Administrative Appeal 23-01 – 330 Charlene St – Appeal of an administrative decision regarding a Billboard sign permit PLNX-23-00301 - An Administrative Appeal regarding the denial of a County sign permit to upgrade an existing billboard (off-premise) sign from a permanent graphic display to an Electronic Message Display (EMD) on property general located at 330 Charlene Street, C/S 1406, Parcel 13, in a Heavy Commercial (CX) zone.  Tax ID: D01225. Lamar Outdoor appeals the decision of the Zoning Coordinator denying the sign permit request to upgrade an existing billboard (off-premise) sign from a permanent graphic display to an Electronic Message Display (EMD) on property general located at 330 Charlene Street, C/S 1406, Parcel 13, in a Heavy Commercial (CX) zone. Any final zoning administrative decision of the Planning Division may be appealed to the County Board of Adjustment. Section 27-1615 of the Yellowstone County Zoning Regulations (2020) govern the appeal process. The Board of Adjustment may affirm the decision in whole or in part, or reverse the decision in whole or in part.

Planning staff recommends the Board affirm in whole the decision to not grant the sign permit to upgrade the existing billboard sign from a permanent graphic display to an Electronic Message Display (EMD).

OWNER: Wayne and Barbara Teyler (property owners)
AGENT: The Lamar Companies - sign owner
LEGAL DESCRIPTION: C/S 1406, Parcel 13
ADDRESS: 330 Charlene St
CURRENT ZONING: Heavy Commercial (CX)
EXISTING LAND USE: Warehouse and Billboard sign
PROPOSED USE: Same with EMD sign faces on the billboard sign structure
SIZE OF PARCEL: 1.26 acres

PLNX-23-00301 - Sign permit - denied.

Lamar Outdoor and the City/County Planning Division have twice before brought a permitting dispute before the city or county Boards of Adjustment. The first instance was in 2011 when several billboard structures were damaged in a wind storm. Two of those boards were on property on N 27th St owned by Lamar Outdoor and north of the MSU Billings athletic fields. The City BOA upheld the Planning staffs' decision to not grant a re-build of the two billboards. A district court appeal was filed that was moved to the Federal District Court of Montana. The judge in the case found the sign code section on re-building of damaged nonconforming billboards to be vague and overturned the BOA decision. The boards were re-built.

The second instance was in 2015/2016 when two adjoining property owners in Lockwood both wanted to have billboard signs oriented to I-90, but there was not enough distance between the boards for both owners to have a billboard. The dispute centered around which owner and which billboard sign company had submitted a sign permit first. The County BOA found in favor of the Planning staff decision to grant the permit to the owner of 2511 Old Hardin Road, but the case in district court decided in favor of Lamar Outdoor to build a billboard at 2531 Old Hardin Road.
 

NORTH:	Zoning: Light Industrial (I1) Land Use: Interstate 90
SOUTH:	Zoning: CX Land Use: Seed distributor
EAST:	Zoning: Heavy Industrial (I2) Land Use: Former Corrette Power Station
WEST:	Zoning: I1 Land Use: Interstate 90 - Cabinetry shop

This is an appeal of the Zoning Coordinator's administrative decision to not approve the request to upgrade an existing billboard sign to an Electronic Message Display (EMD) for a sign located adjacent to Interstate 90 at 330 Charlene Street in a Heavy Commercial (CX) zone district. The administrative decision is based on the County adopted zoning regulations at Section 27-1409. The County has maintained a separate sign code for zoning purposes since it was adopted in August 1989. The sign code - Article X - was approved by County resolution 89-87 (8/17/1989). In 1997, the city and county unified the zoning regulations except the County kept its sign code separate from the unified code. The section on lighting and illumination of signs was adopted as follows:
Section 2 Definitions
Changeable Copy Sign: A sign whose informational content can be changed or altered by manual or electric, electro-mechanical or electronic means. Changeable signs include the following types:
1. Manually Activated: Signs whose alphabetic, pictographic or symbolic information content can be changed or altered by manual means.
2. Electrically Activated: Signs whose alphabetic, pictoragraphic or symbolic informational content can be changed or altered on a fixed display surface composed of electrically illuminated or mechanically driven changeable segments. Includes the following two types:
a. Fixed Message Electronic Signs: Signs whose basic informational content has been pre-programmed to include only certain types of information projections, such as time, temperature, predictable traffic conditions or other events subject to prior programming.
b.Computer controlled Variable Message Electronic Signs: Signs whose informational content can be changed or altered by means of computer-driven electronic impulses.

Section 3 General Provisions Computer controlled variable message electronic signs shall be permitted provided that the bottom of the message center is ten (10) feet above the crown of the adjacent road. Computer controlled variable message electronic signs shall be permitted only in Community Commercial (CC), Highway Commercial (HC), Controlled Industrial (CI) and Heavy Industrial (HI). Billboards not located in the interstate corridor are allowed as indicated below.
(b) Billboards shall be permitted in Highway Commercial (HC) as fellows: (c) Billboards shall be permitted in Community Commercial (CC) as follows: (d) Billboards shall be permitted in Controlled Industrial (CI) and Heavy Industrial (HI) as follows: This sign code did not explicitly state that a "computer controlled variable message electronic sign" was allowed to be used on a billboard sign. Reading the code as a whole, it can be inferred that a billboard sign with an EMD sign display could be allowed. (Archived County sign Code attached) This code expired on December 15, 2020, when the County adopted an entire new zoning code including an update of the sign code section. (new Code Sections 27-1405.C (EMD) and 27-1409 (Billboards) attached)

Prior to the new code adoption, no billboard sign company had applied for or was interested in updating any existing billboard sign to an EMD technology if the sign was located outside the city limits. Until 2016, the state Outdoor Advertising Bureau, part of the MT Department of Transportation, and the MT Highway Commission did not allow billboard signs advertising on the Interstate system to have an electronic message display. It was considered to be too distracting to motorists and the Federal Highway Administration (FHA) had not issued guidance on the allowance of the technology. In 2016, the state updated its regulations to allow Electronic Billboards (EBB) on the interstate system subject to their limitations in the Administrative Rules of Montana 18.6.237. (attached)
 
Planning staff does not believe the intent, or more significantly, the wording of the new County sign code would allow an EMD sign to be used on a billboard. Section 27-1405.C clearly intends for an EMD display to be used for on-premise signs. A billboard is not an on-premise sign. An EMD sign face is required to be used only in conjunction with a permanent graphic display on the same sign structure and cannot be more than 40% of the total sign area. The billboard sign code section at 27-1409 does not mention using an EMD display and only includes the language carried forward from the previous code regarding lighting "be designed to minimize glare and interference with any residential uses or traffic."  Planning staff recommends the Board uphold the administrative decision. The applicant can pursue a request to amend the County sign code to allow an EMD display on billboard signs, but the current code does not allow this technology.

Staff recommends the Board of Adjustment affirm in whole the Zoning Coordinator's decision to not approve the permit to convert this billboard to EMD technology in a County Heavy Commercial (CX) zone.