the top of the tree.

      (14) "Crown Elevation or Raising" means the removal of lower tree limbs to allow clearance or visibility beneath the crown while maintaining the natural symmetry of the tree.

      (15)] "Department" means the Department of Highways within the Kentucky Transportation Cabinet.

      (12)[(16)] "Destroyed" means a static advertising device as used in 603 KAR 10:010 or an electronic advertising device as used in 603 KAR 10:020 requiring repair due to weather related events, vandalism, or other criminal or tortious[torturous] acts.

      (13)[(17)] "Electronic advertising device" means an advertising device with a message that is changed by an electronic process or remote control, including rotating cubes, rotating vertical triangular slats, turning lights on and off, glow cubes, light emitting diodes, cathode ray tubes and florescent discharge or other similar technology approved by the cabinet.

      (14)[(18)] "Erect" means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or bring into being or establish. It shall not mean the change of a message or routine maintenance.

      (15)[(19)] "Extension" means an addition to a static advertising device not in excess of fifteen (15) percent of the[in excess of the static advertising] device’s face.

      (16)[(20)] "Face" means the part of the [static] advertising device[with a uniform length and uniform height,] including trim and background that contains the[two (2) dimensional] message and informative content.

      (17)[(21)] "Facing" means all faces displayed on the same static advertising device as established in 603 KAR 10:010 or the same electronic advertising device as established in 603 KAR 10:020 and oriented in the same direction of travel.

      (18)[(22)] "Federal-aid primary highway" is defined by KRS 177.830(3) and 23 U.S.C. 131 and shown by the Transportation Cabinet on http://maps.kytc.ky.gov/PAFOA/.

      (19)[(23)] "Highway" means:

      (a) For purposes of 603 KAR 10:010 and 603 KAR 10:020, an interstate, parkway, national highway system, or federal-aid primary highway shown by the Transportation Cabinet on http://maps.kytc.ky.gov/PAFOA/; and

      (b) For purposes of 603 KAR 10:030, a public road maintained by the department.

      (20)[(24) "Illegal" means an advertising device located in a protected area that is in violation of 603 KAR 10:010 or 603 KAR 10:020.

      (25)] "Interstate" is defined by KRS 177.830(2) and 23 U.S.C. 103 and shown by the Transportation Cabinet on http://maps.kytc.ky.gov/PAFOA/.

      (21)[(26)] "Main traveled way" means the traveled way of a highway on which through traffic is carried. This shall not include such facilities as frontage roads, turning roadways, or parking areas.

      (22)[(27)] "National highway system" is defined by 23 U.S.C. 103 and shown by the Transportation Cabinet on http://maps.kytc.ky.gov/PAFOA/.

      (23)[(28)] "Non-billboard off-premise electronic advertising device" means an electronic advertising device located on a federal-aid primary highway or a national highway system highway that is not located on the property that it is advertising and is limited to advertising for a city, church, or civic club located within the community in which the electronic advertising device is erected.

      (24)[(29)] "Non-billboard off-premise static advertising device" means a static advertising device located on a federal-aid primary highway or a national highway system highway that is not located on the property that it is advertising and is limited to advertising for a city, church, or civic club located within the community in which the static advertising device is erected. "Civic or community advertising device" may be used interchangeably with "non-billboard off-premise static advertising device."

      (25)[(30)] "Non-conforming electronic advertising device" means an off-premise electronic advertising device that was lawfully erected but:

      (a) Does not comply with a subsequent state law or administrative regulation; or

      (b) Does not comply with a changed condition that may include the following:

      1. Zoning change;

      2. Highway relocation or reclassification;

      3. Change in a restriction on size, space, or distance; or

      4. Abandonment of required business or businesses.

      (26)[(31)] "Non-conforming static advertising device" means an off-premise static advertising device that was lawfully erected but:

      (a) Does not comply with a subsequent state law or administrative regulation; or

      (b) Does not comply with a changed condition that may include the following:

      1. Zoning change;

      2. Highway relocation or reclassification;

      3. Change in a restriction on size, space, or distance; or

      4. Abandonment of required business or businesses.

      (27)[(32)] "Obsolete" means an advertisement that is out-of-date by thirty (30) days or more, or is no longer discernible.

      (28)[(33)] "Official sign" means a sign located within the highway right-of-way that has been installed by or on behalf of the department or another public agency having jurisdiction that meets one of the following purposes:

      (a) To denote the location of underground utilities;

      (b) A requirement by a federal, state, or local government to delineate the boundaries of a reservation, park, or district;

      (c) To identify a street or highway;

      (d) To control traffic; or

      (e) A requirement by state law.

      (29)[(34)] "Off-premise advertising device" means an off-premise electronic advertising device and an off-premise static advertising device.

      (30)[(35)] "Off-premise electronic advertising device" means an electronic advertising device that contains a message relating to an activity or product that is foreign to the site on which the electronic advertising device and message are located or an electronic advertising device erected by a company or individual for the purpose of selling advertising messages for rental income.

      (31)[(36)] "Off-premise protected area" means an area upon or within 660 feet of the right-of-way of an interstate, parkway, national highway system, or federal-aid primary highway.

      (32)[(37)] "Off-premise static advertising device" means a static advertising device that contains a message relating to an activity or product that is foreign to the site on which the static advertising device and message are located, or a static advertising device erected by a company or individual for the purpose of selling advertising messages for rental income.

      (33)[(38)] "On-premise advertising device" means an on-premise electronic advertising device and an on-premise static advertising device.

      (34)[(39)] "On-premise electronic advertising device" means an electronic advertising device that consists solely of the name of the establishment or that identifies the establishment’s principal, or accessory products or services offered on the property. It does not mean an electronic advertising device that brings rental income to the property owner.

      (35)[(40)] "On-premise protected area" means an area:

      (a) Upon or within 660 feet of the right-of-way of an interstate, parkway, national highway system, or federal-aid primary highway both in and outside of an urban area; and

      (b) Outside of an urban area and beyond 660 feet of the right-of an interstate, parkway, national highway system, or federal-aid primary highway.

      (36)[(41)] "On-premise static advertising device" means a static advertising device that consists solely of the name of the establishment or that identifies the establishment’s principal, or accessory products or services offered on the property. It does not mean a static advertising device that brings rental income to the property owner.

      (37)[(42)]"Parkway" means as formally designated by the Transportation Cabinet on http://maps.kytc.ky.gov/PAFOA/.

      (38)[(43)] "Permitted" means authorized to exist only if a permit is issued from the Department of Highways.

      (39)[(44)] "Protected area" means:

      (a) For a static advertising device, an off-premise protected area and an on-premise protected area; and

      (b) For an electronic advertising device, an urbanized protected area and an on-premise protected area.

      (40)[(45) "Pruning" or "prune" means the selective removal of plant parts without damaging the natural symmetry of the tree or without having a negative effect on the tree’s long-term health and is restricted to cleaning, crown elevation, raising, and thinning.

      (46)] "Routine maintenance" on a nonconforming static advertising device as used in 603 KAR 10:010 or a nonconforming electronic advertising device as used in 603 KAR 10:020 or on a scenic highway means:

      (a) In kind replacement of material components with a like material component;

      (b) Painting of supports and frames;

      (c) Changing of an advertising message;

      (d) Changing existing nonstructural external light fixtures for energy efficiency;

      (e) Replacement of nuts, bolts, or nails;

      (f) A safety related addition that does not increase the structural integrity of the static advertising device or the electronic advertising device;

      (g) A safety related addition that does not prolong the life of the static advertising device or the electronic advertising device; and

      (h) Rebuilding of a destroyed static advertising device or electronic advertising device.

      (41)[(47)] "Scenic byway" is defined by KRS 177.572.

      (42)[(48)] "Scenic highway" is defined by KRS 177.572.

      (43)[(49)] "Scenic strip or site" means an area of particular scenic beauty or historic significance as determined by a federal, state, or local governmental agency having jurisdiction of the area and includes an interest in land that has been acquired for the restoration, preservation and enhancement of scenic beauty.

      (44)[(50)] "Sign Viewing Zone" means an area as established in Figure One incorporated by reference in 603 KAR 10:030 that measures 500 feet maximum along the adjacent edge of the nearest travel lane on the same side of the highway on which the sign is permitted, that has:

      (a) As terminus A, the point on the adjacent edge of travel lane immediately opposite the edge of the outdoor advertising sign face closest to the highway at a ninety (90) degree angle to the highway;

      (b) As terminus B, the point measured along the edge of pavement 500 feet maximum in the direction from which the sign is viewed; provided that Terminus B shall not include areas within an interchange except along the outside shoulders of the outermost ramps and parallel to a state right of way; and

      (c) As terminus C, the point on the edge of the sign that is furthest from the highway.

      (45)[(51)] "Static advertising device" means an advertising device that does not use electric or mechanical technology to change the message.

      (46)[(52)] "Target Viewing Zone" means an area as established in Figure One incorporated by reference in 603 KAR 10:030 that is a combined area of up to 250 feet horizontal distance parallel to a state right-of-way and within the sign viewing zone in which trees, except dogwoods, redbuds, or the official state tree may be removed or pruned with a view permit.

      (47)[(53) "Thinning" or "thin" means work consisting of selective pruning to reduce density of live branches that results in an even distribution of branches on individual limbs and throughout the crown.

      (54) "Topping" or "top" means the reduction of a tree’s size using heading cuts that shorten limbs or branches back to a predetermined crown limit, to sever the leader or leaders, or to prune a tree by the stubbing of mature wood.

      (55) "Tree abuse" means:

      (a) Topping, cutting, or other acts performed to a tree that destroys a tree's natural habit;

      (b) Pruning that leaves stubs or results in a flush cut or splitting of limb ends including chemical or mechanical shearing or mowing of trees;

      (c) The use of equipment that will damage the bark including climbing spikes, nails or hooks, except for the purpose of total tree removal; or

      (d) Damaging a tree while felling another tree.

      (56)] "Turning roadway" means a connecting roadway for traffic turning between two intersecting lanes of an interchange.

      (48)[(57)] "Unzoned commercial or industrial area" is defined by KRS 177.830(8).

      (49)[(58)] "Urban area" is defined by KRS 177.830(10).

      (50)[(59)] "Urbanized protected area" means an area upon or within 660 feet of the right-of-way of an interstate, parkway, National Highway System, or federal-aid primary highway with a population of fifty 50,000 or more as demonstrated by the United States Department of Commerce, United States Census Bureau.

      (51)[(60)] "View permit" means a permit issued by the department to the owner of an advertising device to remove or prune vegetation on the state’s right-of-way.

      (52)[(61)] "Visible" means:

      (a) A message or any part of the static advertising device structure capable of being seen, whether or not legible, without visual aid by a person of normal visual acuity on a scenic highway; or

      (b) A message capable of being seen, whether or not legible, without visual aid by a person of normal visual acuity in a protected area not on a scenic highway.

 

NANCY ALBRIGHT, Deputy State Highway Engineer

MIKE HANCOCK, Secretary

      APPROVED BY AGENCY: April 14, 2014

      FILED WITH LRC: April 15, 2014 at 10 a.m.

      CONTACT PERSON: D. Ann DAngelo, Asst. General Counsel, Transportation Cabinet, Office of Legal Services, 200 Mero Street, Frankfort, Kentucky 40622, phone (502) 564-7650, fax (502) 564-5238.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Ann DAngelo

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation contains all definitions previously contained in 603 KAR 3:080 and adds new definitions applicable to static, electronic, and vegetation regulations for advertising devices in Kentucky.

      (b) The necessity of this administrative regulation: This regulation is necessary to inform the public of the requirements for permitting, operating and maintaining billboards.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 177.860 requires the cabinet to promulgate administrative regulations prescribing standards for the erection, maintenance and operation of advertising devices and 23 U.S.C. 131 conditions retention of additional federal funding on the establishment of controls over the placement of outdoor advertising devices.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will clarify and provide definitions related to billboard permitting in Kentucky.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of: This is a new administrative regulation.

      (a) How the amendment will change this existing administrative regulation: N/A

      (b) The necessity of the amendment to this administrative regulation: N/A

      (c) How the amendment conforms to the content of the authorizing statutes: N/A

      (d) How the amendment will assist in the effective administration of the statutes: N/A

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation affects persons and corporations wishing to erect, operate, and maintain billboards.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

      (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: This new regulation contains definitions applicable to the permitting process in 603 KAR Chapter 10.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): This new administrative regulation contains only definitions applicable to the erection, operation, and maintenance of advertising devices.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): This administrative regulation contains definitions applicable to the erection, operation, and maintenance of advertising devices.

      (5) Provide an estimate of how much it will cost the administrative body to implement the administrative regulation: There are no known costs associated with the amendments to this administrative regulation.

      (a) Initially:

      (b) On a continuing basis:

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: No funding is required.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: There is no need for the cabinet to increase fees or funding.

      (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: No fees are established by this regulation either directly or indirectly.

      (9) TIERING: Is tiering applied? No. Tiering is not applied because this administrative regulation addresses only definitions.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This administrative regulation impacts the Cabinet’s Department of Highways, Division of Maintenance.

      2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 176.860 and 23 U.S.C. 131.

      3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. There will not be any effect on the expenditures of a state or local agency.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This administrative regulation will not generate additional revenue.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This administrative regulation will not generate additional revenue.

      (c) How much will it cost to administer this program for the first year? No administrative costs are required or expected.

      (d) How much will it cost to administer this program for subsequent years? No subsequent administrative costs are anticipated.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+-):

      Expenditures (+-):

      Other Explanation: