Minnesota Department of Transportation

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MnDOT Policies

Art on Trunk Highway Right of Way

MnDOT Policy OP007
View/print signed policy (PDF)

Policy statement

Federal Highway Administration (FHWA) regulations require that all real property in the right of way of federal-aid highways, including airspace, be devoted exclusively to public highway purposes. However, the FHWA Administrator may approve a non-highway use based on a determination that it is in the public interest and will not impair the highway or interfere with the free flow of traffic thereon, 23 CFR §1.23. The regulations provide that FHWA will cooperate with state and local agencies to provide opportunities to display original works of art in highway rights of way, 23 CFR §752.2(b).

Art does not directly serve a transportation purpose. An art project may possess functional as well as artistic qualities, it may be an integral part of a transportation facility or it may be a discrete stand-alone work. For purposes of this policy, art does not include aesthetic treatments that may be included in a highway project and paid for based on the MnDOT Cost Participation Policy and Manual.

The Minnesota Department of Transportation (MnDOT) will accept donations of art on trunk highway right of way in conformance with this policy. MnDOT will only consider proposals for art donations submitted by political subdivisions of the state, other state agencies or tribal governments. MnDOT will make decisions on proposals for art donations on a case-by-case basis, considering a number of criteria, such as:

  • Potential traffic safety issues
  • Potential maintenance concerns for MnDOT
  • Protection of the “clear zone” that is the unobstructed, traversable roadside area that allows a driver to stop safely, or regain control of a vehicle that has left the roadway.
  • Documented public support of the proposed project
  • Potential to enhance the roadside environment

The proposer of the art must assume full responsibility for all costs associated with art, including but not limited to design, installation, maintenance, operation (as necessary), and removal.

This policy does not apply to the following:

  • Sites not located on trunk highway right of way.
  • Aesthetic treatment of an existing or proposed transportation facility or structure beyond the basic items and features necessary to address the safety, operation and maintenance needs of a MnDOT project, and which may be included in a highway project and paid for based on the MnDOT Cost Participation Policy and Manual.
  • Memorial Markers
  • Municipal Identification Entrance Signs
  • Landscaping, except when it is an essential feature of the art and the artist’s original design.

Reason for policy

  • Establish the process for placing art within the trunk highway right of way
  • Provide a method for applicants to propose an art project
  • Provide guidance on how MnDOT will evaluate proposal for art within the trunk highway right of way
  • Identify roles and responsibilities
  • Ensure that MnDOT complies with applicable state and federal laws, such as Visual Artists Rights Act (VARA),
    17 U.S.C. §106A

Who needs to know this policy

  • Anyone involved in planning, designing, constructing or maintaining art within trunk highway right of way, including MnDOT staff, applicants, contractors, consultants, and artists
  • MnDOT staff involved in reviewing and making decisions on applications
  • MnDOT staff involved in agreement writing for the installation or maintenance of art within trunk highway right of way

Procedures

The topics in this section appear in chronological order to help employees, applicants, contractors, and consultants navigate through the process. Applicants must contact their Local MnDOT District Office to discuss the scope and details of the proposed art project for feedback and guidance prior to proceeding with the full application process.

1. Eligibility requirement and application procedures

A. Eligibility requirement

MnDOT will only accept applications submitted by political subdivisions of the state, other state agencies or tribal governments.

B. Employees must verify the completeness and accuracy of the application package

A political subdivision, state agency, or tribal government wishing to install art on an existing or proposed MnDOT trunk highway facility or structure must submit an application package to MnDOT that must include:

  • A completed Application for Art on Highway Right of Way form
  • A copy of a resolution from the applicant’s governing body (if the applicant is a political subdivision or tribal government), or a letter from the agency head (if the applicant is a state agency) stating the applicant’s official support for the art project
  • The applicant must provide a description of how it has provided an opportunity for public comment on the proposed art by those immediately impacted by it. Although the process may vary on a project-by-project basis, it must ensure that those most affected have an opportunity to express support or opposition to the proposal. The applicant will determine the method of review. The application package must include a summary of the comments received
  • A copy of a signed Waiver of Rights Pursuant to Visual Artists Rights Act form
  • A detailed plan set showing trunk highway right of way, existing and any proposed utilities, structural details prepared by a structural engineer licensed in the state of Minnesota, construction and maintenance plan
  • Proposed project description and the scope of the art form desired. Include information about the site location and community setting (context) using text, preliminary drawings, models, computer simulations, samples and other exhibit materials sufficient to communicate the design intent. Outline relationship to the transportation facility or design elements impacted by the proposed art project, as well as the degree of flexibility in the art form design to resolve highway design issues
  • Artist’s statement, include a description of the proposed art project, specifications (outline) and work plan. Outline fees, costs and other details sufficient to guarantee that the project will be within the budget, timetable and technical specifications proposed
  • Maintenance plan, maintenance contacts, and lifespan expectation of the proposed art project
  • Cost estimate and source of funding for the proposed art project
  • With respect to applications for art on proposed facilities or structures:
    • MnDOT must review design calculations by a structural engineer licensed in the state of Minnesota
    • MnDOT must receive and approve all forms, CADD drawings and other pertinent design data prior to the 30% final plan submittal for the project
  • With respect to applications for art on existing facilities or structures:
    • MnDOT must review and approve design calculations by a structural engineer licensed in the state of Minnesota
  • A detailed plan set showing any necessary improvements or repairs to MnDOT facilities or structures that may occur due the installation of the art
  • Applications must address how the proposed art relates to the site, how the art fits in the context of the community, how it is expected to respond to exposure to weather and other roadside conditions, and how it is expected to respond to anticipated MnDOT construction and maintenance activities

2. Application review and approval process

A. Criteria for approval

Each proposal for art accepted by MnDOT will be a gift donated to MnDOT. Notwithstanding any other provision of this policy, MnDOT retains the sole discretion to approve or deny any application for art. Nothing in this policy creates a public forum on any trunk highway right of way owned or managed by MnDOT. All art projects are subject to modification or termination at any time by MnDOT in its sole discretion.

Highway user safety will always be a primary consideration for any proposed art on trunk highway right of way. The following lists illustrate some key aspects of proposed projects that MnDOT will review.

Art proposals with any of the following characteristics will be rejected:

MnDOT will review art projects with any of the following characteristics on a case-by-case basis:

  • Fixed objects near the clear zone will be evaluated on a case-by-case basis
  • Attached to an historic structure
  • Potential to be a distraction to drivers
  • Creates an attractive nuisance
  • Near environmentally - sensitive areas
  • Uses or requires electrical or solar power
  • Impedes or increases the cost of infrastructure inspection and maintenance

If the proposed art is located within an Airport Influence Area (which is particular to each public airport), coordination with the Office of Aeronautics is required to identify the potential for airspace or land use impacts. Airport Influence Area Maps are available online.

B. Review and approval process

When approved, a written agreement will be required. Once approved, changes to the art application are not permissible without written approval from MnDOT.

  • Review of applications includes a number of criteria including the impact that the proposed art may have on the safety of vehicle drivers and other users of the transportation system
  • The District Engineer (or designee) will solicit comments on the application from the appropriate functional groups within the district, and may include the Office of Environmental Stewardship and the Bridge Office (when the proposed art is adjacent to or on a structure)
  • If the internal review of the application supports the request for the installation of the proposed art, the District Engineer approves the application and sends the signed application to the district contact
  • The district contact requests the preparation of a MnDOT agreement (District or Cooperative Agreements Section)
  • The district contact requests the applicant to review, sign and return the agreement to the district contact.
  • The district contact requests the District Engineer to review, sign and forward the agreement to the Contract Management Section
  • The Contract Management Section reviews, signs and forwards the agreement to the Cooperative Agreements Section to maintain the documentation in the appropriate MnDOT repository

3. Written and approved agreement prior to art installation

If MnDOT approves an application, MnDOT will enter into a written agreement with the applicant that will specify the terms of the placement of the art. MnDOT will always retain the right to terminate the agreement, or modify the art, as MnDOT deems necessary and appropriate. The Office of Chief Counsel, Contract Management Section is responsible for approving agreements. The agreement must include terms that:

  • Make the applicant responsible for all costs related to the art
  • Require the applicant to develop and implement a maintenance plan as described
  • Provide reasonable termination rights for MnDOT

4. Art ownership and the Visual Artists Rights Act

The Visual Artists Rights Act confers on the authors of works of visual art certain rights relating to attribution and integrity of the work of art.

Attribution rights include the right of the artist to claim authorship of a work and to prevent attaching to the work the name of a person who did not create the work. Rights of integrity arise when there is subsequent change, distortion, mutilation or modification of the art in such a manner to be prejudicial to the artist’s reputation. Modification or changes resulting from public presentation involving placement in the roadside environment and lighting, aging, or natural fading do not constitute change or mutilation.

Public safety and maintaining the transportation purpose of trunk highway right of way must always have priority over art on the right of way. Therefore, MnDOT retains the right to modify the art as needed. To facilitate this right, the artist must provide a signed Waiver of Rights Pursuant to Visual Artists Rights Act form.

Artist and sponsor recognition

Subject to MnDOT approval, the artist, or sponsor of the approved art may be recognized on or adjacent to the art. The applicant is responsible for the costs involved with such recognition, including maintenance and traffic control as appropriate.

5. Applicants must provide all art maintenance

The maintenance plan must include:

  • Traffic control measures for accessing the art and the responsible party for maintenance.
  • Placement in a location where the maintenance of the art by the applicant is easy and accessible as stated in the agreement. The placement of the art must allow for safe access for maintenance personnel and equipment
  • Maintenance activities must not encroach upon the clear zone area of the highway
  • Necessary snow removal measures for accessing the art and the responsible party for these duties
  • An outline of the inspection schedules along with details on how the applicant will conduct repair and restoration activities including graffiti and litter removal
  • Provisions for the inspection of free standing art at least every two years to assess the structural soundness, stability and public safety. Applicants must retain inspection records
  • Removal provisions if not maintained properly or the art has reached the end of its useful service life
Criteria for art removal or disposal, modification or change

MnDOT, in its sole discretion, reserves the right to remove art from the right of way for any reason, including but not limited to safety concerns, failure of applicant to maintain properly, deterioration, or future highway construction and maintenance activities. Regardless of the reason, the applicant is responsible for all associated costs for removal or disposal. Modification of some elements or features to avoid a safety or other hazard to the public, or to alleviate a maintenance difficulty, is not the same as a removal or disposal under this paragraph.

Forms/instructions

Application for Art on Highway Right of Way
Art Application, Review & Operation Process
Waiver of Rights Pursuant to Visual Artists Rights Act

Responsibilities

Applicant

Applicants must contact their Local MnDOT District Office to discuss the scope and details of the proposed art project for feedback and guidance prior to proceeding with the full application process.

  • Conduct and provide documentation of the public engagement for proposed art and community support for the proposed art.
  • Submit the Application for Art on Highway Right of Way form, with the supporting resolution to MnDOT in the District where the proposed art will be located
  • Provide a detailed plan set showing any necessary improvements, repairs to MnDOT facilities, or structures that may occur due the installation of the art
  • Provide a detailed traffic control plan for the initial construction or placement of the art and for subsequent maintenance activities
  • Provide the following additional required information with the application for art on proposed facilities or structures:
    • Design calculations by a structural engineer licensed in the state of Minnesota
    • All forms, CADD drawings and other pertinent design data prior to the 30% final plan submittal for the project
  • Provide the following additional information with the application for art on existing facilities or structures:
    • Design calculations by a structural engineer licensed in the state of Minnesota
    • A detailed plan set showing any necessary improvements or repairs to MnDOT facilities or structures that may occur due the installation of the art
  • The applicant must coordinate the Office of Aeronautics to identify the potential for airspace or land use impacts. Airport Influence Maps are available online
  • Install, maintain, operate, and remove art as directed by MnDOT

MnDOT District Contact

Receive the application, VARA waiver and resolution of support for ongoing maintenance, operation and future replacement or removal as needed, from the applicant.

  • Review the application for completeness
  • Request engineering feedback from appropriate MnDOT offices (for example, Offices of Bridge, Environmental Stewardship, Maintenance, and Traffic, Safety & Technology), for art on or near either existing or proposed facilities or structures
  • Identify any aspects of the proposed art that may involve public controversy and consult with the Office of Communications, the District Public Affairs staff, or other MnDOT staff as needed to address the matters of public controversy
  • Inform the applicant of the review decision (go or no-go)
  • Request the preparation of a MnDOT agreement (by or with the Cooperative Agreements Section)
  • Request the review and signature of the MnDOT agreement by the applicant
  • Submit the MnDOT agreement to the District Engineer for review and signature

MnDOT District Engineer

  • Review and sign the MnDOT agreement to place art on the highway right of way

MnDOT Office of Chief Counsel

  • Review and sign the MnDOT agreement
  • Send the signed MnDOT agreement to the Cooperative Agreements Section

MnDOT Cooperative Agreements Section

  • Prepare the draft(s) of the written agreement
  • Enter the signed agreement into the agency repository

Frequently Asked Questions

Q: Is it permissible to use MnDOT’s aesthetic funds for art on highway right of way?

A: No, the applicant for art cannot use funds intended for aesthetics on a MnDOT project.

Q: Does art constitute a Section 4(f) property?

A: Any agreement that MnDOT enters into with the applicant will expressly state not only that the parties agree that the art project does not constitute a Section 4(f) property, but also the art project is a temporary occupancy of a transportation facility. MnDOT reserves the right to require its removal whenever deemed necessary or appropriate, see 23 CFR §774.11(h).

Related information

17 U.S.C. §106A Visual Artists’ Rights Act (VARA)
23 CFR §752.2(b) Landscape and Roadside Development
23 CFR §774.11(h) Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites (Section 4(f))
Americans with Disabilities Act (1990) and ADA Amendments Act of 2008 standards and guidance
Minnesota Statutes §161.38 Special Agreements for Highways and Municipalities
Federal Transit Administration (FTA) has issued a circular outlining its policy on inclusion of art in FTA funded transit projects. The FTA will provide funding for art in transit projects, but it leaves the allocation of funds for art to the discretion of the local transit entity.
Minnesota Airport Land Use Compatibility Manual

History of policy updates or amendments

New policy

Ownership

Responsible Senior Officer

Susan M. Mulvihill, P.E.
Deputy Commissioner/Chief Engineer
sue.mulvihill@state.mn.us
651-366-4800

Policy Owners

Lynn Clarkowski, P.E.
Director, Office of Environmental Stewardship
lynn.clarkowski@state.mn.us
651-366-3602

Kevin Western, P.E.
Director, Bridge Office
kevin.western@state.mn.us
651-366-4508

Policy Contacts

Scott Robinson
Office of Environmental Stewardship
scott.robinson@state.mn.us
651-366-4671

Melissa Schultz
Bridge Office
melissa.schultz@state.mn.us
651-366-4465