W. Va. Code R. § 157-6-2 - Definitions

2.1. "Abandoned salvage yard" means any unlicensed salvage yard or any salvage yard that was previously licensed but upon which the license has not been renewed for more than one year.

2.2. "Authorization number" means the unique, seven-character number assigned for cost accounting purposes to a specific highway project. This number is only assigned upon review and acceptance of the project by Division of Highways management.

2.3. "Back to back sign" means any sign constructed on a single set of supports with two sign facings in opposite directions each of which may have up to two sign faces visible.

2.4. "Changeable message signs (CMS)" means an outdoor advertising sign, display, or device which changes the message or copy on the sign by means of electronic rotation of panels or slats, or by LED, OLED or other illuminated message center. CMSs are considered outdoor advertising signs and must comply with all requirements applicable to outdoor advertising signs.

2.4.a. An off-premises CMS may not include, moving video or scrolling messages. Off-premises CMS must comply with all requirements for off-premises signs generally.

2.4.b. An on-premises CMS may scroll or change message content but may not contain flashing images. On-premises CMS must comply with all requirements for on-premises signs generally.

2.4.c. No CMS sign, display or device, whether on-premises or off-premises, may be illuminated by any rapid flashing intermittent light or lights.

2.5. "Commissioner" means the Commissioner of the West Virginia Department of Transportation, Division of Highways.

2.6. "Contiguous" means lots, parcels, municipal boundaries, or county boundaries that are next to, abutting and having a boundary, or portion thereof, that is coterminous. Streets, highways, roads or other traffic or utility easements, streams, rivers, and other natural topography are not to be used to determine lots, parcels, municipal boundaries, or county boundaries as contiguous.

2.7. "Control area" means that area within 660 feet of the nearest edge of the right of way of interstate or federal-aid primary highways and visible from the main-traveled way of the interstate or federal-aid primary highway. The distance is measured from the outer edge of the right of way in a straight line.

2.8. "Controlled-access highway" means any state highway or portion thereof which, for purposes of federal-aid funding, has been designated a federal-aid primary highway and further has been designated a controlled-access highway pursuant to the authority vested in the Commissioner in W. Va. Code §§ 17-4-39, 40 and 41.

2.9. "Cutouts and extensions" mean structural additions or deletions to a sign face area.

2.10. "Defense highway" means those highway routes, designated by the Division of Highways, which might reasonably be used for important defense shipments, movements of troops or military hardware and/or supplies, or for the evacuation of the general public from disaster areas.

2.11. "Destroyed" or "Damaged" means fifty percent (50%) or more of the sign structure and sign face have been visibly separated, broken, or apart from the remaining sign structure.

2.12. "Device" means any card, cloth, paper, metal or wooden advertising emblem or sign of any kind or character, which is posted, stuck, glued, tacked, nailed, painted, or otherwise fastened or affixed to or upon any fence, post, tree or thing other than an advertising sign or structure.

2.13. "Division" means the West Virginia Department of Transportation, Division of Highways.

2.14. "Display" means any poster, bill, printing, writing, drawing, painting, or advertising material of any kind or character whatsoever, designed and intended to draw the attention of the public to any goods, merchandise, property, real or personal, business service, entertainment or amusement, produced, bought, sold, conducted, furnished, or dealt in by any person, which is placed, posted, painted, tacked, nailed, glued or otherwise affixed or fastened to any advertising sign or structure, or otherwise displayed outdoors.

2.15. "Expressway" means any road serving major intrastate and interstate travel, including federal interstate routes.

2.16. "Farm" means a tract or contiguous tracts of land used for agriculture, horticulture, or grazing.

2.17. "Federal-aid primary highway" means any highway which, for federal-aid funding purposes, has been designated or classified or redesignated or reclassified as a federal-aid primary highway.

2.18. "Feeder" means any road serving community-to-community travel and/or any road which collects and feeds traffic to one of the higher road systems (expressway and trunkline).

2.19. "Fence" means an enclosure, barrier or screen constructed of materials or consisting of plantings, natural objects or other appropriate means approved by the Commissioner and located, placed, or maintained so as to effectively screen at all times salvage yards and the salvage therein contained from the view of persons passing upon the public roads of this State.

2.20. "Focal Point" means the location from which an LED, OLED or other illuminated message center, display or sign appears brightest.

2.21. "Interchange" means a system of interconnecting roadways in conjunction with one or more grade separations that provides for the movement of traffic between two or more roadways or highways on different levels.

2.22. "Interstate highway" means that portion of the system of highways in West Virginia which, for federal-aid funding purposes, has been designated or classified or redesignated or reclassified as interstate highway and which is classified as an expressway under the provisions of W. Va. Code § 17-4-2.

2.23. "Intervening building, structure or roadway" means a building, overhead structure, or roadway which is located in such a manner that from any point along the highway, it obscures all signs, displays and devices on the same side of the highway within the minimum spacing distances set forth in subsection 7.8 of this rule. Only roads, streets, and highways that enter directly into the main traveled way of the highway system being considered will be regarded as intervening roadways.

2.24. "Legible" means capable of being read or understood without visual aid by a person of normal visual acuity while traveling in an ordinary passenger car on any public road at the applicable speed limit.

2.25. "Main traveled way" means the traveled way of a highway on which through traffic is carried. In the case of a divided highway, the traveled way of each of the separate roadways for traffic in opposite directions is a main-traveled way. It does not include such facilities as frontage roads, turning roadways, or parking areas.

2.26. "Nonconforming sign" means a sign which was lawfully erected but which does not comply with the current provisions of state law or which fails to comply with state law or rules because of changed conditions at the site.

2.27. "Occupied private residence" means a private residence which is occupied for at least six months each year.

2.28. "On-premises sign" means those signs that advertise the sale or lease of, or activities being conducted upon, the real property where the signs are located.

2.29. "Outdoor advertising sign" means any sign structure or combination of sign structure or message in the form of outdoor sign, display, device, figure, painting, drawing, message, plaque, poster, billboard, advertising structure, advertisement, logo, symbol or other form which is designed, intended or used to advertise or inform, any part of the message or informative contents of which is visible from the main traveled way. The term does not include official traffic control signs, official markers, or specific information panels erected, caused to be erected, or approved by the Division.

2.30. "Owner or operator" means an individual, firm, partnership, association or corporation or the plural thereof who owns land, a business, an advertising sign, an overhead structure, a roadway obstruction, a roadside memorial marker, etc., as it may relate to the provisions of this rule.

2.31. "Permanent memorials" means items such as plaques, stone monuments and etc., which are typically self-supported, intended to last many years and require a more significant installation or mounting process.

2.32. "Person" means an individual, partnership, association, or corporation.

2.33. "Removed" means the dismantling and complete removal from the view of the motoring public of all parts and materials of a sign or sign structure to include but not be limited to faces, and beams, poles, braces, stringers, guys, and struts which are used or intended to be used to support or display a sign.

2.34. "Residential community" means an area wherein five or more occupied private residences are located within any one thousand feet radius.

2.35. "Road; public road; highway" as defined in W. Va. Code § 17-1-3 means but is not limited to, the right of way, roadbed and all necessary culverts, sluices, drains, ditches, waterways, embankments, slopes, retaining walls, bridges, tunnels, and viaducts necessary for the maintenance of travel, dispatch of freight and communication between individuals and communities; and these public roads or highways include any road to which the public has access and which it is not denied the right to use, or any road or way leading from any other public road over the land of another person, and which shall have been established pursuant to law.

2.36. "Roadside memorials" means any of the various kinds of tributes, typically ornamental, placed alongside the roadway to memorialize people who have died as a result of vehicular accidents. Roadside memorials include and are limited to temporary memorials, permanent memorials, and roadside memorial signs.

2.37. "Roadside memorial signs" means official signs, provided and placed by the Division of Highways, installed at or near the site where a fatal motor vehicle accident occurred considering available space and other constraints, and of a design approved by the Commissioner.

2.38. "Salvage" means old or scrap copper, brass, rope, rags, batteries, paper, rubber, trash, waste, junked, dismantled, or wrecked machinery, machines or motor vehicles, or any parts of any junked, dismantled or wrecked machinery, machines or motor vehicles, iron, steel and other old or scrap ferrous or non-ferrous materials.

2.39. "Salvage yard" means any place which is maintained, operated, or used for the storing, keeping, buying, selling, or processing of salvage, or for the operation and maintenance of a motor vehicle graveyard. Any collection of three or more automobile hulks, or combination of ferrous or non-ferrous materials together with one or more automobile hulks, or a collection of any salvage contained in an area more than one-quarter acre in size is a salvage yard.

2.40. "Save harmless" means an agreement by any person, firm, corporation, or other entity to whom a permit is issued or with whom the Division enters into an agreement or contract not to hold the State, the Commissioner, or any officers, agents, and employees of the Division responsible or liable for any damages to persons or property arising or resulting from work performed under the permit, contract or agreement.

2.41. "Scenic byways and backways" mean road segments that have been officially designated by the Secretary of the West Virginia Department of Transportation under the West Virginia Byway and Backway Program.

2.42. "Sham activity" means any activity located or created to qualify an area as an unzoned location for outdoor advertising.

2.43. "Sign" means any structure erected for advertising purposes upon which any poster, bill, printing, writing, drawing, painting, or advertising material of any kind or character whatsoever, may be placed, posted, painted, tacked, nailed, glued, or otherwise fastened, affixed, or displayed.

2.44. "Sign face" means the part of the sign, including stringers, cutouts, and extensions, which contains the message or informative contents and is distinguished from other parts of the sign and other sign faces by borders or decorative trim. It does not include lighting fixtures, aprons, and catwalks unless part of the message or informative contents of the sign is displayed thereon.

2.45. "Sign structure" means all the interrelated parts and material, such as beams, poles, and braces, which are used or designed to be used or are intended to be used to support or display a sign but does not include sign face.

2.46. "Small parcels or narrow strips" means any configuration of land which cannot be put to ordinary commercial or industrial use without being aggregated with abutting properties.

2.47. "Transient or temporary businesses" means businesses that fail to meet any of the following requirements:

2.47.a. Continuous business operations at the proposed sign location for one (1) year prior to the submission of an outdoor advertising permit application;

2.47.b. Electricity, published telephone number and telephone answered at the business, running water, indoor restroom, permanent flooring other than dirt, gravel, sand, etc., adequate heating;

2.47.c. The business activity, or a major portion of it, conducted from a permanent building constructed principally of brick, concrete block, stone, concrete, metal, or wood or some combination of these materials or from a mobile home or trailer meeting the requirements stated in subdivision 2.4 of this rule;

2.47.d. Transient or temporary businesses include commercial or industrial businesses that do not conduct significant business activities at the site.

2.48. "Temporary memorials" means the various types of decorations, flags, flowers (cut and artificial) and other lightweight objects or ornamentation commonly used at funerals or at gravesides as a tribute to the dead.

2.49. "Trunkline" means any road serving major city-to-city travel needs.

2.50. "Unzoned commercial or industrial areas," means those areas in a political subdivision which are not zoned on which there is located one or more separate businesses, each with a permanent building structure, devoted to a commercial or industrial activity, a portion of which activity is located within the control area. The unzoned commercial or industrial area is that area within 800 feet of the nearest edge of the area of business activity within the control area regularly used for the business activity.

2.50.a. With regard to sign permits for which the application was received prior to January 1, 2004, the term "unzoned commercial or industrial area" means an area not zoned by State or local law, regulation or ordinances on which there is located one or more viable commercial or industrial activities and the area along the highway extending outward 800 feet from and beyond the edge of such activity.

2.50.b. Unzoned commercial or industrial areas do not include the land on the opposite side of the highway from the unzoned commercial or industrial business activities except that on two-lane non-controlled access highways, the unzoned commercial or industrial area may be located on the opposite side of the highway from the commercial or industrial activity if, in the opinion of the Commissioner, the topographical conditions on the same side of the highway as the activity are such that it is not reasonably usable; provided that the land on the opposite side of the highway has not been designated scenic by the Commissioner.

2.50.c. In no instance may the unzoned commercial or industrial area established by a single activity include land on both sides of the highway.

2.50.d. With regard to sign permits, for which the application was received after December 31, 2003, a location must meet the following requirements to qualify as an unzoned commercial or industrial area:

2.50.d.1. One (1) or more businesses must have been opened to the public for more than one (1) year prior to submission of an outdoor advertising permit application;

2.50.d.2. The business must be visible from the main traveled way of Federal-Aid Interstate Highways or Controlled Routes from which the outdoor advertising sign is visible;

2.50.d.3. Each business must be directly accessible to an ordinary passenger vehicle year-round under normal weather conditions by a road, driveway, or entranceway;

2.50.d.4. Each business must have a building designed with a permanent foundation, built or modified for its current commercial or industrial use, and the building must be located within 660 feet from the nearest edge of the main traveled way. Where a mobile home or recreational vehicle is used as a business or office, the following conditions and requirements also apply:

2.50.d.4.A. The mobile home unit or recreational vehicle must meet all applicable Building Codes for commercial or business use;

2.50.d.4.B. All wheels, axles, and springs must be removed;

2.50.d.4.C. The vehicle must be permanently secured on piers, pad or foundation;

2.50.d.4.D. The vehicle must be tied down in accordance with local, state, or county requirements.

2.50.d.4.E. A self-propelled vehicle will not qualify for use as a business or office.

2.50.d.5. Each business must be operated a minimum of 25 hours per week and open to the public during times that are normal and customary for that type of activity in the same or similar communities a minimum of 24 hours per week;

2.50.d.6. One or more employees must be available to serve customers whenever the business is open to the public;

2.50.d.7. Each business must be visible and recognizable as commercial or industrial from the main traveled way. A business is visible when that portion on which the permanent building designed, built, or modified for its current commercial use can be clearly seen year-round during normal weather by a person of normal visual acuity while traveling at the posted speed on the main traveled way adjacent to the business.

2.50.e. Each business must have a current business registration certificate issued by the West Virginia Department of Tax and Revenue;

2.50.f. With regard to sign permits for which the application was received prior to January 1, 2004, the business must have had a public access road and the following in order to have qualified for a sign permit:

2.50.f.1. An identification sign for the business which conforms to the provisions of this rule concerning an on premises sign;

2.50.f.2. A posting of the business operating hours;

2.50.f.3. A capacity to provide ample parking for all customers;

2.50.f.4. A separately metered electrical service provided by the local power company that cannot be an extension from any other building;

2.50.g. With regard to sign permits for which the application was received prior to January 1, 2004, the business used to qualify the permit location must have operated for six (6) months prior to the date of the permit application.

2.50.h. None of the following qualify as a commercial or industrial activity:

2.50.h.1. Outdoor advertising structures.

2.50.h.2. Agricultural, forestry, grazing, farming, or other related activities, including, but not limited to wayside produce stands.

2.50.h.3. Activities conducted in a building or structure principally used as a residence.

2.50.h.4. Railroad tracks or minor sidings.

2.50.h.5. Activities more than 660 feet from the main traveled way.

2.50.h.6. Activities of transient or temporary businesses.

2.50.h.7. Any commercial or industrial activity upon which the permit application is based which is operated primarily to serve as the basis for an outdoor advertising permit.

2.50.h.8. Any other commercial or industrial activity which the Commissioner finds is not meaningful commercial or industrial activity.

2.50.i. With regard to sign permits for which the application was received prior to January 1, 2004, "part time commercial or industrial activity" means any commercial or industrial activity operated for less than twenty-five (25) hours per week and open to the general public less than twenty-four (24) hours per week.

2.50.j. With regard to sign permits, for which the application was received after December 31, 2003, none of the following qualify as commercial or industrial activity:

2.50.j.1. Recreational facilities such as campgrounds, golf courses (not including driving ranges) or par-three courses, tennis courts, baseball or football fields or stadiums, or racetracks, except for any portions of those facilities occupied by offices, clubhouses, etc. which meet the minimum standards to keep the business from being considered transient or temporary.

2.50.j.2. Quarries, borrow pits, or nursery lands, except for any portions of those facilities which are occupied by a permanent office located at the site which meets the minimum standards to keep the activity from being considered a transient or temporary activity.

2.50.j.3. Business not visible and recognizable as commercial or industrial from the traffic lanes of the main traveled way. A business is not visible and recognizable as commercial or industrial if the on premise or on property sign is the only part of the commercial or industrial activity that is visible from the main traveled way.

2.51. For purposes of section 8 of this rule an "unzoned industrial area" means an area within a municipality not zoned by State or local law, regulation, or ordinance.

2.51.a. A salvage yard is in an unzoned industrial area within a municipality when it is located within a radius of 1000 feet of at least one industrial activity, which is in continuing operation for at least three (3) months of the year.

2.51.b. None of the following are considered industrial activities:

2.51.b.1. Outdoor advertising structures.

2.51.b.2. Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands.

2.51.b.3. Activities normally and regularly in operation less than three (3) months of the year.

2.51.b.4. Activities of transient or temporary businesses.

2.51.b.5. Activities not visible from the traffic lanes of the main traveled way.

2.51.b.6. Activities more than 300 feet from the nearest edge of the main traveled way.

2.51.b.7. Activities conducted in a building principally used as a residence.

2.51.b.8. Railroad tracks, minor sidings, and passenger depots.

2.51.b.9. Junkyards, as defined in Section 136, Title 23, United States Code.

2.52. "Urban area" means an area including and adjacent to a municipality or other urban place having a population of 5,000 or more, as determined by the latest available federal census within boundaries to be fixed by the Division subject to the approval of the Secretary of the U.S. Department of Transportation, or his or her authorized representative.

2.53. "Visible" means capable of being seen (whether or not legible) and readily recognized as a sign or commercial or industrial activity by a person of normal visual acuity. The presence of a sign, whether attached to the building or free-standing, is not considered in determining whether a commercial or industrial activity is visible.

2.54. "Zoned" means subject to a substantial system of land use, including the regulation of size, lighting, and spacing of signs, for tracts of land within a political subdivision established and actively enforced by duly constituted zoning authorities. The mere labeling of land as zoned commercial or industrial does not mean the area is zoned for purposes of signing; rather there must be the establishment and enforcement of a substantial set of regulations to govern land use within the portion of the political subdivision which is zoned. Unrestricted land is considered unzoned.

2.55. "Zoned industrial or commercial areas" means those areas inside the control area within a political subdivision which are zoned for commercial or industrial use. Zoned industrial or commercial areas do not include any areas in which limited commercial or industrial activities are permitted as an incident to other primary land uses or areas the Division determines were so designated for the principal purpose of creating locations for outdoor advertising signs adjacent to or near interstate or federal-aid primary highways. Zoned industrial or commercial areas do not include areas which are unrestricted. No small parcels or narrow strips of land designated for a use classification different from and less restrictive than that of the surrounding area and which is made without consideration of the neighborhood land use character may be considered a zoned industrial or commercial area.

2.56. With regard to sign permits for which the application was received prior to January 1, 2004, the term "zoned commercial or industrial area" means an area zoned for business, trade, industry, or commerce, pursuant to state, county, municipal or local law, ordinance or regulation.

2.57. "Immediate family members" include father, mother, son, daughter, siblings, parents, spouse, parents-in-law, children-in-law, grandparent, grandchildren, step-parents, step-brothers, step-sisters, step-children, foster children, and individuals in a legal guardianship relationship.

Notes

W. Va. Code R. § 157-6-2