Program Review

Review of the DC Department of

Transportation Outdoor Advertising

Control Program

FINAL REPORT

March 2012

Federal Highway Administration DC Division With DC Department of Transportation

Table of Contents

Definitions .................................................................................................................... 1-2

Executive Summary ........................................................................................................ 3

Background .................................................................................................................. 5-6

Purpose and Objective .................................................................................................... 7

Scope and Methodology .................................................................................................. 8

Team Members ............................................................................................................... 9

Observations and Resolutions ................................................................................ 10-13

Successful Practices ..................................................................................................... 14

Conclusion .................................................................................................................... 15

Action Plan .................................................................................................................... 16

Appendices ................................................................................................................... 17

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Definitions

23 CFR 750 – The Code of Federal Regulations relating to the Highway Beautification Act. (Appendix B) Compliance Issue – A citation of federal law or regulation which requires immediate steps to comply with that law or regulation. D.C. (District of Columbia)- Also known as Washington, D.C. DCMR (District of Columbia Municipal Regulation) – The current regulations adopted by DC. DCRA (Department of Consumer and Regulatory Affairs) – The current DC agency responsible for issuing permits and providing surveillance and enforcement of outdoor advertising sign regulations for off-premise signs located outside the right of way limits.

DDOT (District Department of Transportation) – The DC agency FHWA holds responsible for local administration of the HBA. District (District of Columbia) – DDOT, DCRA and any other agency with the power to act as an agent of the DC Government. Federal-aid Control Routes – Includes the June 1, 1991 federal-aid primary routes and the current National Highway System (NHS) routes (including Interstate routes). (Appendix D). Federal-aid Control Area – All areas located within 660 feet of a federal-aid control route. Federal-District Agreement (Also referred to as the Federal-State agreement) The negotiated formal agreement entered into on September 7, 1967 between the Secretary of Transportation and the District of Columbia setting forth DC sign specifications consistent with federal size, lighting, and spacing criteria as required by 23 CFR 750.705(b) (Appendix C). FHWA (Federal Highway Administration, DC Division office) – The lead federal agency responsible for administering the HBA in DC. HBA (Highway Beautification Act) (Codified in 23 United State Code (U.S.C) 131) – This legislation was passed by Congress in 1965 to protect the public investment in the

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highway and promote the safety and recreational value of public travel and to preserve natural beauty. (Appendix A) OAC (Outdoor Advertising Control) – The effective control of outdoor advertising as described in 23 CFR 750.705. Observation – An item of evidence discovered through fact-finding and research in this review. Resolution – The course of action that will be taken to correct a compliance issue. S.F. (Square Feet) - Refers to the combined surface area of a sign in this review. Special Sign – According to DCMR 3107.17.1, a special sign is one of the thirty-two (32) signs which meet the standards listed in Section 3107.17.5, that is ―erected, hung, placed, painted, displayed or maintained on an outdoor wall or surface pursuant to a special sign permit issued by the Director of the Department [DCRA]‖.

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Executive Summary

The Federal Highway Administration (FHWA) is the lead federal agency responsible for administering the Highway Beautification Act (HBA), and through their Division offices each state, including DC and Puerto Rico, are held accountable for administering the HBA ―effectively‖. Although the District Department of Transportation (DDOT) may delegate certain responsibilities of this program to other entities, as the recipient of federal-aid highway funding, DDOT is ultimately responsible for administering the HBA in DC. (Appendix A) As required by the HBA, the District executed the1967 Federal-District agreement to promulgate standards for size, spacing and lighting of signs on federal-aid controlled routes. However, this agreement did not explicitly cite these sign standards. Rather, the District elected to reference the sign standards in the then current building code of 1961. This particular building code became the standard for controlling off-premise signs within 660 feet of a federally controlled route. (Appendix C) Although the District agreed to effectively control outdoor advertising (OA) signs, an increasing number of large, moveable signs are being allowed within Outdoor Advertising control areas. The District refers to these signs as ―special signs‖. Since the size of these signs and their ability to be moved to various locations appear to conflict with the HBA, these signs are an integral component of this review to determine whether they are in compliance with the HBA requirements. This review team investigated the following five objectives: Objective 1 – Are DDOT’s special signs in compliance with federal requirements? Objective 2 – Are DDOT’s local sign regulations in compliance with federal

requirements? Objective 3 – Are DDOT’s sign inventory (listing) and surveillance program in

compliance with federal requirements? Objective 4 – Does the Federal-District Agreement specify size, spacing and lighting

sign standards as required by the HBA? Objective 5 – Does DDOT have an outdoor advertising chapter outlining the process

and procedures for effectively controlling outdoor advertising in DC?

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Review Team’s Findings and Resolutions #1 - DDOT’s special signs are not in compliance with the 1967 Federal District agreement or the HBA. Since DDOT wants to pursue amending the Federal-District Agreement, FHWA is willing to allow signs up to 1200 sf. During the field review, FHWA observed 11 ―special signs‖ larger than 1200 sf. (Appendix K) In order for DDOT to come into compliance, they must promptly remove all 11 off-premise commercial sign. However, if DDOT fails to amend their Federal-District agreement, all off-premise commercial signs within the Federal-aid control area must be removed. (Appendices K, L, M) #2 - The District’s current sign laws and regulations are not in compliance with the HBA, CFR regulations or the Federal-District agreement. In order for DDOT to come into compliance, they must develop local sign laws and regulations that comply with federal requirements, and must submit sign regulations and enforcement procedures to FHWA for approval. #3 - DDOT’s sign inventory (listing) and surveillance program is not in compliance with federal requirements. DDOT’s last sign listing was completed in June of 2010 and does not reflect a current listing. The review team discovered three additional signs that were not listed on the last sign listing which supports the need for periodic surveillance in order to update the list. (See Appendix L) In order for the District to come into compliance, DDOT must develop a sign inventory system whereby signs are classified according to HBA requirements (not current city codes). Also, DDOT must develop surveillance procedures to ensure all federal-aid control routes are routinely surveyed and the sign listing updated. In addition, the District must discontinue issuing permits for special signs until all special signs reach compliance. #4 - The Federal-District Agreement references an outdated 1961 building code which does not explicitly set criteria for size, lighting and spacing of off-premise commercial signs as required by the HBA. DDOT has expressed their desire to negotiate with FHWA to amend the agreement in order to be in compliance. #5 - The District has not developed sufficient local procedures to accomplish HBA requirements. Currently the District is utilizing resources from several different departments to achieve outdoor advertising control. In order for the District to come into compliance, DDOT must develop a written process outlining how the OAC program is administered and the separation of duties in a chapter of DDOT’s Right-of-Way Procedural Manual. In addition, DDOT must submit these procedures to FHWA for federal approval before the procedures are published.

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Background President Lyndon B. Johnson signed the Highway Beautification Act (HBA), Public Law 89-285, on October 22, 1965. The first section of the law sets forth the basic program objectives:

―The erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty.‖ (Appendix A)

The HBA regulations are located in 23 CFR 750. (Appendix B) Both the HBA and the federal regulations required the District to sign an agreement with the federal government specifying sign standards in their jurisdiction. The District of Columbia entered into this agreement with the U.S. Secretary of Transportation on September 7, 1967 and agreed to effectively control Outdoor Advertising. Within Section III of the Agreement, the District agreed to the following:

―The DISTRICT hereby agrees that, in all areas within the scope of this Agreement, the District shall effectively control or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays, and devices in accordance with the provisions of Chapter 14 of the Building Code of the District of Columbia as in effect on the date first hereinafter mentioned.‖ (Appendix C)

Is the District effectively controlling outdoor advertising signs as they agreed? In order for any DOT to effectively control outdoor advertising signs, the DOT must first develop a written process outlining how the OAC program is administered and make it a part of their procedure manual. However, as of 2009, DDOT failed develop an outdoor advertising chapter within their Right of Way Manual. DDOT had expressed their desire to write this chapter as well as amend the Federal-District Agreement. Since amending the agreement can be a length process in itself, FHWA provided conditional concurrence to DDOT’s R/W Manual certification, with the exception of the outdoor advertising chapter with the understanding that the Outdoor advertising Chapter would be forthcoming. (Appendix P) More than two years have passed since the Manual certification. FHWA has actively pursued the goal of bringing DDOT’s OAC program into compliance. The following are events that have transpired prior to initiating this program review.

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June 23, 2009 - FHWA met with DDOT and shared their concerns about the lack of effective OA control in DC. July 1, 2009 - FHWA followed up by an email to DDOT stressing the need for an inventory of existing signs adjacent to control routes and provided a map of Federal-aid control routes. (Appendix E). June, 2010 - DDOT completed a listing of existing signs within the federal-aid control area. The listing identified 72 signs, 32 of which were identified as ―special signs‖. (Appendices L, M) November 4, 2010 - FHWA shared with DDOT a couple of major concerns about DDOT’s OAC program and requested their assistance. (Appendix F) March 4, 2011 - FHWA received a response from DDOT whereby DDOT expressed their desire to bring the District into compliance with the HBA. (Appendix G) April 19, 2011 - FHWA responded and provided a list of recommended action items in order to achieve compliance. (Appendix H) Two years have passed since the approval of the R/W Manual, and DDOT has not provided any evidence to FHWA that any of the illegal signs have been removed. Rather, additional illegal signs are appearing on federal aid routes. So, FHWA initiated this formal review to determine specific areas of improvement and to document necessary actions to be taken by DDOT to bring the OAC program into compliance. At the November 9, 2011, kick-off meeting for this program review with DDOT and DCRA, FHWA described the ensuing site review and report, and DDOT and DCRA attendees were invited to join FHWA on the field review; however, they did not participate.

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Purpose and Objective

The purpose of this program review is to determine if DDOT’s outdoor advertising control program is in compliance with federal requirements. If compliance has not been accomplished, this report will provide resolutions to achieve that goal. Furthermore, resolutions from this report will assist DDOT in amending the Federal-District agreement and writing an outdoor advertising chapter in DDOT Right-of-Way Manual. This review attempts to answer the following five objectives: Objective 1 – Are DDOT’s ―special signs‖ in compliance with federal requirements? Objective 2 – Are DDOT’s local sign laws/regulations in compliance with federal

requirements? Objective 3 – Are DDOT’s sign inventory (listing) and surveillance program in

compliance with federal requirements? Objective 4 – Does the Federal-District Agreement specify size, spacing and lighting

sign standards as required by the HBA? Objective 5 – Does DDOT have an outdoor advertising chapter outlining the process

and procedures for effectively controlling outdoor advertising in DC?

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Scope and Methodology Prior to performing a field review of off-premise outdoor advertising signs adjacent to federally control routes, the team investigated federal and local laws pertaining to outdoor advertising and met with DDOT and DCRA to determine current processes and procedures including the role of DCRA in issuing permits, providing surveillance and removal of illegal signs. Next a field review was conducted to observe and document off-premise outdoor advertising signs and ―special signs‖ displayed within the federal-aid control area. The team drove pre-selected federal-aid controlled routes. For a listing of these routes see Appendix J. The information gathered from the field review was compared to a sign listing (inventory) supplied by DDOT prior to the review. Also, the information gathered from the field review was compared to the current Federal/District agreement and the HBA law and federal regulations including 23 CFR 750.705 ―effective control‖. (Appendices A, B, C) The Review team consisted of FHWA DC Division staff and FHWA Headquarters staff.

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Team Members

Clifford Pearson FHWA, DC Division Realty Specialist (Review Team Leader)

Rosemary Jones FHWA, DC Division Realty Officer

Catherine O’Hara FHWA, HEPR Realty Specialist (OAC) Real Estate Services

Mary Jane Daluge FHWA, HEPR Realty Specialist (OAC) Real Estate Services

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Observations and Resolutions

Observation #1 – Special Signs DDOT’s special signs are not in compliance with the HBA or the Federal-District Agreement. This review observed 11 illegal ―special signs‖ which were larger than 1200 sf. A list of these 11 signs is provided in Appendix K. The 1967 Federal District Agreement does not make allowances for the current off- premise ―special signs‖ or make allowances for their size. Since DDOT has expressed their desire to amend this agreement, FHWA is willing to make allowances for special signs. FHWA would be willing to allow these signs to remain with the understanding that a sign must not exceed 1200 sf. This will place the District more in line with other states which allow OA signs up to 1200 sf. Signs over 1200 sf will need to be removed. If DDOT fails to amend their Federal-District agreement, all off-premise commercial signs within the Federal-aid control area must be removed. Compliance Issues: a) 23 USC 131(r) Removal of illegal signs – ―(1) By owners – Any sign, display, or

device along the Interstate System or the Federal-aid primary system which was not lawfully erected, shall be removed by the owner of such sign, display, or device not later than the 90th day following the effective date of this subsection.‖ [Appendix A]

b) 23 CFR 750.705 (i) the District ―must: cause the prompt removal‖ of ―illegally erected or maintained signs shortly after such occurrence‖. (Appendix B).

Resolution: a) DDOT must cause the prompt removal of all 11 off-premise commercial signs

exceeding 1200 sf. as identified in Appendix K. DDOT is to submit a copy of the removal notice to FHWA within 90 days of this final report.

b) A follow-up FHWA review will be planned in order to verify the removal of these signs.

c) After the amendment of the Federal-District agreement is finalized, all signs must comply with the amended agreement.

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Observation #2 - DC Laws and Regulations The District laws and regulations are not in compliance with federal requirements. The current laws and regulations were not developed to assist in the effective control of outdoor advertising signs on federal control routes. Rather the current law allows gigantic special signs, double the allowable size. Also, the District regulations and enforcement procedures have not been submitted to FHWA for approval. Compliance Issues: a) 23 CFR 750.705 under Effective Control, the District must: (h) ―develop laws,

regulations and procedures to accomplish the requirements of this subpart‖. (Appendix B)

b) 23 CFR 750.705 under Effective Control, the District must: (j) “Submit regulations and enforcement procedures to FHWA for approval. (Appendix B)

Resolution: a) DDOT will continue to use its work group to develop District laws to comply with the

HBA, the CFR regulations, and the Federal-District agreement. b) DDOT must submit regulations and enforcement procedures affecting the HBA to

FHWA for approval. Observation #3 – Sign Inventory and Surveillance DDOT’s sign inventory (listing) and surveillance program is not in compliance with federal requirements. FHWA prefers to refer to this document as a sign listing rather than an inventory since the document is a snap shot in time and cannot be revised as signs are added, removed or changed to another location. In addition, the status of the signs does not consider the HBA and the Federal-District agreement. DDOT’s last sign listing of June 2010 is outdated since it’s over a year old and does not reflect a current list. The review team discovered three additional signs that were not listed on the last sign listing which supports the need for periodical surveillance in order to update the list. (See Appendix L) Compliance Issues: a) 23 CFR 750.705(a) and (b) under Effective Control, the District ―must: (a) prohibit

the erection of new signs‖ and (b) ―assure that signs erected…comply at a minimum, with size, lighting and spacing criteria contained in the agreement between the Secretary and the State‖. (Appendix B)

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b) 23 CFR 750.705 (i), the District ―must: establish enforcement procedures sufficient to discover illegally erected or maintained signs shortly after such occurrence and cause their prompt removal.‖ (Appendix B)

Resolutions:

a) DDOT is to develop a sign inventory system whereby signs are classified according to HBA requirements (not current city codes) and the system has the ability to incorporate changes as signs are permitted, removed, altered, discovered, etc.

b) DDOT is to provide copies of all 72 permits associated with the June 2010 sign

listing (including 32 ―special signs‖).

c) DDOT is to develop surveillance procedures, including specific timelines, to ensure all federal-aid control routes are routinely surveyed and the sign listing updated.

d) DDOT must cease approving sign permits for any new, renewal or modifications to

special signs on federal-aid control routes until all special signs reach compliance with the Federal-District Agreement. (Appendix I cites the District’s current moratorium on special signs.)

Observation #4 - Amend the Federal-District Agreement The Federal-District Agreement does not specify size, spacing and lighting sign standards as required by the HBA. The current Federal-District agreement references an outdated 1961 building code and does not set criteria for size, lighting and spacing of off-premise commercial signs. Compliance Issue: 23 CFR 750.706(a) states: ―The state by law or regulation shall, in conformity with its agreement with the secretary, set criteria for size, lighting and spacing of outdoor advertising signs located in commercial or industrial zoned or unzoned areas, as defined in the agreement, adjacent to Interstate and federal-aid primary highways.‖ (Appendix B). Resolution: Should the District intend to permit off-premise commercial signs, DDOT must submit a modification proposal in writing to FHWA citing size, lighting and spacing requirements for off-premise commercial signs. Information on the process to amend a Federal/State agreement is provided as Appendix O. DDOT is to submit the modification proposal within 90 days of this report.

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Observation #5 - Development of written OAC Procedures DDOT has not developed an outdoor advertising chapter outlining the process and procedures for effectively controlling outdoor advertising in DC. Currently the District is utilizing resources from several different Departments including DCRA, DDOT and DPW (Department of Public Works) to achieve outdoor advertising control. Compliance Issue: a) 23 CFR 750.705 Effective Control (h) states the district ―must: develop laws

regulations and procedures to accomplish the requirements of this subpart‖ (underline added) (Appendix B)

b) 23 CFR 750.705(j) the district ―must: Submit regulations and enforcement procedures to FHWA for approval.‖ (Appendix B)

Resolutions: a) DDOT must develop a written process outlining how the OAC program is

administered and the separation of duties in a chapter of DDOT’s Right-of-Way Procedural Manual.

b) FHWA offers to supply resources needed for training and technical assistance in order to develop this chapter.

c) DDOT must submit procedures to FHWA, by means of an Outdoor Advertising chapter in the Right of Way Manual, for federal approval before the procedures are published.

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Successful Practices

DDOT is currently implementing the following successful practices. These practices are organized by the issue they work towards correcting.

Amending District Regulations: DDOT is currently in the process of reviewing and amending their local sign regulations. (Appendix I)

Amending District Regulations: DDOT indicated they are in the process of updating the DCMR with a signage chapter which all DC regulating agencies must follow.

Amending Federal-District Agreement: A multi-agency Working Group has been assigned by Mayor Gray to make recommendations for signage. (Appendix N)

Amending Federal-District Agreement: DDOT indicated that they are going to submit their proposed size, spacing and lighting criterion through the DC task force already under-way.

Inventory/Surveillance: Of the 32 special signs reviewed in November 2011, only three were in different locations from the previous June 2010 listing. (Appendix L)

Inventory/Surveillance: DDOT has indicated that they are in the scoping process for an agreement that would allow for annual sign surveillance.

Inventory: A DCRA website published an updated Special Sign Location map in December 2011. (Appendix D)

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Conclusion This review has concluded that DDOT’s outdoor advertising control program is not in compliance with federal requirements. Resolutions have been provided to help DDOT bring this program into compliance. In an effort to assist DDOT to this end, FHWA is committed to working with DDOT to identify reasonable timelines for milestones related to the Federal-District agreement revision process. FHWA is also committed to expending necessary resources associated with training and technical assistance in order to ensure that the federal oversight role is thoroughly understood and provisions involved with the HBA are met and effective control is accomplished. FHWA and DDOT is reminded of the seriousness of bringing this program into compliance—if effective control is not reached, 23 USC 131 section b mandated federal highway apportioned funding to DDOT ―shall be reduced by amounts equal to 10 per centum of the amounts which would otherwise be apportioned to such State under section 104 of this title, until such time as such State shall provide for such effective control‖. In addition, DDOT risks losing federal funding on particular routes or projects if effective control is not reached.

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Action Plan

The District is expected to submit for approval an action plan to FHWA DC Division within 30 days after receipt of this final report. This action plan must identify the following:

Reasonable and accurate completion dates in which each of the five (5) resolutions will be completed.

Method and timeline for the removal of all illegal signs. (within 90 days)

Strategies to implement steps of the resolutions and the corresponding oversight program.

Resources and staff needed to carry out these actions. (District management should ensure that proper resources and staff are dedicated to implementing the plan.)

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Appendices

A) 23 USC 131 (HBA Law)

B) 23 CFR Part 750 (HBA Regulation)

C) 1967 Federal-District Agreement (including 1961 Building Codes)

D) Federal-aid control routes, Washington, DC (Including Downtown)

E) Email Dated: July 1, 2009

F) FHWA letter to DDOT Dated: November 4, 2010

G) DDOT Response to Nov, 2010 FHWA Letter Dated: March 4, 2011

H) FHWA Sign Removal Request Dated: April 19, 2011

I) DCMR Special Sign Codes & Supplement Dated 2008 & Moratorium Letter

J) Review Team Routes Surveyed Dated: November 16-17, 2011

K) Eleven (11) subject signs exceeding 1200 Sf.

L) Review Team noted three (3) signs absent from June 2011 listing

M) 32 Special Signs surveyed by the review team on November, 2011

N) DC Mayor Ordered Working Group Dated: October 31, 2011

O) Process and Timeline to Amend Federal/State (District) Agreement

P) Right of Way Manual Certification letter

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Report prepared by:

FHWA Washington, DC

Division Office

1990 K Street, Suite 510

Washington, DC 20006-1103

Phone: 202-219-3519

FAX: 202-219-3545

For additional copies of this report, contact us.