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HIGHWAY RESEARCH BOARD

Special Report 41

OUTD OOR ADVERTISING ALONG HIGHWAYS

A LEGAL ANAL

RECE\IED JAN i 1959

MMt'LS uB.

<Z05911,10.

HIGHWAY RESEARCH BOARD Officers, and Members of the Executive Committee

1958

OFFICERS

C. H. SCHOLER, Chairman HARMER E. DAVIS, First Vice Chairman

PYKE JOHNSON, Second Vice Chairman

FERD BURGORAF, Director ELMER M. WAItn, Assistant Director

Executive Committee BERTRAM D.. TALLAMY, FedeaZ Highway Administrator, Bureau of Public Roads (ex officio)

A. E. JOHNSON, Executive Secretary, American Association of State Highway Official.s (ex officio)

Lows JoRDAN, Executive Secretary, Division of Engineering and Industrial Research, National Research Council (ex officio)

Rsx M. WilIrroN, Chief Engineer, Missouri State Highway Department (ex officio, Past Chairman 1957)

K. B. WOODS, Head, School of Civil Engineering, and Director, Joint Highway Research Project, Purdue University (ex officio, Past Chairman 1956)

R. R. BARTELSMEYER, Chief Highway Engineer, Illinois Division of Highways

J. E. BUCHANAN, President, The Asphalt Institute

W. A. Buoa, Director of Highways, Washington State Highway Commission

C. D. Cuiiriss, Special Assistant to the Executive Vice President, American Road Builders Association

HABMER E. DAVIS, Director, Institute of Transportation and Traffic Engineering, University of California

Duxs W. DUNBAB, Attorney General of Colorado FRANCIS. V. DU PONT, Consulting Engineer, Washington, D. C. PYKE JOHNSON, Consultant, Automotive Safety Foundation KzrrH F. JONES, County Engineer, Jefferson County, Washington

G. DONALD KENNEDY, President, Portland Cement Association BuwroN W. Masu Director, Traffic Engineering and Safety Department, American Auto-

mobile Association GLENN C. RICHARDS, Corhmissioner, Detroit Department of Public Works

C. H. SCHOLER, Head, Applied Mechanics Department, Kansas State College

Wuaua S. SMITH, Wilbur Smith and Associates, New Haven, Conn.

Editorial Staff

FRED BURGORAF ELMER M. WARD HERBERT P. ORLAND

2101 Constitution Avenue Washington 25, D. C.

The opinions and conclusioni expressed in this publication are those of the author and not necessarfly those of the Highway Research Board.

REFER F OR Acen leL

HIGHWAY RESEARCH Special Report 41 oIogist

lesiing - Engr._________ ah. Forean

Chonit - Chief Clerh

OUTDOOR ADVERTISING ALONG • HIGHWAYS

A LEGAL ANALYSIS

A Report of the Highway Laws Project

1958

Washington, D. C.

Department of Economics, Finance, and Administration

Guilford P. St. Clair, Chairman Director, Highway Cost Allocation Study

Bureau of Public Roads

Committee on Highway Laws

Louis R. Morony, Chairman Director, Laws Division

Automotive Safety Foundation

David R. Levin, Secretary Chief, Division of Highway and Land Administration,

Bureau of Public Roads

Jacob H. Beuscher, Professor of Law, School of Law, University of Wisconsin, Madison

Sherwood K. Booth, Deputy General Counsel, Bureau of Public Roads, Wash-ington, D. C.

W. A. Bugge, Director of Highways, Washington Department of Highways, Olympia

Saul C. Corwin, Counsel, New York State Department of Public Works, Albany

C. W. Enfield, General Counsel, Bureau of Public Roads, Washington, D. C. Joseph E. Havenner, Director, Engineering and Technical S.ervices, Automo-

bile Club of Southern California, Los Angeles Patrick Healy, Jr., Executive Director, American Municipal Association,

Washington, D. C. Robert L. Hyder, Chief Counsel, Missouri State Highway Department, Jeffer-

son City Roy E. Jorgensen, Engineering Counsel, National Highway Users Conference,

Washington, D. C. Leonard I. Lindas, Chief Counsel, Oregon State Highway Department, Salem Mason J. Mahin, Assistant Director, Laws Division, Automotive Safety

Foundation, Washington, D. C. W. Crosby Pegues, Jr., General Counsel, Louisiana Department of Highways,

Baton Rouge LeRoy A. Powers, Chief Counsel, Oklahoma Department of Highways, Okla-

homa City Robert E. Reed, Chief, Division of Contracts and Right-of-Way, California

Department of Public Works, Sacramento John R. Rezzola, Chief Highway Counsel, Pennsylvania Department of High-

ways, Harrisburg Kermit B. Rykken, Director, Highway and Legislative Department, American

Automobile Association, Washington, D. C. Keith L. Seegmiller, General Counsel, National Association of County Officials,

Washington, D. C. Archie Smith, Assistant Attorney General of Rhode Island, Providence Joseph A. Sullivan, Judge, Detroit, Michigan William F. Tempest, Secretary, Municipal Law Section, American Bar Asso-

ciation, Chicago

Legal Liaison Representatives in State Highway Departments

A. Reese Harvey, Office Engineer, Alabama State Highway Department, Montgomery Harmon Puckett, Special Counsel, Arizona State Highway Department, Phoenix W. R. Thrasher, Chief Counsel—Legal and Right-of-Way, Arkansas State Highway Department, Little

Rock Robert E. Reed, Chief, Division of Contracts and Right-of-Way, California Department of Public

Works, Sacramento George L. Zoellner, Attorney, Colorado Department of Highways, Denver Adam S. Knurek, Administrative Advisor, Connecticut State Highway Department, Hartford S. Samuel Arsht. General Counsel, Delaware State Highway Department, Wilmington Ross H. Stanton, Jr., Resident Attorney, Florida State Road Department, Tallahassee Paul Miller, Assistant Attorney General, Georgia State Highway Department, Atlanta William Padgett, Assistant Attorney General. Idaho Department of Highways, Boise L. A. Murphy, Engineer of Location and Right-of-Way, Illinois Division of Highways, Springfield Edwin J. Steers, Attorney General, Indianapolis, Indiana C. J. Lyman, Special Assistant Attorney General, Iowa State Highway Commission, Ames William B. Kirkpatrick, Chief Attorney, Kansas State Highway Commission, Topeka Astor Hogg, Assistant Attorney General, Kentucky Department of Highways, Frankfort W. Crosby Pegues, Jr.. General Counsel, Louisiana Department of Highways, Baton Rouge L. Smith Dunnack, Assistant Attorney General, Maine State Highway Commission, Augusta Joseph D. Buscher, Special Assistant Attorney General, Baltimore, Md. P. F. Cox, Deputy Chief Engineer, Massachusetts Department of Public Works, Boston Edward J. Kremer, Assistant Attorney General, Michigan State Highway Department, Lansing Robert W. Mattson, Deputy Attorney General, Minnesota State Highway Department, St. Paul Ward Gronfield, Special Counsel, Highway Laws Commission, St. Paul, Minnesota Matthew Harper, Jr., Assistant Attorney General, Mississippi State Highway Department, Jackson Robert L. Hyder, Chief Counsel, Missouri State Highway Commission, Jefferson City Paul T. Keller, Attorney, Montana State Highway Commission, Helena H. S. Salter, Attorney, Nebraska Department of Roads, Lincoln William Freedman, Jr., Legal Counsel, Nevada Department of Highways, Carson City Jarlath M. Slattery, Assistant Attorney General, Concord, New Hampshire William J. McCormack, Deputy Attorney General, New Jersey State Highway Department, Trenton John T. Watson, Assistant Attorney General, New Mexico State Highway Commission, Santa Fe Saul C. Corwin, Counsel, New York Department of Public Works, Albany Kenneth Wooten, Jr., Assistant Attorney General, North Carolina State Highway Division, Raleigh Vernon R. Pederson, General Counsel, North Dakota State Highway Department, Bismarck Fred C. Reiners, Deputy Director of Administration, Ohio Department of Highways, Columbus LeRoy Powers, Attorney, Oklahoma Department of Highways, Oklahoma City Leonard I. Lindas, Chief Counsel, Oregon State Highway Department, Salem John R. Rezzolla, Jr., Chief Highway Counsel, Pennsylvania Department of Highways, Harrisburg Russell King, Engineer, Rhode Island Department of Public Works, Providence T. C. Callison, Attorney General, Columbia, South Carolina Walter Mueller, Assistant Attorney General, Pierre, South Dakota 0. L. Peeler, Right-of-Way Engineer-Attorney, Tennessee Department of Highways and Public Works,

Nashville R. J. Hank, Administrative Engineer, Texas State Highway Department, Austin Boyd M. Fullmer, Claims and Agreements Officer, Utah State Road Commission, Salt Lake City John D. Paterson, Staff Attorney, Vermont Department of Highways, Montpeiier Francis C. Lee, Assistant Attorney General, Virginia Department of Highways, Richmond Delbert W. Johnson, Attorney, Washington State Highway Commission, Olympia B. D. Horan, Director, Legal and Right-of-Way Division, West Virginia State Road Commission,

Charleston Richard E. Barrett, Assistant Attorney General, Wisconsin State Highway Commission, Madison Robert Duncan, Special Assistant Attorney General, Wyoming State Highway Department, Cheyenne Oscar P. Mast, Assistant Corporation Counsel, Washington. D. C. Freclerico Rodriguez Gelpi, Director, Office of Legal Affairs, Puerto Rico Department of Public Works,

PREFACE

The Committee on Highway Laws of the Highway Research Board is carrying forward its efforts to assemble and evaluate highway law, in order to assist highway officials to modernize the highway system.

Because its task is such a huge one, priorities have had to be set by the Committee. The Fbderal-Aid Highway Act of 1958 designated a national policy on outdoor advertising along highways, for the first time, and directed that national standards be set up by the Secretary of Commerce to carry out the policy in those States that elected to enter into agreements involving these matters. Highway officials immediately are asking: To what extent does existing State law meet the Federal standards on out-door advertising, and if there are deficiencies in some States, what will need to be done to enable a particular State to comply with the standards? Accordingly, State highway officials have asked the Committee to as-semble existing State law (both statutes and judicial decisions) and to evaluate them, at the earliest possible moment. This study has been made in pursuance of this request.

The highway laws staff has sought to be as completely objective in this research as is possible. The law as it exists has been reported upon, in as brief a manner as is feasible.

This report was researched and written by a team composed of Helen J. Schwartz, Alfred J. Tighe, Jr., Howard G. Feldman, Edward J. Zekas, Mary 0. Eastwood, and Karl S. Vasiloff.

HIGHWAY RESEARCH BOARD LAWS PROJECT LEGAL STAFF

MARY 0. EASTWOOD

HELEN J. SCHWARTZ

ALFRED J. TIGHE, JR.

KARL S. VASILOFF

EDWARD J. ZEKAS

TABLE OF CONTENTS

Page SUMMARY OF FINDINGS . 1

INTRODUCTION ....................................................5

PARTI

FEDERAL LEGISLATION AND THE NATiONAL STANDARDS ...................6

STATE STATUTES COMPARED WITH THE NATIONAL STANDARDS ............18

Highways to Which Statutes Are Applicable ...................... IS Distance Regulated ...........................................19

Spacing of Signs ..................................... .. ........ .22 Signs Not Permissible..........................................23 Permissible Signs ...............................................23 Areas Which May Be Excluded ..................................25

OTHER OUTDOOR ADVERTISING STATUTES ...............................27 Removal of Existing Advertising Devices........................27 License and Permit Provisions..................................27

PART II

LEGAL CONCEPTS ..................................................32

NATURE OF PROPERTY INTERESTS ...................................... .33 Outdoor Advertising Leases.....................................36

REGULATION OF OUTDOOR ADVERTISING UNDER THE POLICE POWER .........38 Judicial Approval of Specific Police Power Regulations.............46 Regulation of Existing Advertising Devices.......................48 Police Power Principles and the National Policy...................48

CONTROL OF OUTDOOR ADVERTISING THROUGH EMINENT DOMAIN .........50

Acquisition of Advertising Rights ............................... 50

The Concept of Highway Purpose ............................... 50'

APPENDIX AZONING AND PLANNING ENABLING LAWS .................54 Municipal Enabling Zoning and Planning Laws...................54

County Enabling Zoning and Planning Laws ...................... 55 Land Use Controls; Regional Planning...........................56 State Enabling Zoning and Planning Laws........................56

APPENDIX B—SUMMARY OF STATUTES AND SELECTED JUDICIAL DECISIONS, BYSTATE .......................................................57

APPENDIX C—TABLE OF CASES ......................................96

APPENDIX D—BIBLIOGRAPHY OF SELECTED READINGS ...................100

SUMMARY OF FINDINGS

FEDERAL LEGISLATION AND THE NATIONAL

STANDA liDS

In 1958, Congress, pursuant to a declared national policy, authorized for the first time Federal participation in the cost of control-ling outdoor advertising in areas adjacent to the National System of Interstate and Defense Highways. Predicated upon the promotion of the safety, convenience and enjoyment of public travel, the free flow of interstate commerce and the, protection of the public investment in the Interstate Sys-tem, the policy is designed to encourage and assist the States to control advertising within 660 feet of the edge of the right-of-way of certain portions of the Interstate System.

As an incentive for State implementation of the national policy, an increase of one-half of one percent of the Federal share payable on account of any project on a seg-ment of the Interstate System to which the National Standards al)ply, is available to those States which enter into agreements, with the Secretary of Commerce, providing that such advertising will be controlled in keeping with the National Standards. Such agreements relating to the control and reg-ulation of advertising, may also include other provisions relative to the improvement and preservation of areas adjacent to the Interstate System: Certain areas may be excluded.

The cost of acquiring advertising rights will be considered a cost of construction eligible for 90 percent Federal participation, and up to 95 percent in public lands States, limited to five percent of the cost of the right-of-way for the project, whenever a State purchases or condemns advertising rights for the purpose of implementing the national policy.

STATE STATUTES COMPARED WITH THE

NATIONAL STANDARDS

There now exists a sizeable body of legis-lation dealing directly with the regulation and control of outdoor advertising. With-but exception, every jurisdiction (the 48

States, Alaska, Hawaii, District of Culuin-bia, and Puerto Rico) has in effect some form of legislation designed to control out-door advertising, whether it be based upon safety factors, aesthetic purposes or a gen-eral prohibition against advertising along designated facilities, to promote the welfare and safety of the travelers using such facil-ities and to preserve the value of the facility. Twenty-five jurisdictions have enacted con-siderable outdoor advertising legislation which regulates and controls this field with varying degrees of rigidity.

A comparison of State statutory provi-sions with the National Standards was made to show the areas of similarity and diver-gence.* There are few points on which State statutes and the Standards coincide. In those. States where scant outdoor advertis-ing legislation now exists, compliance with the National Standards would presumably require the enactment of extensive statutory provisions to meet the Standards. Some States may meet the requirements through the exercise of -the power of condemnation, zoning, or the reservation of scenic or de-velopment easements.

Basically the Federal Jaw pertains to the regulation of outdoor advertising within 660. feet of the edge of the right-of-way and visible from the main-traveled way of the Interstate System. Ohio, Vermont and Puerto Rico have legislation in effect which applies to a protected area of 660 feet or more from the right-of-way. Fourteen States have statutes specifying distances of pro-tectecl areas along highways, of less than 660 feet. There may be additional States whose statutes authorize broad kinds of control of outdoor advertising, but not in terms of specific distances, as here indicated. Whether such are sufficient to constitute compliance with this Federal standard needs further explanation. Such distance regulations frequently permit the erection and maintenance of certain classes of signs.

The Federal law pertaining to outdoor advertising applies only to the Interstate System, which at present is contii,cd to the continent! I inits of the Un itecl States. However, the laws of all 52 jurisdictions are considered in this report.

OUTDOOR ADVERTISING

Generally these are similar to those pro-vided for in the National Standards. How-ever, no State has the same classes of signs or the same requirements as those provided for in the classes established in the Stand-ards. The Standards set forth detailed requirements for the spacing or prohibition of signs at, approaching and leaving an interchange. Virginia is the only State which has embodied similar provisions in its statutes. New Mexico, Oregon and Ver-mont have statutory provisions restricting the spacing of outdoor advertising signs, but not to the extent specified in the Standards.

The Federal law and the Standards are applicable only to the Interstate System. Three States, Ohio, Vermont and Virginia, have outdoor advertising statutes specifi-cally designed to cover the Interstate Sys-tem. Twenty-two jurisdictions have outdoor advertising statutes applicable to all public highways; eight to the State highway sys-tern; and eleven govern specially designated or controlled-access facilities.

Upon application of a State, any agree-ment between the State and the Secretary of Commerce may, within the discretion of the Secretary, consistent with the national pol-icy, provide for excluding from application of the National Standards segments of the Interstate System which traverse incorpo-rated municipalities wherein the use of real property adjacent to the Interstate System is subject to municipal regulation or control, or traverse other areas where the land use is clearly established by State law as indus-trial or commercial.

Many jurisdictions restrict the applica-tion of their outdoor advertising legislation to areas outside the limits of incorporated municipalities or the built-up section of a town or city. No analysis of municipal ordinances pertaining to outdoor advertising has been made in this study because of the unavailability of such enactments. A de-tailed list of State enabling 'legislation, which authorizes municipalities to adopt zoning ordinances, establish planning com-missions or adopt local ordinances regulat-ing outdoor advertising, is set forth in Ap-pendix A.

No provisions are made in the National

Standards for the removal of illegal adver-tising signs since the Federal law and the Standards contemplate regulation and en-forcement by the State. Many jurisdictions have legislation dealing with this problem. Most States treat prohibited signs as public nuisances directly or inferentially, and make the continued existence of an illegal sign a misdemeanor. Some jurisdictions per-mit signs erected prior to the enactment of the statute to remain for a specific time period after which they must be removed. Under varying conditions, some States pro-vide that notice must be given the owner before the sign is removed; others provide that no notice is necessary. In a few juris-dictions, specific legal procedure is set forth to be followed by the proper authorities in having signs removed.

LEGAL CONCEPTS

Nature of Property Interests

Outdoor advertising is recognized as a business a:ctivity but is, of course, subject to regulation in the public interest. Outdoor advertising adjacent to highways may con-sist of: (a) signs soliciting public attention to the premises or to some activity con-ducted thereon, or (b) signs soliciting public attention to activities not conducted on the premises.

Signs of the first group are often regulated by State statutes, but are usually exempt from statutes prohibiting outdoor advertis-ing signs. Courts have protected the visi-bility of an abutting landowner's property from unreasonable obstruction. Reasonable regulations in the public interest, which inci-dentally interfere with an abutter's visibil-ity, have been held to be a valid exercise of the police power, and the abutter is there-fore not entitled to compensation for such interference.

Most court decisions concerning the con-stitutionality of outdoor advertising regula-tions assume that the restriction of outdoor advertising interferes with a property right and can be justified if it is a valid exercise of the police power. The nature of the prop-erty interest has not been defined in these cases. It was held, however, in the Vermont

SUMMARY

case of Kelbro, Inc. v. Myrick, that on the basis of the principles of real property law, the outdoor advertiser does not have any property interest in the abutting landown-er's right to be seen from the highway. The court's reasoning was that the right of visi-bility from the highway is an easement ap-purtenant to the land abutting a public highway and an appurtenant easement is created to benefit the posessor of the land in his physical use or enjoyment of that land. It cannot be used for purposes uncon-nected with the enjoyment of that land, and it cannot be assigned to another apart from the land to which it is appurtenant. Al-though the doctrine of this case was ex-pressly rejected by the Connecticut court in Murphy, Inc. v. Town of Westport, the basic principles of real property were not disputed. The Connecticut court refused to distingñish between the right of the abutting landowner to advertise his own business and the advertising of the business of an-other.

Outdoor Advertising Leases.—In an agreement between a landowner and an out-door advertiser the essential thing which the advertising company gets and pays for is the permission of the abutting owner to use the visibility of his land. It has been held that a landlord-tenant relationship is not created in such agreements because the right of possession, an essential element of a lease, is not present, therefore the "lease" constitutes only a license. However, in other cases it has been held to constitute an easement in gross or an "easement in the property, if indeed it was not a lease."

Regulation of Outdoor Advertising Under the Police Power

The Congress of the United States has declared it to be in the public interest to encourage and assist the States to control outdoor advertising in "protected areas" along "controlled portions" of the Interstate System to promote safety, convenience and enjoyment of public travel, the free flow of interstate commerce and to protect the public investment.

To constitute a valid exercise of the police

power, a regulation must promote, preserve or protect the public health, safety, morals, welfare, comfort or convenience. It has long been held that any one of the police power purposes offers sufficient justification for enactment of and judicial approval of a police regulation. However, it has also been considered unwise to categorize the police power purposes because more than one of these factors is usually involved in any single fact situation.

Outdoor advertising has been held to con-stitute a valid classification for regulation. Numerous., regulations of advertising de-vices have been upheld on health, safety and general welfare considerations. Although some courts have refused to uphold such regulations on aesthetic grounds, others have indicated that aesthetic considerations may be a valid basis for a police regulation. In other areas, such as in zoning, courts have upheld the exercise of police power for aesthetic purposes.

Although the regulation of outdoor ad-vertising on a State basis is not new, regu-lation of the type necessary to comply with the National Standards might be said to constitute an innovation. However, the Interstate System, as such, is an extension of the old concept of highways to meet today's transportation requirements, and governmental authorities have the duty to protect their citizens, even to the extent of restricting or prohibiting a legitimate busi-ness in the public interest.

Regulation of Existing Outdoor Advertis-ing Devices.—Where regulation is imposed upon outdoor advertising devices under an exercise of the police power, a statutory period is frequently provided during which existing devices may remain and after which they must be eliminated. Cases frequently discuss the reasonableness of the time speci-fled, but in the final analysis, the validity of such statutes is dependent upon whether the court can find that such regulation is for a public purpose and, therefore, a valid ex-ercise of the police power, rather than whether the advertiser is given a sufficient period of time to remove his outdoor adver-tising device without excessive financial loss.

OUTDOOR ADVERTISING

Control of Outdoor Advertising Through Eminent Domain

The Federal law provides that whenever a State shall acquire by purchase or con-demnation the right to advertise or regulate advertising in areas adjacent to the Inter-state System, Federal funds may participate in the cost thereof. Federal participation is limited to a share of that portion of the total cost of acquiring advertising rights which does not exceed five percent of the cost of acquiring the right-of-way for the project. The right-of-way is deemed to mean all right-of-way for the segment of highway involved, regardless of when acquired or whether Federal funds participated in such acquisition.

A State may find it necessary to exercise its power of eminent domain to impOSe re-strictive covenants upon adjacent land pro-hibiting the erection of advertising devices, or to obtain a sufficient interest in the land to enable it to exercise the requisite control of advertising and to enable it, if it should so desire, to lease out or erect bill-boards on those sites where advertising is permissible.

Federal participation in the cost of ac-quiring advertising rights is authorized, ac-cording to the. legislative history, even if (a) a State does not enter into an agreement to control advertising, (b) the State has acquired advertising rights in an area ex-cluded from the application of the National

Standards or (c) the area is adjacent to a segment of the right-of-way acquired prior to July 1, 1956.

State Power to Acquire Advertising Rights—In controlling advertising through eminent domain, the States are confronted with the following problems: (a) whether their eminent domain enabling authority is broad enough to include the acquisition of advertising rights'and (b) whether highway-user taxes, dedicated by antidiversion con-stitutional provisions, may be so used. Con-stitutional antidliversion amendments in 25 States require that money raised by high-way-user taxes be devoted solely to "highway purposes." Eminent domain S bling statutes in a majority of jurisdictions pro-vide that the State highway department may condemn lands and rights therein nec-essary for the construction, repair, mainte-nance, relocation and widening of State highw'ays. Other jurisdictions merely em-power the department to condemn land for highways or highway. purposes.

Regardless of the terminology, the con-stitUtional and statutory provisions contain an underlying concept—property may be condemned and highway-user taxes allo-cated for "highway purposes." Such a broad term appears analogous to the concepts of "police power" and "due process of law." While each has, without question, recog-nized areas of application, the limits of that application change with new conditions and circumstances.

INTRODUCTION

The Congress of the United States has de-clared, in the Federal-Aid Highway Act of 1958 (codified as section 131 of title 23, United States Code), that it is in the public interest to encourage and assist the States to control the use of and to improve areas adjacent to the Interstate System by con-trolling the erection and maintenance of outdoor advertising signs, displays and de-vices adjacent to that System.

To encourage the States to adopt the national policy the Act provides for the payment, under prescribed conditions, of additional Federal-aid, toward the cost of projects on the Interstate System.

This Federal incentive program, enacted by the Congress to encourage the regulation of outdoor advertising along the Interstate

and Defense Highway System, will be ef-fective only in those States where there is sufficient authority to enable the State high-way departments td conform to the Na-tional Standards.

This study has been undertaken in anef-fort to compile the State statutes and judi-cial decisions pertaining to the regulation of outdoor advertising along highways.

Part I of this report refers to the Federal law and National Standards and contains a comparison of State statutes with these Standards. Part II includes a discussion of the legal concepts pertaining to property interests, the regulation of outdoor adver-tising under the police power, and the con-trol of outdoor advertising through eminent domain.

Part I

FEDERAL LEGISLATION AND THE NATIONAL STANDARDS

On April 16, 1958, the Federal Aid High-way Act of 1958 became law.' This law, among other things, added a new concept to Federal-aid highway legislation. It pro-vides in part:

(a) National Policy: To promote the safety, convenience, and enjoyment of public travel and the free flow of interstate commerce and to protect the public investment in the Na-tional System of Interstate and Defense Highways, it is hereby declared to be in the public interest to encourage and assist the States to control the use of and to improve areas adjacent to the Interstate System by controlling the erection and maintenance of outdoor advertising signs, displays, and de-vices adjacent to that system It is hereby declared to be a national policy that the erection and maintenance of outdoor adver-tising signs, displays or devices within six-hundred and sixty feet of the edge of the right-of-way and visible from the main-traveled way of all portions of the Inter-state System constructed upon any part of right-of-way, the entire width of which is acquired subsequent to July 1, 1956, should be regulated, consistent with national stand-ards to be prepared and promulgated by the Secretary [of Commerce], which shall in-clude only . . . four types of signs, and no signs advertising illegal activities.....

The provision, designed to encourage and assist the States to control the use of and to improve areas adjacent to the Interstate System, (a) provides for the preparation and promulgation of standards by the Secre-tary of Commerce relative to outdoor adver-tising signs, displays or devices; (b) author-izes the Secretary to enter into agreements with State highway departments and Fed-eral agencies with respect to the control of outdoor advertising; (c) provides for an in-crease of one-half of one percent in the Federal share of the costs of those projects on the Interstate System adjacent to areas which are subject to the national policy and Standards, if the State enter; into an agree-ment with respect to the control and regula-tion of advertising; and (d) provides that

272 Stat. 89; 23 U.S.C. §131. 223 U.S.C. §131(a).

Federal funds may under certain circum-stances participate in such portion of the cost of acquiring advertising rights which dos not exceed 5 percentum of the cost of the right-of-way for such projects.

In effect then, two avenues of approach by which States may obtain additional Fed-eral funds are available to control outdoor advertising. They are (a) the acquisition of advertising rights in an area adjacent to the right-of-way on the Interstate System and (b) control in keeping with the Na-tional Standards and entrance into an agreement with the Secretary of Commerce to this effct prior to July 1, 1961.

The cost of acquiring advertising rights will be considered a cost of construction eligible for 90 percent Federal participa-tion, and up to 95 percent in public lands States, limited to five percent of the cost of the right-of-way for the project, when-ever a State purchases or condemns adver-tising rights for the purpose of implement-ing the national policy.

The extent of State control necessary to receive the incentive bonus is dependent upon the National Standards adopted pur-suant to the Federal law and promulgated by the Secretary of Commerce. Providing the National Standards are accepted by a State, an agreement between the Secretary of Commerce and the State highway de-partment must be entered into.3 Such an agreement shall contain provision relative to the control and regulation of advertising, and may contain other provisions relative to the improvement and preservation of areas adjacent to the Interstate System. Upon application of the State, any such agreement may, within the discretion of the Secretary of Commerce, consistent with the national policy, exclude from application of

All State highway departments are authori-iecl to enter into agreements with the Federal Government with respect to Federal-aid projects. An example of specific authority to enter into agreements relating to the erection of advertising devices l)urSuant to the 1958 Federal-Aid }lighway Act is found in Ohio. BALI)WIN'S oiiio xcv, cone §5531.05.

23 U.S.C. §131(b). Emphasis added.

IEDEflAL J,EOISLA'l'IOX AND STANDARDS

US 99 south of Tacoma Washington, a section of the Interstate and Defense Highway System. The Congress of the United States has declared It to be in the public interest to encourage and assist the

States to control the use of and to improve areas adjacent to the Interstate System.

the National Stztnt Ia ri Is tliost scglllt'llts of the System within inlol'pol'ate(I Illunicilali-ties, wiiei'ein the use of real propei'lY ada-('Cut to the Interstate Svsteni is subject to

lliUllil'i Ill1 u'cglll:tt ion or ('Ofltl'OI, and wit inn litil ('(Li'eOS where the land use is ('lettl'I\'

established by State law as industrial or ('Olnfliel'('iUl." II such all agu'eeullent is eli- teu'ed 111(1) prior to July 1, l9(1 the l'ederai

share payable for any pu'o,iect on the Inter-

state System, provided for liv 1111015 (III-

tliOl'iZC(l Ililliel' section 10S ())t of the Fed-

eu'al-Aid Highway Act ol 1956 and \vili('h is l'I)\'el'ed by the natilnll policy and the agi'eeinent shall be increased by one-half 1)1 one pe1'l'clit of the total cost thereat. The

total inst, iiliWt'Vel', shall not ilclll(he ttuiv iukhiti 1101 costs that may be incuu'red iuu

('allying out the agreement. The increase in

2:1 tsr. 131(h). .3 23 ti.'.t. 1 i51 (() , s al,',oil, §5, I',i'ra1_id High

W'SV AN of I955.

the .l'ederai shale is to be paid only from

:tJ)pl'Opl'ilti0fl5 fi'oni uiioitey in the Ti'eastui'v

not (It ii ('lW i 5( api )l'Oi) ii at CII.

The I\ationai Stitnhial'ds set tortli t lie

liiiliililtllll State coiit 1111 of out ilooi' ailvei'-

tising necessary to Obtilill the oiie-liaif of

one P (IcC nt tlliditiolial Feciei'ai him is. Of

(.'011l'se 1111\' State may clesiu'e to vNercise

greater i'ont i'( ii. Pi'OI)OSe( I Stttli( 101115 W'el'e

puhhsiied ill the }e(1el'li Register of August

25. 1958. A pel'ioll of 30 hays was given

hlul'ing which any inteu'este(l pCl'sOtms COtlIll

siihuiiit \vl'itten colllullents, suggestions or

proposals Concerning the Standal'lls. On l-

venibei' 13, 1935. the \at ional St andards

welt pull isilel I in the lieu lend Register.

1"olloving is a ('ill)' of tll(se NaiidaI'ds.

23 l.5.C. tIll 0.>. 22 I'. It. 2;7il, .iiiiit 25, 1958. 23 F.H. 5793, November 13, 1108.

OUTDOOR ADVERTISING

TITLE 23—HIGHWAYS

Chapter I—Bureau of Public Roads, Department of Commerce

PART 20—NATIONAL STANDARDS FOR REGU-LATION BY STATES OF OUTDOOR ADVER-TISING SIGNS, DISPLAYS AND DEVICES ADJACENT TO THE NATIONAL SYSTEM OF INTERSTATE AND DEFENSE HIGHWAYS

Sec. 20.1 Purpose. 20.2 Definitions. 20.3 Measurements of distance. 20.4 Signs that may not be permitted In

protected areas. 20.5 Signs that may be permitted In pro.

tected areas. 20.6 Class 3 and 4 signs within Informa-

tional sites. 20.7 Class 3 and 4 signs outside Informa-

tional sites. 20.8 General provisions. 20.9 ExclusIons. 20.10 State regulations.

AuTHoarry; §1 20.1 to 20.10 Issued undel sec. 131. 72 Stat. 904; 23 U. S. C. 131.

§ 20.1 Purpose. (a) In Tit1e 23, United States Code, section 131, herein-after called the 'act", the Congress has declared that:

To promote the safety, conven-ience, and enjoyment of public travel and the free flow of interstate commerce and to protect the public investment in the National System of Interstate and Defense Highways, hereinafter called the "Interstate System", it is in the pub-lic interest to encourage and assist the States to control the use of and to im-prove areas adjacent to such system by controlling the erection and mainte-nance of outdoor advertising signs, dis-plays and devices adjacent to that Sys-tem.

It Is a national policy that the erection and maintenance of outdoor ad-vertising signs, displays, or devices within. six hundred and sixty feet of the edge of the right-of-way and visible from the main-traveled way of aU portions of the Interstate System constructed upon any part of right-of-way, the entire width of which is acquired subsequent to July 1, 1956, should be regulated, consistent with national standards to be prepardd and promulgated by the Secretary of Com-merce.

(b) The standards in this part are hereby promulgated as provided in the act.

§ 20.2 Definitions. The following terms when used in the standards in this part have the following meanings:

(a) "A c q u i red for right-of-way" means acquired for right-of-way for any public road by the Federal Government, a State, or a county, city or other politi-cal subdivision of a State, by donation, dedication, purchase, condemnation, use, or otherwise. The date of acquisition

shall be the date upon which title (whether fee title or a lesser interest) vested in the public for right-of-way purposes under applicable Federal or State law.

(b) "Centerline of the highway" means a line equidistant from the edges of the median separating the main-traveled ways of a divided Interstate highway, or the centerline of the main-traveled way of a non-divided Interstate highway.

(c) 'Controlled portion of the Inter-state System" means any portion which

Is constructed upon any part of right-of-way, the entire width of which is acquired for right-of-way subsequent to July 1, 1956 (a portion shall be deemed so constructed if, within such portion, no line normal or perpendicular to the cen-terline of the highway and extending to both edges of the right-of-way will inter-sect any right-of-way acquired for right-of-way on or before July 1, 1956)

Lies within a State, the highway department of which has entered into an agreement with the Secretary of Commerce as provided in the act; and

Is not excluded under the pro-visions of the act which state that upon application of a State, any such agree-ment may, within the discretion of the Secretary of Commerce, consistent with the national policy, provide for exclud-ing from application of the national standards segments of the Interstate System which traverse incorporated municipalities wherein the use of real property adjacent to the Interstate Sys-tem is subject to municipal regulation or control, or which traverse other areas where the land use is clearly established by State law as industrial or commercial.

(d) "Entrance roadway" means any public road or turning roadway, includ-ing acceleration lanes, by which traffic may enter the main-traveled way of an Interstate highway from the general road system within a State, irrespective of whether traffic may also leave the main-traveled way by such road or turn-ing roadway.

(e) "Erect" means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in. any other way bring Into being or establish.

(f) "Exit roadway" means any pub-lic road or turning roadway, including deceleration lanes, by which traffic may leave the main-traveled way of an Inter- state highway to reach the general road system within a State, irrespective of whether traffic may also enter the main-traveled way by such road or turn-ing roadway.

(g) "Informational site" means an area or site established and maintained within or adjacent to the right-of-way of a highway on the Interstate System by or under the supervision or control of a State highway department, wherein pan-

FEDERAL LEGISLATION AND STANDARDS

els for the display of advertising and informational signs may be erected and maintained.

"Legible" means capable of being read without visual aid by a person of normal visual acuity.

"Maintain" means to allow to exist.

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

"Protected areas" means all areas Inside the boundaries of a State which are adjacent to and within six hundred and sixty feet of the edge of the right-of-way of all controlled portions of the Interstate System within, that State. Where a controlled portion of the Inter-state System terminates at a State boundary which is not perpendicular or normal to the centerline of the highway, "protected areas" also means all areas Inside the boundary of such State which are within six hundred and sixty feet of the edge of the right-of-way of the In-terstate highway in the adjoining State.

(1) "Scenic area" means any public park or area of particular scenic beauty or historical significance designated by or pursuant to State law as a scenic area.

"Sign" means any outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, or other thing which is designed, intended, or used to advertise or inform, any part of the advertising or informative con-tents of which is visible from any place on the main-traveled way of a controlled portion of the Interstate System.

"State" means the District of Columbia and any State of the United States within the boundaries of which a portion of the Interstate System is located.

(0) "State law" means a State consti-tutional provision or statute, or an ordi-nance, rule, or regulation enacted or adopted by a State agency or political subdivision of a State pursuant to State constitution or statute.

"Trade name" shall include brand name, trademark, distinctive symbol, or other similar device or thing used to Identify particular products or services,

'Traveled way" means the por-tion of a roadway for the movement of vehicles, exclusive of shoulders.

"Turning roadway" means a con-necting roadway for traffic turning between two intersection legs of an interchange.

"Visible" means capable of being seen (whether or not legible) without visual aid by a person of normal visual acuity.

§ 20.3 Measurements of distance. (a) Distance from the edge of a right-of-way shall be measured horizontally along a line normal or perpendicular to the centerline of the highway.

(b) All distances under § 20.7 (a) (2) and (b) shall be measured along the centerline of the highway between two vertical planes which are normal or per-pendicular to and intersect the center-line of the highway, and which pass through the termini of the measured distance.

§ 20.4 Signs that may not be per-mitted in protected areas. Erection or maintenance of the following signs may not be permitted in protected areas:

Signs advertising activities that are illegal under State or Federal laws or regulations in effect at the location of such signs or at the location of such activities,

Obsolete signs, Signs that are not clean and in

good repair, Signs that are not securely affixed

to a substantial structure, and Signs that are not consistent with

the standards in this part. § 20.5 Signs that may be permitted in

protected areas. (a) Erection or main-tenance of the following signs may be permitted in protected areas:

Class 1—Official signs. Directional or other official signs or notices erected and maintained by public officers or agencies pursuant to and in accordance with direc-tion or authorization contained In State or Federal law, for the purpose of carrying out an official duty or responsibility.

Class 2—On premise signs. Signs not pro-hibited by State law which are consistent with the applicable provisions of this section and § 20.8 and which advertise the sale or lease of, or activities being conducted upon, the real property where the signs are located.

Not more than one such sign advertising the sale or lease of the same property may be permitted under this Class in such manner as to be visible to traffic proceeding In any one direction on any one Interstate highway.

Not more than one such sign, visible to traffic proceeding In any one direction on any one Interstate highway and advertising activities being conducted upon the real property where the sign is located, may be 'permitted under this Class more than 50 feet from the advertised activity.

Class 3—Signs within 12 miles of adver-tised activities. Signs not prohibited by State law which are consistent with the ap-plicable provisions of this section and §1 20.6, 20.7 and 20.8 and which advertise activities being conducted within 12 air miles of such signs.

Class 4—Signs in the specific interest of the traveling public. Signs authorized to be erected or maintained by State law which are consistent with the applicable provisions of this section and §1 20.6. 20.7 and 20.8 and which are designed to give information in the specific interest of the traveling public,

(b) A Class 2 or 3 sign, except a Class 2 sign not more than 50 feet from the

10 OUTDOOR ADVERTISING

advertised activity, that displays any trade name which refers to or identifies any service rendered or product sold, used or otherwise handled more than 12 air miles from such sign may not be permitted unless the name of the ad-vertised activity which is within 12 .air miles of such sign is displayed as con-spicuously as such trade name.

(C) Only information about public places operated by Federal, State or local governments, natural phenomena, his-toric sites, areas of natural scenic beauty or naturally suited for outdoor recrea-tion, and places for camping, lodging eating and vehicle service and repair is deemed to be in the specific interest of the traveling public. For the purposes of the standards in this part, a trade name is deemed to be information in the specific interest of the traveling public only if it identifies or characterizes such a place or identifies vehicle service, equipment, parts, accessories, fuels, oils or lubricants being offered for sale at such a place. Signs displaying any other trade name may not be permitted under Class 4.

(d) Notwithstanding the provisions of paragraph (b) of this section, Class 2 or Class 3 signs which also qualify as Class 4 signs may display trade names in ac-cordance with the provisions of para-graph .(c) of this section.

§ 20.6 Class 3 and 4 signs within in-formational sites. (a) Informational sites for the erection and maintenance of Class 3 and 4 advertising and infor-mational signs may be established in accordance with the Regulations for the Administration of Federal-Aid for High-ways. The location and frequency of such sites shall be as determined by agreements between the Secretary of Commerce and the State highway departments.

(b) Class 3 and 4 signs may be per-mitted within such informational sites in protected areas in a manner consist-ent with the following provisions:

No sign may be permitted which is not placed upon'a panel.

No panel may be permitted to exceed 13 feet in height or 25 feet in length, Including border and trim, but excluding supports.

No sign may he permitted to ex-ceed 12 square feet in area, and nothing on such sign may be permitted to be legible from any place on the main-traveled way or a turning roadway.

Not more than one sign concern-ing a single activity or place may be per-mitted within any one informational site.

Signs concerning a single activity or place may be permitted within more than one informational site, but no Class 3 sign which does not also qualify as a Class 4 sign may be permitted within

any informational site more than 12 air miles from the advertised activity.

No sign may be permitted which moves or has any animated or moving parts.

Illumination of panels by other than white lights may not be permitted, and no sign placed on any panel may be permitted to contain, include, or be Illu-minated by any other lights, or any flashing, Intermittent, or moving lights.

No lighting may be permitted to be used in any way in connection with any panel unless it is so. effectively shielded as to prevent beams or rays of light from being directed at any portion of the main-traveled way of the Inter-state System, or is of such low intensity or brilliance as not to cause glare or to impair the vision of the driver of any motor vehicle, or to otherwise interfere with any driver's operation of a motor vehicle.

§ 20.7 Class 3 and 4 signs outside informational sites. (a) The erection or maintenance of the following signs may be permitted within protected areas, out-side informational sites:

Class 3 signs which are visible only to Interstate highway traffic not served by an informational site within 12 air miles of the advertised activity;

Class 4 signs which are more than 12 miles from the nearest panel within an informational site serving Interstate highway traffic to which such signs are visible.

Signs that qualify both as Class 3 and 4 signs may be permitted in accord-ance with either subparagraph (1) or (2) of this paragraph.

(b) The erection or maintenance of signs permitted under paragraph (a) of this section may not be permitted in any manner inconsistent with the following:

In protected areas in advance of an intersection of the main-traveled way of an Interstate highway and an exit roadway, such signs visible to Interstate highway traffic approaching such inter-section may not be permitted to exceed the following number:

Number of Distance from intersection: signs

0-2 miles---------------- 0. 2-5 miles---------------- 6. More than 5 mIles -------- Average of one

sign per mile. The specified distances shall be measured to the nearest point of the intersection of the traveled way of the exit roadway and the main-traveled way of the Inter-state highway.

Subject to the other provisions of this paragraph, not more than two such signs may be permitted within any mile distance measured from any point, and no such signs may be permitted to be less than 1,000 feet apart.

Such signs may not be permitted

FEDERAL LEGISLATION AND STANDARDS

11

in protected areas adjacent to any Inter-state highway right-of-way upon any part of the width of which is constructed an entrance or exit roadway.

Such signs visible to Interstate highway traffic which is approaching or has passed an entrance roadway may not be permitted in protected areas for 1,000 feet beyond the furthest point of the intersection between the traveled way of such entrance roadway and the main-traveled way of the Interstate highway.

No such signs may be permitted in scenic areas.

Not more than one such sign ad-vertising activities being conducted as a single enterprise or giving information about a single place may be permitted to be erected or maintained in such manner as to be visible to traffic moving in any one direction0 on any one Interstate highway.

(c) No Class 3 or 4 signs other than those permitted by this section may be permitted to be erected or maintained within protected areas, outside informa-tional sites.

§ 20.8 General provisions. No Class 3 or 4 sign may be permitted to be erected or maintained pursuant to §20.7, and no Class 2 sign may be permitted to be erected or maintained, in any manner inconsistent with the following:

No sign may be permitted which attempts or appears to attempt to direct the movement of traffic or which inter-feres with, imitates or resembles any offi-cial traffic sign, signal or device.

No sign may be permitted which prevents the driver of a vehicle from having a clear and unobstructed view of official signs and approaching or merging traffic.

No sign may be permitted which contains, includes, or is illuminated by any flashing, intermittent or moving light or lights.

No lighting may be permitted to be used in any way in connection with any sign unless it is so effectively shielded as to prevent beams or rays of light from being directed at any portion of the main-traveled way of the Inter-state System, or is of such low intensity or brilliance as not to cause glare or to impair the vision of the driver of any motor vehicle, or to otherwise interfere with any driver's operation of a motor vehicle.

No sign may be permitted which moves or has any animated or moving parts.

No sign may be permitted to be erected or maintained upon trees or painted or drawn upon rocks or other natural features.

No sign may be permitted to ex-ceed 20 feet in length, width or height, or 150 square feet in area, including bor-der and trim but excluding supports, ex-cept Class 2 signs not more than 50 feet from, and advertising activities being conducted upon, the real property where the sign is located.

§ 20.9 Exclusions. (a) The stand-ards in this part shall not apply to'mark-ers, signs and plaques in appreciation of sites of historical significance for the erection of which provisions are made in n agreement between a State and the

Secretary of Commerce, as provided in the Act, unless such agreement expressly makes all or any part of the standards applicable.

(b) Whenever a State-applies pur-suant to the Act for the exclusion from application of the standards in this part to segments of the Interstate System which traverse incorporated municipali-ties wherein the use of real property adjacent to the Interstate System is sub-jéct to municipal regulation or control or which traverse other areas where the land use is clearly established by State law as industrial or commercial, and the Secretary of Commerce in the exercise of his sound discretion believes that the exclusion of such segments will be con-sistent with the national policy de-clared in the act, the agreement between him and the State highway department will provide for such exclusion,

20.10 State regulations. A State may elect to prohibit signs permissable under the standards in this part without forfeiting its rights to any benefits pro-vided for in the act.

Dated: November 10, 1958.

Recommended: B. D. TALLAMY,

Federal Highway Administrator.

Issued: SINCLAIR WEEKS,

Secretary of Commerce.

[F. R. Doc. 58-9440; FIled, Nov. 10, 1958; 12:43 p. m.]

(from Federal Ilegieter, 23: 222, 8793-5 ; Nov. 13, 1958)

NATIONAL SYSTEM OF INTERSTATE. AND DEFENSE HIGHWAYS

OUTDOOR ADVERTISING SIGNS

- -

:' - ,

0 .

' \ --p- .

-

-'(

e 1 _- c -

pwr C

L%bts

CLASS 1 SIGNS

Official Signs

Directional or other official signs or notices erected and maintained by public officers or agencies pursuant to and in accordance with direction or authorization contained in State or Federal law, for the purpose of carrying out an official duty or responsibility.

CLASS 2 SIGNS

On Premise Signs

Signs not prohibited by State law which advertise the sale or lease of, or activities being conducted upon, the real property where the signs are located.

CLASS 3 SIGNS

Signs Within 12 Miles of Advertised

Activities

Signs not prohibited by State law which advertise activities being conducted within 12 air miles of such signs.

CLASS 4 SIGNS

Signs In the Specific Interest of the

Traveling_Public

Signs authorized to be erected or main-tained by State law which are designed to give information in the specific In-terest of the traveling public, i.e., infor-mation about public places operated by Federal, State or local governments, natural phenomena, historic sites, areas of natural scenic beauty or naturally suited for outdoor recreation, and places for camping, lodging, eating and vehicle servics and repair.

F'l(:l•:IiI•:

Signs perrn(l'I within protected areas along I In' ir.lt'r,.t.it,' lliI.wa Svst'n,.

and frequency limitations for Class 3 and 4 signs outside informational sites. -

1,4

OUTDOOR ADVERTISING

I p

CONTROLLEDZONED INDUST. I INCORPORATED lop COMMERICAL! MUNICIPALITY

PROTECTED AREA

:. .''..

,ji .; ..

CONTROLLED NOT CONTROLLED

,

EXISTING P.O.W.

I I I (AcosiRto ON OR BEFCRI JUxI,1964)

PROTECTED AREA. I

CONTROLLED CONTROLLED CONTROLLED UNLESS EXCIUD[D UNLESS EXCLUDED CONTROLLED NOT CONTROLLED

SY AGREEMENT BY AGREEMENT

FIGURE 8

The protected area, which is adjacent to and within 660 feet of the edge of the right-of-way of all controlled portions of the Interstate System, will include areas within incorporated municipalities or areas zoned industrial or commercial unless these are specifically excluded by the terms of the agreement between the Secretary of Commerce and the State highway departments. The protected area does not inclside any area adjacent to Interstate Highway right-of-way, any part of

which was acquired prior to July 1, 1956.

FEDERAL LEGISLATION AD STANDARDS 15

I Ii t

\NO

c o 0L /

ROL

660

--------------- FIGURE 4

How the protected area is determined where there are variations in the median and right-of-way width of an Interstate Highway. The 660-foot protected area is measured from the edge of the right-of-way, horizontally along a line normal or perpendicular to the center line of the highway. Areas adjacent to the Interstate Highway right-of-way, any part of which was acquired prior to JulY 1 1956, are not controlled. Note also the relationship of an existing road of conventional

design to the protected area of the Interstate Highway.

-.

- ••,

- '-5

•:--••

40

4L I 1 ,

: •k •D

•

7.1

;-

--

FI(;URE

intorniat ii,ial sit sit jsi-eiit to the Iii o-rstale $vsli-rn itiiy he estal,liheil and miiiilaii-1 by or ii,ili-r the sup,rvision anol control if 11w SIte highwsiv de- liIrltiieisls, to i,iititaiii itiii-is for the ilisjilay of ails s-ri sing and iiiIirnnat ioi,aI vigils Note fhe meeleralion and deceltrirt ion linus and (tin- Inumnmller in which

the situ- is ulesignuu-il, in kr-ping with a niaxiniurnnni it safety and conivi-iuiunce of I i-;mvel mom the expressway.

MENNEN MENEM MEMEME MENNEN

- • F!,

FEDERAL LEGISLATION AND STANDARDS 17

FIGUI1E C

The panel placed at an informational site may not exceed 13 feet in height and 25 feet in length, including border and trim, but excluding supports. The size of individua signs placed upon such panels may not exceed 12 square feet in area, but the Standards set forth no further limitations as to length or width of such signs. These sketches illustrate panels

containing signs of various dimensions. Note the size of the panel in relation to the size of a motor vehicle.

STATE STATUTES COMPARED WITH THE NATIONAL STANDARDS

The primary purpose of the subsequent analysis of the existing State statutory ma-terial pertaining to the regulation of out-door advertising is to present a comparison between the Standards and the State stat-utes to determine the adequacy of the present State law in meeting these Stand-ards. All States have some legislation now in effect relating to the control of advertis-ing devices. A substantial number have comprehensive regulatory provisions J some instances broad enabling legislation authorizes specific State agencies to regu-late advertising,"- to designate locations wherein advertising devices may be ex-c1uded, 2 to issue regulations implementing the stated policy,'3 or to submit plans to the legislature for the regulation of outdoor advertising.14 Statutes which contain broad enabling provisions but do not specifically mention outdoor advertising, have not been included in this report. Many existing State statutes pertain to specific aspects of out-door advertising. As a framework for analy-sis of this law, elements of the National Standards have been used.

HIGHWAYS TO WHICH STATUTES ARE

APPLICABLE

The Federal law and the National Stand-ards promulgated pursuant thereto are ap-plicable only to areas adjacent to the Na-tional System of Interstate and Defense Highways.3-5 At present, the Interstate Sys-tem is confined to the continental limits of the United States. However, for the pre-

'° Alaska, California, Colorado, Connecticut, flelaware, Flor-ida, Maine, Maryland, Massachusetts, Minnesota, Mississi5pi, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Utah, Vermont, Virginia, West Virginia, Wis-consin, Hawaii, Puerto Rico. See also Appendix B for a summary of statutes of the 52 jurisdictions.

ALASKA coM. LAWS ANN., 1949, §14A.12-4 ANN. LAWS OF MASS. ch. 16. §5c ; MISS. CODE ANNOT., 1942, §8038(f) WIS. STATS., 1957, §84.103 (along the Silent Cross Memorial Highway) ; D. C. CODE, 1951, §1.231.

COLO, REV. STATS., 1953, §120-5.7 ; NEV. 14EV. STATS., §405.000; N.A.S.A.. 854: 40-29 N.Y. CONSOL. LAWS SERVICE, Pub. Auth. Law, §361.a-3.

13 ner.n,ac,'s CALIF. CoDES, Bus. & Prof. Code, §5215 ; DEL. CODE ANNOT., tit. 17, §1103 REV. SPATS. OF SIE, ch. 23, §143 N.Y. CONSO4,. LAWS SEICYICE, Pub. Auth. Law, §361. a-3 oRe. REV. STATS., §5377.110-377.280. ' KY. REV. STATS., §147.080; ANNOT. CODE OF MD., 1957,

Art. 880, §3. ' 23 U.S.C. §131. Outdoor advertising has been controlled

within the right-of-way on all Federal-aid projects. 23 C.F.R. 1.11(c).

sentation of all laws applicable to the regu-lation of outdoor advertising, the laws of 48 States, Alaska, Hawaii, District of Columbia and Puerto Rico are analyzed in this report.

The question arises whether existing State statutes in their present form are applicable to the Interstate System. With the excep-tion of Ohio,3-e Vermont 17 and Virginia,18 there are no references to the Interstate Sys-tem as such in the existing State laws per-taining to outdoor advertising.

However, this does not mean that if a statute makes no specific reference to the Interstate System, the statute does not ap-ply to the System. Before making a final determination of this question, it would be well to examine the language of the stat-utes to ascertain which highways are en-compassed in the laws. Of these statutes, 2319 apply to all public highways, eight 20

to all State highways, eleven 21 to desig-nated parkways, expressways or toll facili-ties and three 22 to the Interstate System.

It appears that with the exception of those statutes which apply to named high-way facilities, i.e., the Maine Turnpike, the

10 BALDWIN'S OHIO REV. CODE, §5515.21. 17 VT. LAWS OF 1957, No. 275.

CODE OF VA., 1950, §33-317(12). 10 ALASKA COSIP. LAWS ANNOT., 1949, §14A-12-2; DEERING'S

CALIF. CODES, Bus, and Prof., §5207 ; COLO. REV. STATS., 1953, §120-5-2 ; (SEN. STATS. OF CONN., §4696 ; DEL. CODE ANNOT., tit. 17, §1108; FLA. STATS. 1957, §479.01(7) ; CODE OF GA., §595-2002, 95-2006; REV. STATS. OF ME. 1954, ch. 23, §142 ; ANNOT. CODE OF MD. 1957, Art. 56, §204 ; ANNOT. LAWS OF MASS., ch. 93, §29; N.J.S.A., §54: 40-20; (SEN. STATS. OF NC., §100-86; ORE. REV. STATS., §377.120(6) (SEN. LAWS OF RI., §5-18-1 ; CODE OF LAWS OF S.C., 1952, §4-103; TICNN. CODE ANNOT., §39-3608 ; UTAI-I CODE ANNOT.. 1953, §27-1.25 ; VT. LAWS OF 1957, No. 170, a,,,ending §7670 ; CODE OF VA. 1950, §33.298(4) ; W. VA. CODE OF 1955, §1721(49) ; REV. LAWS OF HAWAII, 1955, §155.70; LAWS OF 'it., tit. 9, §32.

CODE OF ALA., tit. 23, §36 ; ASIC. REV. STATS., §18-106 (8) ; OEN. STATS. OF CONN., §2248 ; REV. STATS. OF ME. 1954, ch. 23, §138 ; MISS. CODE ANNOT. 1042. §8159(a) ; NEV. 5EV. STATS. §405.110 ; N. MEX. STATS. 1953, §55-7.11, but see § 55-7.16.

21 DEERINO'S CALIF. CODES, Bus, and Prof.. 45291 (land. seaped freeways) ; COLO. REV. STATS. 1953, §120-5.4 (scenic parkways) ; REV. STATS. OF 21E. 1954, ch. 23, §149 (Maine Turnpike) ; ANNOT. CODE OF MD. 1957, Art. 898, §5226 to 910 (Northeaster,, Expressway). Art. 898, §5231 to 235 (ex-preSsways) ; MINN. STATS. 1953, §160.511 (Evergreen Me-morial Drive) ; N.Y. CONSOI,. LAWS SESS'ICE, Pub. Auth. Law. §361-a (N.Y. Thruway) see also Pub. Auth. Law, §569-b (W'hitestone and Brooklyn-Battery bridge projects) ; 0EV. STATS. OF NC., §136-89.56; PIJIDON'S PA. STATS. ANNOT.. tit. 36, §655.2 Pocono Memorial Parkway) ; VT. LAWS OF 1957, No. 275 (limited access facility) ; CODE OF \'A. 1950, §33-317 (1) (Blue JUdge and Colonial National Parkway. Mt Vernon Boulevard) ; 515. STATS. 1957, §84.103(4) (c) (Silent Cross Memorial Highway).

22 IiAi,DWIN'S 01-110 REV. CODE, §5515.21 ; VT. LAWS OF 1957, No. 275; coDe OF VA., §33-317(12).

18

STATE STATUTES AND NATIONAL STANDARDS 19

Table 1. Highways To Which State Outdoor Advertising Statutes Specifically Apply

Type of Highway

State or Territory Public State Express- Interstate I Toll

ways' I Facilities

Ala.................................. X Alaska ................................ X Ariz.................................. X Calif................................. X X Cob.................................. X X 2 Conn................................. X X Del.................................. X Fla.................................. X

X

.

Me.................................. X

.

X X Md.................................. x

.

X Mass.......................... ....... x Minn

...

...

X3 Miss ................................

.

Neb.................................. X Nev .................................. X N.J.................................. X

Ga........... .... ...... . .... ..........

N.M .................................

.

x N.Y

.

X X N.0 ................................. X X Ohio X Ore.................................. X

.

Pa X R.I .................................. X S.0 .................................. x Tenn................................. X

...

. ..

. ..

.

.

.

.

.

.X

.

Vt; .................................. X X X Va................................... X X X W.Va ................................ X

Utah..................................

Wis..................................

.

X Hawaii............................... X

.... .

P.R ................................. .x .

1 Includes controlled access facilities, limited access facilities, and parkways. 2 Certain provisions apply to scenic parkways on new location in cities and towns. 'Applies to the Evergreen Memorial Drive only.

above statutes do apply to the Interstate System. However, whether the statutes in effect which apply to the State highway system, cover the Interstate System depends upon whether the Interstate System is con-sidered part of the State highway system.

DISTANCE REGULATED.

The Federal law 21 and National Stand-ards ' pertain to the control of outdoor ad-vertising within 660 feet of the edge of the right-of-way and visible from the main-traveled way of certain poi-tions of the In-terstate System. Section 20.3(a) of the Standards prescribe that "Distance from

the edge of a right-of-way shall be meas-ured horizontally along a line normal or 1erpendicular to the centerline of the high-way." Few States have appropriate legis-lation in effect to meet the distance require-ments in the Standards. However, a State might meet this requirement through an ex-ercise of the power of condemnation, zoning, or the reservation of scenic or development easements.

Following is a general analysis of the pro-visions which specify cdrtain distances. from the right-of-way within which outdoor ad-vertising may be regulated.

Two jurisdictions, Puerto Rico 25 and Ver-mont,2° l)reScribe a greater distance from the

23 U.S.C. §181(a). 2r i,ws or P. It., tit. 9, §32. 24 23 P.R. 8703, November 13, 1958. Cr. l,AW5 or 1957, No. 275 (Interstate System).

Ell

OUTDOOR ADVERTISING

highway within which advertising is regu-lated than does the Federal law. In Puerto Rico the distance is 500 meters (1640.41 feet), while a 1957 Vermont statute pre-scribes 750 feet. Legislation enacted in 1958 in Ohio 27 prohibits outdoor advertising within 660 feet of the highway. Thus, only Ohio, Vermont and Puerto Rico have legis-lation in terms of specific distances which meet or exceed the distance specified in the Standards.28

A recently enacted Maryland statute 25

applicable to expressways, prohibits out-door advertising within 600 feet of the high-way. Several statutes establish a 500 foot prohibition.3° Outdoor advertising resem-bling traffic signs is prohibited within 300 feet of the highway in Connecticut 31 while signs over 300 square feet must be at least 300 feet from the highway in Vermont, and signs under 300 square feet cannot be closer than 35 feet.32 No advertising may be within 300 feet of the Evergreen Memorial Drive in Minnesota.33 In Utah,34 no form of advertising may be placed within 300 feet of a highway without first obtaining a per-mit from the State road commission. In New Mexico,35 advertising signs may be lo-cated within 100 feet from the highway after a permit is issued by the State high-way commission (proof of the consent of the property owner must be submitted).

Pursuant to Maine law, signs must be at least 50 feet from the highway 36 with the exception of designated classes which may be 20 feet from the highway.37 Missis-sippi also has established a 50 foot setback for outdoor advertising.38

A Delaware statute ° prohibits any ad-vertising device or structure within 25 feet

BALDWIN'S 01110 REV. CODE, §5515.22. 28 A declaration of public policy in Oregon refers to the

regulation of advertising signs "within view" of public highways. ORE. REV. STATS., §377.110.

ANNOT. CODE OF 311)., 1957, Art. 89B, §231. COLO. REV. STATS., 1953, §120-5.2 (not applicable if

property owner consents to erection of billboard) §120-5-4 (scenic parkways) REV. STATS. OF3IE., 1954, ch. 23, §149 (Maine Turnpike) ; ANNOT. CODE OF 311). 1057, Art. 898, §228 (Northeastern Expressway) N.Y. CONSOL. LAWS SERVICE, Pub. Auth. Law, §361-a, §569-b; CODE OF VA., 1950, §33. 317 (12) (Interstate System), § 33-317(1) (designated psi-k- ways).

CON. STATS. OF CONS'., §2248. ST. STATS., 12EV. (21' 1947, §7659.

0 MINN. STATS. 1953, §160.511. ' u'I'AI-I CODE ANNOT., 1953, §27-1-25.

as N. SlOT. STATS., 1053, §55.7-11. REV. STATS. OF ME., ch. 23, §142.

17 hi., ch. 23, §138(111). MISS. CODE ANNOT., 1942, §8159(a). DEL. CODE ANNOT., tit. 17, §1108(a)(2).

of any public highway, and if any advertis-ing copy is placed upon "rocks, trees, fences or barricades," it must be at least 50 feet from the highway.40 No sign may be within 20 feet of any unimproved highway in Ne-vada.41 Three States prohibit outdoor ad-vertising within 15 feet of the highway.42

Certain classes of signs in Vermont are per-mitted within 10 feet of a highway.43

It has been previously noted that the Na-tional Standards set forth a 660 foot pro-tected area which is to be measured from the edge of a right-of-way horizontally along a line normal or perpendicular to the centerline of the highway. The State stat-utes setting forth distance prohibitions con-tain various base points which are used to measure the protected area such as, "outer edge of the right-of-way," "from the high-way," and "centerline." 44 With the dif-ferent base points in use, it is possible for a State to specify a distance similar to the Standards but still not qualify because of the point of measurement of such distance.

From a reading of the statutes it cannot be determined whether there is any sub-stantial difference between "outer edge of the right-of-way" and "from the highway." If the latter term is interpreted to mean the right-of-way, then both terms are synony-mous. However, if the highway is con-sidered to be the traveled l)01'tion of the right-of-way then the results stemming from the two base points will differ. In any event, it appears that using the "cen-terline" of the highway as the base point would yield a different protected area than using the edge of the right-of-way.

Several State statutes prohibit outdoor advertising within specified distances of parks, playgrounds, State forests, historic sites and other such areas.45 Specific clis-

40 1d.. tit. 17, §1108(b). "NEV. REV. STATS., §405.030. ' GEN. STATS. OF CONS'., §4606 ; FIA. STATS. 1957, §478.11

(1) In Virginia, in addition to the 500 foot limitatio,s ap-plicable to certain highways including the Interstate System, a 15 foot limitation is provided for 311 highsvays. CODE OF VA. § 33-317(8).

43 VP. STATS., REV. OF 1947, §7681. ' See Table 2.

45 C0LO. REV. STATS., 1953, §120.5.5(1) (250 feet) ; OEN. STATS. OF 001212., §4696 (100 feet) ; DEL. CODE ANNOT., tit. 17, §1108(a) (2) (25 feet) ; FLA. STATS., 1957, §479.11(1) (100 feet) ; REV. STATS. 02' SIC., 1954, ch. 23, §142 (300 feet) ; CON. STATS. OF N. 0., §130-102; 5. D. CODE OF 1939, §28.0905 ; VT. STATS. REV. 1947, §7689 (300 feet) ; CODE OF VA.. 1950, §33-317(1) (500 feet) ; P. VA. CODE OF 1955, §1721(57)(a) (500 feet).

STATE STATUTES AND NATIONAL STANDARDS 21

Table 2. Distance Specified in State Statutes for "Protected Areas"

State or Territory

Statutory Citation

Distance, in ft.

Base Measuring Point Where Applicable

Cob. §120-5-4 500 Scenic parkways in cities and towns

Conn. §4696 15 Outside line of highway Any highway outside thickly settled or business section of city or town

Del. Tit. 17 251 Any public highway, parkway §17-1108

Fla. §479.11(1) 15 Outside boundary Federal or State highway

Me. Ch. 23 so Nearer line of traveled way Public highways §142

Cli. 23 500 Right-of-way boundary line Turnpike §149

Md. Art. 89B 500 State-owned right-of-way Northeastern Expressway §220

Art. SOB 000 Right-of-way line Expressway §231

Minn. §100.511 300 Center-of traveled part EvergreenMemorial Drive

Miss. §8159 50 Centerline State highway

Nev. §405.030 20 Main traveled way Unimproved highways

N. M. §55-7-11 ioo Centerline of right-of-way State highway outside city, town or village2

N. Y. Pub. Auth. 500, Project Whitestone or Brooklyn-Battery §509-b Bridge projects or approaches

thereto

Pub. Auth. 500 Edge of pavement Thruway §301-a

Ohio §5515.22 000 Edge of right-of-way Interstate System outside municipal corporation

Pa. Tit. 30 500 Pocono Memorial Highway §655.2

Utah §27_1_25 300 On public domain or along any public highway

Vt. §7089 3003 Center of traveled part Any highway

Laws, 1957 750 Right-of-way Interstate or limited access No. 275

Va. §33-317(5) 15 Edge of pavement Anhighway

§33-3 17 500 Designated parkways, Interstate (1) (12) System

P. R. Tit. 9 1,640.414 Center of the road Roads §32

Fifty feet if placed upon rocks, trees, fences or barricades. As designated by a resolution of State highway commission. Applies to signs 300 square feet or over. Signs under 300 square feet cannot he closer than 35 feet. 500 meters.

22

OUTDOOR ADVERTISING

tances from hazardous locations, such as highway-highway and highway-railroad in-tersections, are also frequently established by statute.

SPACING OF SIGNS

Under prescribed conditions, Class 3 and 4 signs (in the National Standards) are per-mitted within the 660 foot protected area outside informational sites in accordance with distance and spacing requirements.47

The National Standards provide that no Class 3 orb4 sign may be permitted in pro-tected areas adjacent to any Interstate highway right-of-way upon any part of the width of which is constructed an entrance or exit roadway.48 The Standards provide that no such sign visible to Interstate high-way traffic which is approaching or has passed an entrance roadway may be per-mitted in protected areas for 1,000 feet be-yond such entrance roadway.49 The Stand-ards provide that no sign visible to traffic proceeding toward an exit roadway be per-mitted within two miles of the intersection of the Interstate highway and such exit roadway; that not more than six signs be permitted more than two miles but less than five miles from such exit roadway, that in protected areas more than five miles from such exit roadway, the number of signs will not exceed one per mile,1° and that in no such instances will signs be permitted less than 1,000 feet apart or more than two signs in any mile distance.5'

The only State statute which expressly deals with advertising devices in the vi-cinity of an interchange, as distinguished from a conventional highway intersection,

40 DEERINO'S CALIF. CODES, Bus, and Prof., §5287 (300 feet) ; COLO. REV. STATS., 1953, §120.5-5(2) (250 feet) Ft,A. STATS., 1957, §479.11 (100 feet) ; REV. STATS. OF ME., 1954. ch. 23, §142 (300 feet) ANNOT. CODE OF MD., 1957, Art. 56, §204 (200 feet) MICH. STATS. ANNOT., §9.1406 (500 feet) ; MISS. CODE ANNOT., 1942, §2021 (200 feet) REV. STATS. OF NEIL, §39-714.01 (300 feet) N .H. REV. STATS., §249.49 (400 feet) N. J. STATS. ANNOT., §54: 40-27 (500 feet) ; N. 51EV. STATS. 1953, §55-7-10 (500 feet) N. D. REV. CODE, 1943, §24.0112 (1,000 feet) ; 0EV. LAS'S OF R. 1., 1956, §11-22-3 (300 feet of railroad crosSing and 50 feet of high-way or street crossing except when on a building at least 10 feet in height) ; VT. STATS., REV. 1957, §7689 (300 feet) REV. CODE OF WASh. §036.86.100, 47.32.140 (500 feet) See OILE. REV. STATS., §377.130(3), CODE OF VA., 1950, §33-317, and wis. STATS., 1957, §86.191, for detailed standards. Other State provisions relative to the protection of hazardous loca-tions do not specify distance.

4' 23 F.R. 8793, November 13, 1058. §20.7. 48 Id., §20.7(b) (3). 49 Id §20.7(b)(4). rejf §20.7(b)(1). 01 1d., §20.7(b)(2).

is the recently amended Virginia law'2 A comparison of the Virginia statute with the National Standards indicates a conflict be-tween the two provisions. As was noted previously, the Standards do not permit ad-vertising devices within two miles of an exit roadway, but the Virginia statute per-mits within one mile of an interchange ad-vertising which:

relates to business establishments offer-ing essential services to motorists, limited to automotive services, lodging, and food serv-ing establishments located within ten miles of the interchange at which the sign is posted or the next interchange in either direction on the Interstate System, along which such signs are elected;

The permissible signs, as defined in the Virginia law, appear to be within the 5COC

of Class 4 signs, as set forth in the Stand-ards. In addition, the Virginia statute pro-vides that such signs shall not exceed 300 square feet in area, shall conform to State approved design and color 54 and, that not more than four signs for each business be located in the area.55

Three States, New Mexico,5° Oregon,5 and Vermont,58 have restrictions on the spacing of outdoor advertising signs. The New Mexico an'd Vermont provisions are directed at eliminating a row or series of signs advertising the same article or busi-ness.

The Oregon statute, however, establishes detailed spacing requirements depending upon the type of highway involved. Oregon requires that on any highway or through-way there be at least one-half mile between two signs which advertise the goods, prod-ucts, facilities, services or business of the same commercial enterprise.55 As applied to conventional highways I'D there must be at least 300 feet between two signs on the same side of the highway if the combined adver-tising area of the two signs is 130 square feet or less; 500 feet if more than 130 square

CODE OF VA., 1950, §33.317(12)(a). Id., §33.317(12)(a)(1).

54 f1., §33-317(12)(a)(2). Id., §33-317(12)(a)(3). NEW MEXICO STATS., 1953 §55-7-10(h).

57 ORE. REV. STATS., §0377.130(7), 377.150 (highways), §377.160 (throughways) ; see also §1377.140(2), (3), 377.170 in relation to the aforecited provisions.

VT. STATS., Rev, of 1947, §7684. 59 ORE. REV. STATS., §377.130(7). 7° See, ORE. REV. STATS., §377.120(6) and (8) for defini-

tionS of highway and throughway.

STATE STATUTES AND NATIONAL STANDARDS

23

feet.61 In the case of throughways, a dis-tance of 1,000 feet is required and no sign 60 feet or more in length may be erected within view of the facility.62 Certain signs are exempted from the provisions of the Oregon spacing requirements.°3

Under their existing law, all of the juris-dictions provide for the exemption of cer-tain classes of signs. Such exempted signs, however, in the majority of cases are in-cluded within the scope of Class 1 and 2 signs as defined in Section 20.5 of the Na tional Standards.64 The frequency and spac-ing requirements apply to Class 3 and 4 signs.

Some jurisdictions, in requiring the issu-ance of State permits for the erection of ad-vertising structures, vest discretion in the issuing agency.65 It is not always possible from the statute itself to determine any pos-sible effect of the exercise of this discretion with respect to the frequency and spacing provisions of the National Standards. 6

SIGNS NOT PERMISSIBLE

The Standards contain provisions which, in addition to limiting the locations in which advertising devices may be placed, govern the construction, maintenance and character of signs.67 Signs which are in need of re-pair, unclean, not securely affixed to a sub-stantial structure, obsolete, or affixed to trees, rocks or other natural features are not permissible. Also not permissible are ad-vertising signs which: advertise illegal ac-tivities; resemble official traffic signs or di-

° Id., §377.150. 62 1d., §377.160. 5 Id., §377.140. °' 23 F.R. 8793, November 13, 1958. m For example, see x.j.s.a., §54'. 40-29. No permit other

than therenewal of an existing permit shall be issued for the erection, use or maintenance of any billboard, structure or other object for the display of outdoor advertising in any location, which in the judgment of the Director would be injurious to the property in the vicinity thereof or in. juriously affect any public interest.

section 54 40-31. No permit shall be issued for the erection, use or maintenance of any billboard, structure or other object for the display of outdoor advertising in any location where such display in the judgment of the Director, will interfere with the view of any other advertising dis-play for which a permit has been duly issued under this act, or where, in the judgment of the Director, the extent of existing advertising display is such that any addition thereto will create a condition hazardous to traffic on an adjacent higl,way.

5 In New York and Massaci,usetts, specific governmental auti,orities are authorized to promulgate regulations for the issuance of permits. N.Y. coxsoi,. LAws 5ERICE, Pub. Auth. Law, sec. 301-a, 3 re N.Y Tliru\vay ANNOT. LAWS OF MASS., ch. 16, §Sc creating the Outdoor Advertising Division of the Department of Public Works.

07 23 F.R. 8793, §120.4, 20.8, November 13, 1958.

rect traffic; obstruct official signs; contain flashing, intermittent, or moving lights; con-tain 'animated or moving parts, or them-selves move; or have lighting which inter-feres with 'the vision of a driver. Many jurisdictions have laws in effect which in certain respects are similar to the provi-sions in the Standards.""

PERMISSIBLE SIGNS

The Federal law provides for four classes of outdoor advertising signs which, under certain conditions, may be placed within the protected area. As set forth in the statute these classes are:

Directional or other official Signs or flO-tices that are required or authorized by law.

Signs advertising the sale or lease of the property lJPOfl which they are located.

Signs erected or maintained pursuant to authorization or permitted under State law, and not inconsistent with the national policy and standards of this section, advertising activities being conducted at a location within twelve miles of the point at which such signs are located.

Signs erected or maintained pursuant to authorization in State law and not inconsistent with the national policy and standards of this section, and designed to give information in the specific interest of the traveling public.eS

The National Standards contain a more de-tailed definition of the four classes of signs, repeated here for emphasis:

(a) Erection or maintenance of the following signs may be permitted in protected areas:

Class 1—Official signs: Directional or other official signs or notices erected and maintained by public officers or agencies pursuant to and in accordance with di-rection or authorization contained in State or Federal law, for the purpose of

CODE OF ALA. 1940, §36-49; ASK. STATS., 1947 §41. 2106; DEERINO'S CALIF. cones, Bus. and Prof., 5286 COLO. 11EV. STATS., 1053, § §120.5.11 to 120-5-13; 120-5-5; DEL. CODE ANNOT., tit. 17, §11108, 1109 CODE OF OA., § §68.1616, 95-809, 95-2002 to 95-2006; IIURNS' IN!). STATS. ANNOT., §136-2931, 47-1008 ; 5MITII'IIIJRD ILL. ANNOT. STATS,, ch. 95?,, §131 ; Cone OF IOWA, 1958, §321.259; GleN. STATS. OF (ASS. ANNOT., §8.516; KY. REV. STATS., §277.160 ; Rev. STATS. OF ME., ch. 23, §142; MICII. STATS. ANNOT., § §9.1405, 9.2315; MINN. STATS., 1953, §1109.07, 169.073 ; MISS. CODE ANNOT., 1942, §8159; CON. STATS. OF S.C., §114-386, 136-32 N.M. STATS., 1953, §55.7.10; S.D. 11EV. CODE OF 1943, §124-0112, 24-0912, 39-1304 ; ORE. 11EV. STATS., §377.130 ; S.D. CODE OF 1939, §28.0907 ; TENS. CODE ANNOT., §139.5008, 59. 813; VERNON'S TEN. STATS., Pen. code, 1948, trt. 827A(13) CODE OF S'A., 1950, §33.317 ; 11EV. CODE OF WASh., §147.30.140 to 47.36.180 ; W. VA. CODE OF 1955, §1721 ; WIS. STATS., 1957, §186.19, 346.41.

0 23 U.S.C., §131(a).

24

OUTDOOR ADVERTISING

cariying out an official duty or se-sponsibility.

Class 2—On premise signs: Signs not pro-hibited by State law which are con-sistent with the applicable provisions of this section and §20.8 and which adver-tise the sale or lease of, or activities being conducted upon, the real property where the signs are located.

Not more than one such sign ad-vertising the sale or lease of the same property may be permitted under this Class in such manner as to be visible to traffic proceeding in any one direc-tion on any one Interstate highway.

Not more than one such sign, visible to traffic proceeding in any one direc-tion on any one Interstate highway and advertising activities being conducted upon the real property where the sign is located, may be permitted under this Class more than 50 feet from the ad-vertised activity.

Class 3—Signs within 12 miles of advertised activities: Signs not prohibited by State law which are consistent with the applicable provisions of this section and §20.6, 20.7 and 20.8 and which advertise activities being conducted within 12 air miles of such signs.

Class 4—Signs in. the specific interest of the traveling public: Signs authorized to be erected or maintained by State law which are consistent with the applicable provisions of this section and §20.6, 20.7 and 20.8 and which are designed to give information in the specific in-terest of the traveling public.

(b) A Class 2 or 3 sign, except a Class 2 sign not more than 50 feet from the advertised ac-tivity, that displays any trade name which refers to or identifies any service rendered or product sold, used or otherwise handled more than 12 air miles from such sign may not be permitted unless the name of the advertised activity which is within 12 air miles of such sign is displayed as conspicuously as such trade name.

Only information about public places op-erated by Federal, State or local governments, natural phenomena, historic sites, areas of nat-ural scenic beauty or naturally suited for out-door recreation, and places for camping, lodging, eating and vehicle service and repair is deemed to be in the specific interest of the traveling public. For the purposes of the standards in this part, a trade name is deemed to be information in the specific interest of the traveling public only if it identifies or characterizes such a place or identifies vehicle service, equipment, parts, accessories, fuels, oils or lubricants being of-fered for sale at such a place. Signs displaying any other trade name may not be permitted under Class 4.

Notwithstanding the provisions of pare-

graph (b) of this section, Class 2 or Class 3 signs which also qualify as Class 4 signs may display trade names in accordance with the provisions of paragraph (c) of this section.°

Several jurisdictions have statutes simi-larly classifying signs. No State, however, has a classification similar to Class 3. Class 1 and 2 signs are similar to the classification in 15 States, Hawaii and Puerto Rico.71 Five other jurisdictions 72 have classifica-tions similar to Class 2 signs. Only three States 7

3 have provisions relating to signs such as contained in Class 4 signs.

In Oregon,74 the size and spacing limita-tions pertaining to signs adjacent to high-ways and throughways do not apply to a sign advertising a roadside service located upon or within five miles of the highway facility. However, the sign must contain an

area less than 250 square feet and be lo-cated either within two miles of the service or an access road leading thereto. The stat-ute provides that there not be more than two signs in each direction from the road-side service on the facility upon which, or within five miles of which, the roadside service is located. The newly enacted Vir-ginia statute permits advertisements within one mile of an interchange of "automotive services, lodging and food serving establish-ments located within ten miles of the inter-change at which the sign is posted or the next interchange in either direction on the Interstate System along which such signs are erected." 15 Such signs may not exceed 300 square feet in area, and each business establishment is limited to four signs.76 The West Virginia statute 77 exempts from its coverage "signs erected by West Virginia

70 23 F.R. 8793, §20.3, November 13, 1958. DEERING'S CALIF. CODES, BuS, and Prof., §15203, 5229,

5293 ; COLO. REV. STATS. 1953, §120.5.10 GEL STATS. OF coax., §84690, 4696, 1955 Supp. §2337d; DEL. CODE ANNOT., tit. 17, §1114 ; FLA. STATS. 1957, §479.16 ; REV. STATS. OF OE. 1954, ch. 23, §1138, 146 ; MINN. SPATS. 1953, §160.511 NEV. REV. STATS., §8405.030(2), 405.040(4) ; N.J.S.A., §54: 4035 ; N.Y. CONSOL. LAWS SERVICE, Pub. Auth. Law, §361.a, 7; BALDWIN'S oxio CODE, §85515.22, 5515.221; ORE. REV. STATS., §377.140 VT. STATS. REV. OF 1947, §7687, Laws of 1957, No. 275; CODE OF VA. 1950, §133-302, 33-317; \V. VA. CODE OF 3955, §1721 (62) ; REV. LAWS OF 7IAW. 1955, §11544, 155-70, 155-72; LAWS OF Fit., tit. 9, §33.

72 ALASKA CORP. LAWS ANNOT. 1949, §14A.12.2 (applies to business in rural area) ; ANNOT. CODE OF MD. 1957, Art. 8913, §8228, 232 ; ANNOT. LAWS OF MASS., oh. 93, §30 N. REX. STATS. 1953, §55.7.11 ; GEN. LAWS OF R. s. 1956, § 5-181.

73 O11E. REV. STATS., §377.140(3) ; CODE OF VA. 1950, §33-317(12)(a)(b) ; W. VA. CODE OF 1955, §1721(62)r.

74 ORE. REV. STATS., § 1377.140, 150, 160. 75 CODE OF VA. 1950, §33.317(12)(a)(1). 10 1d., §33.317(12)(a)(2), (3).

W. VA. CODE OF 1955, §1721(02)r.

i:-.. (7(i'F(.

ST VIE STA'l'U'l'ES AND NATIONAL STANL)AIIDS 25

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PLATE B

US 12 between St. Paul and Chicago, a section of Interstate highway. The national policy is to encourage control of advertising within 660 feet of the edge of the right-of-way and visible f.rom the

main-traveled way of portions of the National Systom of Interstate and Defense Highways.

lotus, pel'soils or t'Ol'l)1lI'at iollS;ulvcl'tising natural scenic CflVCI'l)S located in this State.'

Several other jurisdictiolls have statutes \\'ilB'il regulate the (listallee a sign must be located from a place of business or the size of the sign itself.' 9

.-&ni-:.-&s \VII Id-I MAY BE ExcLI'l)F:l)

The Fcdci'al law authorizes the Seei'et ;urv of Commerce to enter into agreements with tile several State llighway departments to (-airy out the national policy \vitll respect to controlling the erection and Illaintenance of outdoor advertising signs. Upon applicition of the State, any such agl'eeluient Illay,

within the Secretary'S (use ret 1(111. consistent with the national t die, exclude from ap-plicatioll of the National Standards 'seg- mcnts of the Interstate stein which travel-se incorporated iiuiiiuiciiailitics Wllel'eifl the use of i-cal property adjacent- to the Inter-state System is suh.iect to uiutiiuicipal regu-litton or cont i'ol, or whiell traverse other

DF.ERING'S CALIF. C((IIIS, ilus. & Prof., §3229 ; STATS. OF' COON. - § (19)) (CV. STATS. 01' 911:., 11)54, eh. 23, §(13S, 116; §51: -10-35 IV, VA, CODE OF Jt55, §1721(62).

DCI.. CODE ANNul., fit. 17, §1114; 5Ev. STATS. (0' lIE.,

11)5 I, eli. 23, i § lIt. 146.

ai'cas where tile Ia iid usc is clt';o'ly ('st-Oh)-lisheil by State law as industrial or illcrcia! - , . .'' SO

At present, tlui'i'e are pl'ovisiolls in the outdoor advertising statutes of at. least IS jurisdictions which liiiuit the application of these laws to areas outside the eoi'porate limits of niuiiieipalitics Or the built up Seetiolls (If a town 01' eitv.' The New York Thruway Authority is givell the diseret'n (n-ary p0\Vel' to exeiuipt from ('I verage particu-lar a i't'as hec',iiise llf unique Cil'etln)StaileeS."1

In Rhlode Islatul tue ;tuthioi'ity to regulate outdoor advertising is conferred upon cities and towns.' In other instances authority

' 23 U.S.C., §131(b). Dl ALASKA CDIII', LAWS AS\0I'., 13)19, §1-1.1-12-2; DCCII-

ISO'S CAll I'. CODES: Bus, and l'rc,f., § 522)', ; ( 0.0. I CV.

ST.(TS., 1151, § 120-5-2 DCI.. CODE .oNNoT., lit. 17. § II 'P3(c), (di ; i-l.a. STATS. 1007, § 17:00 ', (SNOT. CODE OF III'.. 1957, Art .513, §202; MINN. STATS.. 1053, §160.511 NEV. REV.

sills., § 105,080, 4115.1)4(1; N. MEl. si T8., 1953. 35'7-9 55-7-11 ; ((Al.DW INS 1)11 I,) REV. CODE, § § 5513.22, 5515.221 05,-;. 11EV. STATS.. § 377.1-1)1(a) ; ('TAIL CODE (N SOT. 1133, §27.1.25; VI. STArS.. REV. or 1917, §57611. 70o'J ; CODE OF

VA.. 1950, §33.3110; W. VA. ('ODE OF 1055, § 1721 (51) l.,I(VSOF1.11., lii. 9, §33(3).

(EN. STATS. (0 CON 0,, 461)6 ; (ICy, ST ITS. (0' II C.,

1954, ci,. 23, §1-17 VEI{Sl'(Ni JAWS ((V 1057, No. 273, 0. - N.Y. CONS('l.. lAWS SKIll (PC, P,ih bit. Low. 310.a 4.

HEx. iws OF LII., 1956, §i5-I-1 to 3-18--I. S,e Iso, IICF;I(lNS'S C.lI,LF. CoDES. Uov. ('of.', §35774 ; 111(110 ('('((K, §50.130 (('Ii's of III,' (lIst ('ls') : SllTI1'III'RD Il.)....NOT.

STATS., Cli. 24. §(95-21. 23-22, 23' 23. 23-21; 10 (50' 1011. STATS. ANNOT.. §4S-1 107 (11,11) V I1FS(, tIurI%-.-igliIi,) (all cities) CODE OF lOW I, 11158, §3(39(3) 1) ((il iFS (lilt l,,W!0

26

OUTDOOR ADVERTISING

of municipalities may be contained in char-ters and in zoning and planning enabling legislation. References to enabling legisla-tion for the enactment of zoning ordinances

liEN. STATS. OF KAN., Annot., §13-406 (city), §13-910 (first class cities), §14-431 (second class cities) ; ANNOT. CODE OF SI 5., 1957, Art 23A, §2(5) (incorporated municipality ex-cept Baltimore City), Art. 2313, §22(9) (40) (municipality) ANNOT. LAWS OF MASS., Ch. 85, §8; silcu. STATS. ANNOT., §5.1307, §5.1819 (fourth class cities), §5.2082(5) (home rule cities) MINN. STATS. 1953, §411.40(8) (cities of fourth class) ; no. see. STATS. 1949, §74.145(9) (first class city), §75.110(42) (second class cities), §94.270 (fourth class cities) ; SAY. CODES OF MONT., 1047, §1.910 (city and town) ISES'. STATS. OF NEIL., §14.102(2) (metropolitan class cities), §16-210 (first class city), §17-140 (second class cities),

and the establishment of planning commis-sions may be found in Appendix A.55

§15.208 (primary class cities) ; N.H. 15EV. STATS., §47.17 (VII); N.J.S.A., §40: 175-10, 40: 175-23; N. alex. STATS., 1953, §14-21-5 (XII, XIIT) (Cities, towns and villages), §14-42.8 (cities, towns and villages) ; N.Y. CONSOL. LASVS SEIIS'ICE, Village La',s', §89(48) (villages) ; GSA. STATS. OF NC., §160-200(9) (cities and towns) ; NI). RE)'. CODE, 1943, §40-0501 (16) ; fl.SI.DWIN'S 01110 REM. CODE, §715.27(A), 715.65 (municipal corporations) ; l'IJUDON'S PA. STATS. ANNOT., tit. 53, §23116 (second class cities), §37403 (17) (third class city) ; VERNON'S TEN. CIV. STATS. 1948, Art. 1175 (24) (home rule cities) ; sTAll CODE ANNOT. 1953, § §10.8-26, 10-8.27, 10-8-28 (cities), § 10-8-30 (cities and towns) ; 5'. VA. CODE OF 1955, §581 (84) ; \s's'o. CoMI'. STATS., 1945, §29-307, 29-313 (cities and towns).

S Since mui icipal ordinances are not readily available, they could not be iscluded in this study.

OTHER OUTDOOR ADVERTISING STATUTES

REMOVAL OF EXISTING ADVERTISING DEVICES

In several States, statutes pertaining to the control of outdoor advertising contain special provisions applicable to existing ad-vertising devices. Many States expressly or by implication treat prohibited advertising devices as public nuisances,8° and make the continued existence of an illegal sign a mis-demeanor and impose a penalty.87 Mary-land requires the removal of existing adver-tising devices only in the event a traffic hazard is created.88

Several jurisdictions, for example, Mary-land, Ohio, Oregon and Puerto Rico, allow the advertising to remain for a designated period of time after which it must be re-moved 89 In Maryland, outdoor advertising leases executed prior to June 1, 1958, be-come null and void on June 1, 1961.1° In Ohio, the period of grace is one year while in Oregon, five years, and Puerto Rico three or five years, depending upon the type of sign and other factors. The New York Thru-way Law makes it a public nuisance to

So For example: DECKING'S CALIF. CODES, Bus. & Prof., §5311 OEN. STATS. OF CONN., H4698, 4009; DCL. CODE ANNOT., tit. 17, §1111; FLA. STATS., 1957, §479.17; ,sNNo'r. CODE OF MD., 1957, Art. SOB, §229 ANNOT. LAWS OF MASS., cii. .93, §30A MINN. STATS., 1953, §160.511(3) ; MISS. CODE ANNOT., 1942, §8159(b) ; NEV. REV. STATS., H405.020, 405.110; N. MEN. STATS., 1953, §55.7-13 ; yr. LAWS OF 1957, No. 170 §5; CODE OF VA. 1950, §33-321; W. VA. CODE OF 1955, §1721(03).

' For example: AI,ASKA COME. LAWS ANNOT., 1949, sec. 14A-12-7 ; COLO. REV. STATS., 1953, §120-5-13; OEM. STATS. OF COMM., §2248; N.J.S.A., §54:40-40 ; SEN. LAWS OF 11.1., 1956, §5-18-4; BrAn CODE ANNOT., 1953, §27.1-29; REV. LAWS OF I1ASS'AII, 1955, SeC. 154-15, Sec. 155-75.

ANNOT. CODE OF OlD., 1957, Art, 56, Sec. 207. ANNOT. CODE OF MD., Art. 890, §231-233 ; IIALDWIN'S

01-110 REV. CODE, §5515.23, 5515.24; OIlS. REV. STATS., §377.250 ; LAWS OF in., tit. 9, §34.

The State Roads Commission is authorized to negotiate and (leterm 1110 the amount due pal- ties under leases run iug beyond this cut-off date. ANNOT. CODE OF MD., Art. 8913, § 233.

erect or maintain an advertising device sub-sequent to September 1, 1952, which does not meet the requirements of the statutes.°' Since the statute became effective on April 10, 1952, billboard owners were given ap-proximately five months to comply with the terms of the statute.

In Wisconsin, the statute does not apply to structures erected prior to the enactment of the law. However, no addition or altera-tion may be made to an existing structure which is in violation of any regulation pro- IlluIgatdl pursuant to the statute.52 -

LICENSE AND PERMIT PROVISIONS

Some State statutes require a license to engage in the business of outdoor advertis-ing.93 Permits are frequently required for the erection of outdoor advertising devices.04 Some details of the statutes are given in Tables 3 and 4.

91 N.Y. CON5OL. LAWS SERVICE, Pub. Auth. Law, §301-a, 6. WIS. STATS.., 1957, §84.103(4) (c).

93 CODE OF ALA., tit. 51, §456 ; DEEIIING'S CALIF. CODES, Bus, and Prof., §5240.5242, 5324 ; OEM. STATS. OF CONN., §4688 ; FLA. STATS., 1957, §479.04 ; LA. REV. STATS., 1950, §47:394; REV. STATS. OF ME., 1954, cii. 23, H137, 141; ANNOT. CODE OF MD., Art. 56, §201 ; ANNOT. LAWS OF MASS., cli. 93, §29; MISS. CODE ANNOT., 1942, §9433, 9685 N..J.S.... H54 : 40-20, 54: 40-41; SEN. STATS. OF NC., §105-86 ; OIIE. REV. STATS., §377.180 ; PENN. CODE ANNOT., § 67-4203, Item 3, (f) (g) ; VT. STATS. REV. OF 1947, §7678 CODE OF VA., 1950, §33-303 ; is'. VA. CODE OF 1955, §1721 (52) 7 D.C. CODE, 1951, §1-232 7 REV. LAWS OF hAWAII, 1955, cli. 154, §2 ; cli. 155, §71 ; LAWS OF l'UEIITO IIICO, tit. 13, § 1291(50).

S ALASKA COME. LAWS ANNOT., 1949, §14A-12-4 ; DEEIIINO'S CALIF. CODES, Bus. and Prof., §5325 ; OEN STATS. OF CONN., §4689, 4691; DEL. CODE ANNOT., tit. 17, §1104 ; CIA. STATS., 1957, §497.07 ; lIES'. STATS. OF ME., 1954, Cli. 23, §138, 139; ANNOT. CODE OF MI)., 1957, Art. 56, §204 ANNOT. LAWS OF MASS., ch. 93, §29; REV. STATS. OF NEll., §39-714.01; NEV. REV. STATS., §405.040, 405.070; N.J.S.A., H54: 40-20, 54: 2023 ; N. MEN. STATS.., 1953, §55-7-11; N.Y. CONSOL. LAWS SERVICE, Pub. Auth. La',',', §361-a, 1 ORE, REV. STATS., §377.200; UTAH CODE ANNOT., 1953, §27.1. 25; VT. STATS.. REV. OF 1947, §7679, sr. LAWS OF 1957, No. 170, amending §7683; CODE OF VA., §33-307, 33-308; W. VA. CODE OF 1955, §1721(54) ; REV. l,A',I'S OF IIAWAII, 1954, cli. 154, §6.

27


Table 3. Licenses Required, by State Statute, to Engage in the Business of Outdoor Advertising

Jurisdiction By Whom Issued Fees Duration Disposition of Fees

Ala. State Constructed in counties with population over

200,000—$150.00 199,999-100,000—$125.00

99,999— 75,000-8100.00 74,999— 50,000— $50.00 49,999— 30,000— $25.00

less than 30,000— $15.00

Calif. Department of $50.00 1 yr. 20% retained by county clerk, Public VTorks remainder to credit of State

Highway Fund.

Conn. Commissioner of $100.00 1 yr. State Police

Fla. Chairman of the Operation in one county, 1 yr. Allocated to State Road De- State Road Dc- $25.00; 2-8 counties, $75; partment for administration partment more than 8, $200 plus $15 of Act and construction and

for each county where oper- maintenance of roads. ated.

La. State Collector of of 10 per sq. ft.; minimum 1 yr. Credited to State General Revenue 25 cents . Fund.

Me. State Highway $100.00 if for direct profit; 1 yr. General Highway Fund. (Ad- Commission $25.00 if not for direct ministrative costs are paid

profit. If not more than 5 from separate appropriation signs less than 20 sq. ft. in for Highway Commission's area, fee is $5.00. administrative expenses.)

Md. State Roads Corn- $200.00; for 50 or fewer signs, 1 yr. Administrative expenses paid mission fee is $50.00. first, remainder to account

of State Roads Commission to be used for planting and improving rights-of-way.

Mass. Outdoor Advertis- ing Board'

Miss. State Tax Corn- $2.00 for each hoard of 300 sq. 1 yr. As provided by law. mission ft. or less; $2.00 for each ad-

ditional 300 sq. ft. or portion thereof.

N. J. Department of $100.00 1 yr. Administrative expenses paid, Taxation & remainder dispersed among Finance the municipalities where de-

vices are located. N. C. Commissioner of 20 or more signs, $25,00; Less 1 yr.

Revenue than 20 signs, $1.00 per sign, plus stipulated fees to cities, towns, etc. based upon population.

Ore. Commissioner of Signs: 50 or less, $25.00; 51— 1 yr. Credited to Bureau of Labor the Bureau of 500, $50.00; over 500, Account to be used only for Labor $100.00. Administration.

OTHER STATE STATUTES 29

Table 3—Continued

Jurisdiction By Whom Issued Fees Duration Disposition of Fees

Tenn. County Court Bill Posters: for counties has'- 1 yr. Clerk ing population: 60,000 or

over, $100.00; 40,000-60,000, 840.00; 20,000-40,000, 820.00; less than 20,000, $10.00.

For owning, renting, conduct- 1 yr. ing or operating billboards in counties having population:2 60,000 or over, $125.00; 20,000-60,000, $40.00; less than 20,000, $20.00.

Vt. Secretary of State $25.00 1 yr.

Va. State Highway $100.00 1 yr. Allocated to the State High- Commissioner way Commission for use in

the construction and maintenance of highways.

W. Va. State Road Com- $100.00 1 yr. Allocated to the State Road missioner Commission for use in the

administration of Article 22 (Outdoor Advertising) and in the construction and maintenance of secondary roads.

D. C. Superintendent of $5.00 1 yr. Licenses

Hawaii Treasurer $250 city and county ofHono- 1 yr. lulu; other counties, $100.

Puerto Rico Secretary of Those engaging in business of 3 inos. Treasury outdoor advertising-5 cents

per square foot; merchants or manufacturers (unless exempted under tit. 13, §1291), 5 cents per square foot.3

1 Board may make rules and ,eg,,lations for this purpose. State tax is due in each county where person who rents, leases or operates such billboards, maintains an office

and in all other counties wl,ere signs are rented, leased or operated, one-1,alf the State tax is due. Puerto Rico also requires an annual Commonwealth tax of 50 ce,,l.s per square meter for advertisi,,g matter displayed

on property adjoining the public roads.


Table 4. Permits Required, by State, to Erect Outdoor Advertising Devices

State By Whom Issued Fees Duration Disposition of Fees

Alaska Commissioner of the Alaskan Highway & Public Works Department

Calif. Director of Public Advertising sign, 25; Adver- 1 yr. 20% retained by county clerk, Works tising structure, $1.00. remainder' to account of

State Highway Department.

Conn. Commissioner of Advertising space, 300 sq. ft. 1 yr. State Police or less, $3.00; 301-600 sq.

ft:, $6.00; 601-900 sq. ft., $9.00; (signs over 900 sq. ft. prohibited).

Del. State Highway 1 yr. Department

Fla. Chairman of 20 per sq. ft. of face, minimum 1 yr. Allocated to State Road Dept. State Road De- 50. for administration of this partment Act and construction and

maintenance of roads.

Me. State Highway Area 100 sq. ft. or less, $2.50; 1 yr. General Highway Fund (ad- - Commission 101-300 sq. ft., $4.50; ' . ministrative costs are paid

301-700 sq. ft., $5.00; from separate appropriation 701-900 sq. ft., $7.00. for Highway Commission's

*dministrative expenses).

Md. State Roads Corn- One-half of 10 per sq. ft. of 1 yr. Administrative expenses paid mission surface. Minimum $1.00. first, remainder to account

of State Roads Commission for planting and improving rights-of-way.

Mass. Outdoor Advertis- ing Board.'

Neb. Department of Not less than 250 or more Roads than $5.00 per sign.

Nev. County Clerk $5.00 per sign. 1 yr. Apportioned to County Road Fund.

N. J. Department of Advertising space 50 sq. ft. or 1 yr. Administrative expenses paid, • Taxation & less, 80; 51-100 sq. ft., remainder dispersed among

Finance $1.50; 101-250 sq. ft., $3.00; the municipalities where de- 251-500 sq. ft., $6.00; 501- vices located. 800 sq. ft., $8.00; over 800 sq. ft., $25.00.

N. M. State Highway $5.00 per sign plus advertising 1 yr. $5.00 defrays cost of investi- Commission area less than 50 sq. ft., 50; gating application. Variable

51-100 sq. ft., $1.00; exceed- fees used for administration ing 100 sq. ft., $2.00. with remainder to State road

fund.

N. Y. Thruway Au- $10.00 original fee, $5.00 1 yr. Commingled with other Au- thority thereafter. thority moneys.

Ore. Commissioner of Advertising area 50 sq. ft. or 1 yr. Credited to Bureau of Labor the Bureau of less, 50; 51-250 sq. ft., Account to be used only for Labor $1.00; 251-500 sq. ft., $2.00; administration.

over 500 sq. ft., $3.00.

Utah State Road Corn- mission

OTHER STATE STATUTES 31

Table 4.—Continued

State By Whom Issued Fees Duration Disposition of Fees

Vt. Secretary of State 40 for each sq. ft. with mini- 1 yr. mum of $2.00 per panel. Six mills per sq. ft. for permits issued for period not exceeding one month.

Va. State Highway Signs not exceeding 74 sq. ft., Allocated to the State High- Commission single face 75, double faced way Commission for use in

$1.00; 75-424 sq. ft., $2.50; the construction and main- 425-624 sq. ft., $4.00; in ex- tenance of highways. cess of 624 sq. ft., $1.50 for each additional 200 sq. ft.

W. Va. Commissioner of $1.00 1 yr. Allocated to State Road Corn- State Roads mission for Administration

of Article 22 (Outdoor Ad- vertising), and the construction and maintenance of secondary roads:

Board may make rules and regulations for this purpose.

ii

Part II

LEGAL CONCEPTS

Outdoor advertising has been controlled by regulation or by purchase or condemna-tion.

The power of government to regulate is based on the police power, under which a State may regulate the activities of people and affect the use of their property in the interest of the public. In general, under valid police power regulation the restric-tion,of an individual's activities or property must be suffered for the good of the public; he is not entitled to any special considera-tion in terms of compensation for the effect of the law on his private interests.

Whether a law or regulation is designed to promote the public health, safety, morals, comfort, convenience or general welfare is the criterion for determining the validity of statutes which regulate or provide for the regulation of outdoor advertising as it is for any other type of legislation or regula-tions for which the police power is used as the authority to affect private interests for the public good without compensation.

Judicial interpretation of laws regulating outdoor advertising is considered in the sec-tionon "Regulation of Outdoor Advertising

Under the Police Power." The effects of technological advancements and changing circumstances have been taken into con-sideration by some courts in determining the validity of such laws.

Although government may regulate and restrict a person's activities and use of property without compensation under the police power, in general it may not take (and in some States also may not damage) a person's property without compensation. It may, however, by using its power of eminent domain, take private property for a public purpose and pay for it. Statutes and judicial decisions relevant to the use of this power, including the interpretation of "highway purpose," are discussed in the section "Control of Outdoor Advertising Through Eminent Domain."

Before discussing the control of outdoor advertising through the use of police power and eminent domain, property interests which might be involved are considered, inasmuch as only where there is a property interest is it necessary to resort to the use of eminent domain rather than regulation under the police power.

32

NATURE OF PROPERTY INTERESTS

The constitutionality of legislation regu-lating outdoor advertising has in most cases been based on the proposition that forbid-ding outdoor advertising, without compen-sation, can be constitutionally justified only if it is a valid exercise of police power.°° In analyzing the property interest involved in such control, three factors present them-selves: the actual property interest in a business; the interest in having the product of that business, outdoor advertising signs, seen from the highway; and the nature of the legal instrument permitting the erection of such sign in a particular place.

The fact that outdoor advertising is a recognized business does not preclude its regulation in the public interest. As stated by Mr. Justice Reed in Breard v. Alexan-dria: °°

The Constitution's protection of property rights does not make a state or a city im-potent to guard its citizens against the an-noyances of life because the regulation may restrict the manner of doing a legitimate business . . we think that even a legiti-mate occupation may be restricted or pro-hibited in the public interest.

Outdoor advertising encompasses both signs soliciting public attention to the premises or some activity conducted thereon, and signs soliciting public atten-tion to some activity not conducted on the premises. The real value of either of these two types of signs along the highway is de-pendent upon its visibility from the high-way. However, in ascertaining the property interest involved in outdoor advertising a distinction must be made between these two types of advertising. 1\'Iany statutory regulations treat these two types differently.

An abutting property owner's rights in the land included within the highway are merely those of any other member of the public; however, as the owner of land abut-ting upon a public highway, he has certain rights against the public over and above

05 Franklin Furnit,,re co. v. l3riclgeport, 142 Conn. 510, 115 A.2d 435 (1955) People v. Murphy, 195 N.Y. 126, 88 N.E. 17 (1909) Comm. v. Boston Adv. Co., 185 Mass. 348, 74 N.E. 601 (1005) Murphy, Inc. v. Tow,, of Westport, 131 Coon. 292, 40 A.2d 177 (1944).

00341 U.S. 622, 632 (1950).

his rights as a member of the public. rIllese abutter's rights of access, air, light and view are in the nature of easements in the part of the highway adjoining his land appur-tenant to his lot.

Although these abutter's rights are recog-nized property interests, which cannot be taken or completely destroyed without compensation,°7 interference with the right of view by some public improvement which causes only incidental injury to the abutter is not compensable.98 Cases in which dam-age to the abutter's right of view has been found to constitute a taking of property in-volved a physical structure, such as a bridge, grade separation, or elevated rail-road, which completely or substantially blocked the property.°°

The abutter's interest in access, air, light and view in the highway arose because his-torically highways were constructed pri-marily to serve the land. However, high-ways of modern expressway design, such as those on the Interstate System, are pri-marily intended to serve through traffic. The abutter's rights are therefore limited in the interest of providing safer and more efficient routes for public travel. Until there is a highway, abutters' rights, which are based on the existence of a highway, do not accrue. Therefore, it has been held that an abutter of an expressw'ay on new location is not entitled to compensation. Since no rights had accrued, there were none to be taken away.10°

The right of the owner or tenant of the abutting property to have the street kept open so that his premises can be seen by passers-by has been protected in cases w'here encroachments on streets or sidewalks ob-

07 The Fourteentl, Amendme,,t of the United States Con-stitution and all of the State Co,,stitutio,,s provide that private property may not be take,, without due p,ocess of law.

Is See 'Expressway Law, An Analysis," and cases cited therein, H.R.B. S.R. 26,, p. 16.

09 See, e.g. Anderlik v. Iowa State Highway Comm., 240 Io,vn 919, 35 N.W.2d 605 (1949) ; People v. Ricciardi, 23 Cal.2d 390, 144 P.2,1 766 (1943) and Story v. New York Elevated Hit Co., 90 N.Y. 122, 43 Am. Rep. 146 (1882).

100 See Carazalla v. State of W'isco,,sin, 269 Wis. 593, 71 N.W.2,l 276 (1955) Robinson v. State, 207 Misc. 325, 137 N.Y.S.2d 673 (1955) Smick v. Com mon weal th, 268 S.\V.2d 424 (Ky. App. 1954) ; State Highway Commission v. ]Surk, 200 Ore. 211, 265 P.2d 783 (1954) Schnider v. State, 38 Cal.2d 439, 241 P.2,1 1 (1952).

33

34

OUTDOOR ADVERTISING

scured the visibility of signs, window dis-plays or show cases.101, In these cases the right of visibility was enforced with respect to signs or displays of goods intended to at-tract customers to the business conducted on the premises and interference with the view from the street was a detriment to that business.102

Using the terminology of the law of ease-ments, the public highway is the servient land, burdened with the easement of access, air, light and view, for the benefit of the dominant land contiguous to the highway.

The owner of the dominant estate can utilize an appurtenant easement only for purposes connected with the use and enjoy-ment of the dominant estate.'°3 He cannot authorize others to use the easement for purposes unconnected with the use and en-joyment of the dominant estate.'°4

An easement is an incorporeal right, a hereditament, and it is appurtenant to the land. Since an easement appurtenant is in-tended to be exercised only for the benefit of and in connection with the dominant tenement, it cannot be separated therefrom by its transfer to a person other than the owner of such tenement.105

°°' Kiaber v. Lakenan, 64 F.2d 86, (CCA 8th, 1933) First Nat. Sank v. Tyson, 133 Ala. 459, 32 So. 144 (1902) Williams v. Los Angeles Ny. Co., 150 Cal .592, 89 I'. .330 (1907) ; Yale Univ. v. New Haven, 104 Conn. 610, 134 AtI. 268 (1920) Hischof v. Mercha,,ts Nat. Bank, 75 Neb. 838. 106 NW. 996 (1900) ; Biown-Brand Realty Co. V. Saks & Co., 126 Misc. 336, 214 N.Y. Sspp. 230 (1925) ; Anthony Carlin Co. v. Ilalle Llros. Co., 23 Ohio App. 115, 155 N.E. 398 (1926) Davis v. Spragg, 72 W. Va. 672, 79 S.E. 652 (1913). See also Aunot., 90 A.L.R. 793 (19.34), Annot., 40 A.L.R. 1321 (1926).

m Historically, easements appurtenant were substantial factors in the agricultural set-up of England. Such case'nients were required to have been created for the purpose of benefiting the owner of the clo,sinant estate as the possessor of the dominant estate. In an agricultural community, where dominant estates were always (arm land this test was easy to apply and became crystallized to mean that, to be found appurtenant, the easement must be found serviceable to the agricultural utilization of the dominant estate, ..s the types of land situ iza tion have become more diversified in modern society, especially in the Us ited States, it has become neces-sary to lessen the crystallized English rule and to recognize that serviceability to the dominant estate can exist even whe,,the dominant estate is devoted to business purposes. 3 'owe,.,, nEAt I'Itoi'EIsTI', sec. 405,

10) 5 ight-of-wa.y appurtenant to one piece of laud cannot lawfully be used as a mealts of access to other land. iloughtaling v. Stoothott, 1.70 Misc. 773, 12 N.Y.S.2d 207 (1937), afi'd 259 App. Div. 854, 19 N.Y.S.2d 510 (1940). National Silk Dyeing Co. V. Grobart, 117 N..I.Eq. 156, 175 Atl. 91 (1932) McCullough v. Broad Exchange Co., 101 App. Div. 566, 02 N.Y. Supp. 333 (1905), sff'd 184 N.Y. 590, 77 N.E. 1191 (1906). In Chase v. C,'am. 39 10.1. 83, 97 Ati. 481 (1910) the court held that a deed grantiimg the privilege of taking water from it certa in spring as occasion may require" enabled granhee to take svater for use on the property only and did not give her the right to bottle it and sell it.

104 Louisville N.A. & C. v. Malott, 135 Tnd. 113, .34 N.E. 709 (1893) Hales v. Atlantic Coast Line R.R. Co., 172 NC, 104, 90 S.E. 11 (1916) Siechler v. Walt,, 266 Pa. St. 361, 100 AtI. 643 (1920).

10 Eastham v. Church, 801 Ky. .93, 219 S.W.2d 406

An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his physi-cal use or enjoyment of that tract of land to which the easement is appurtenant. It is not sufficient to satisfy this requirement that he may, because of the easement, realize more revenue from his use of it.'°6

It has been contended by some writers,107 and held in the case of Keibro, Inc. v. My- rick,108 that commercial billboard companies have no property right in the privilege of visibility from the highway, therefore, the regulation .of outdoor advertising cannot be unconstitutional.

A definite distinction is made between an easement which has both a servient and a dominant estate, and an easement in gross wherein there exists a servient estate but no dominant estate, and in which the servitude is imposed upon real estate with the benefit of the servitude running to an mdi-viclual and not to a dominant estate.'°° An appurtenant easement cannot be conveyed, by the party entitled thereto, separately from the land to which it is appurtenant. It can be conveyed only by the conveyance of such land. It, adheres in the land and can-not exist separate from it and cannot be converted into an easement in gross."'

In the Keibro case,11' the Vermont Su-prei1e Court, citing GODDARD, EASEMENTS,

383 (8th Ed. 1921) said, at page 530:

- . - "a right of way appurtenant to a domi-nant easement can be used only for the purpose of passing to or from that tenement.

(1040), citing 3 TIFFANY. sec. 761, Stokes i'. Matsey, 194 Va. 339, 73 S.E. 2d 269 (1952), moans, EASKAt41NT, sec. 28.

"A,, easement appurtenant to Ia,id cannot be cotiverted into an easement in gross by an attempted separation of the ownersh i1, of the easement and of the dominant tenement as by a conveyance of the dominant estate the owner reserving or excepting the easement or vice versa. Such an attempt as's i Is notli i tig ; the easement notwithstanding continues to adhere to the dominant estate to which it is appurtenant and passes with it to the grantee thereof, though not specifically mei,tio,,ed. Otice appurtenant it is always appimrtetiatit. MINO5, UCAL PIiOl'IdltTt' 124, as cited in the Stokes case, at page 272.

'°'nes'raTieaicar, Pt'opert.y §453 (1944). '°' 'I'erry, The Cssstitsstiosstify of Stafutes Forbidding

Ads crti.sssg Signs on Properly, 24 Yale L.J. (1914) W'ilso,i, liiilboard.s and Right to be Sees. front the Ilighsvoy, 30 Ceo. L.J. 723 (1942) Olds, Iliuboords Along the Highwoys, 26 7ilich. State Bar J. 13 (1.947).

l0s 113 Vt. 64, 30 A.2cl 527 (1943). 105 Stokes v. Matney, 194 Va. 339, 73 S.E.2d 269 (1052). 115 McClintic-Marshall Co. v. Ford Motor Co., 254 Rich.

305, 236 N.W. 792 (1931) Lamb v. Pontiac, Oxford & Norther,, RIO. Co., 150 Rich. 340, 113 N.W. 1110 (1907) Cadwalader s'. Bailey. 17 N.J. 495, 23 AtI. 20 (1891) ; Wood v. Wooclley. 160 N.C. 17, 75 S.E. 719 (1912) Houston ,'. Zahm, 44 Ore. 610, 76 Poe. 641 (1904) toNes, EASEMeNTS § 25.

in Ssspro., note 108.

PROPERTY INTERESTS 35

~A 44

ON

— I ¶

/

PLATE C

Queens-Midtown Expressway in New York. Upon application of the State and within the discretion of the Secretary of Commerce, consistent with the national policy, segments of the Interstate System traversing incorporated municipalities may be excluded from the application of the National Standards.

It ('annut be ie.i'd for an', p)ul'osr' micon-nected wit Ii t he enjoy ni cot of I lie darn inant I ('nertient neit liii can it be issigned by the ilonijiiaiit OwlIi'l' to :011)1 li€i' persOli and so he made a right in gross. nor caii he license :inVOn(' to lisp t he way when he is not ('((lii-ing to to' f ront the iluiniiant teiuenient (Mc('ullougli v. Broad Fxehange ('u.. 101 App. Div. 566.92 N.V.S. 533 Bang v. For-roan. 241 Mich, 571, 222 N.W. 96; Milh'r v. \Veingart - :317 III. 179, 117 N.E. 901.) \Vhile this principle has been ai plied most ire-qriently to rights at way it is :ipplieahle to of ht'i' Ill piirtenant easements andshi()uh)l, in 0111' 01 'inion. he applied in I lie present case tvli ore the servo 'j(t I ('nement is till, p ihl k-highway, built with puhhi- funds, designed for puld ii' use and under the explosive l'eglI-lat [01) (11(1 p1)111 rol of the Legishit tue.

is this so sinet' it a priio'iplr' which uoderlies thn use of all t'asi'iuitnts that the owner of tin' east'ioent ('ailnOt [oat eri:t lv in(rease t Ia' 1)111(1011 of it upon t he-er cant

etate Or impose I htereon a new and :uh(li-ional burden, (17 Ant.........Easements,

f98: Hopkins flu' 1"lorist. Ito'. v. 1"leming. 112 Vt. 389. 26 A.2d 96; Derni(-r v. Rut lani! By. L. & P. Co., 91 Vt. 157, 110 A 1).

(hi' right of view of the owner or melt-

pant of the abutting property is limited to 911(11 right -is is appurtenant to that pi'op-eriv and ineludes the richt to display only goods or m lv ert ising niat ter pelt fining to business ('011(111 ('It'd t liereon H is :1 ppllrt 00:10

easelut'n t (lot's not i ncludt' the right I to dis-p lay ad veil isi ng mat t or foreign to :t business 'on' Int'l ed on t he pi'opei't y, and he could

not convey to this plamt ill a right that lie did not himself poess.

The :ttti'ihute of iiialienability or in-sepa i-ability of an ap au-tenant easo'inent was t-leai'lv set forth by I lie \ I ieliigan u-picnic Court iii the ease of .1!c('Iint'ie-iJor-sit oil ( ' wit.pan j t'. Ford ,l!O(Or ( 'ompan y.

In that ('tlSe the Ford ( 'onlpanv tihtajned ('lSCittefltS of ingress and egrt'ss from its property ovn'i- the t-ity street and under the

railroad (- (ninpanies propo'rtv in order to

('oust IUCI a grade separat a in and an Ufli icr-putss, to ('liable its employees to reach its

plant more easily and safely. The Ford Couipany awarc led a eonti'aet and work was sI ai'ted on the (-onstru(-tioit of the under-pass and grade sepitration. The Ford ('oni-pany then rescinded the contract and ninny mechanics liens were tiled by suheontractors against the grade separation and underpass sti'tiittii'es. The Michigan Supi'eiiie (otirt held that this easentent f ingress and egress

\V;is an appul-tenant eas('ineiit atlaehtefl to the land of the Ford Company and could not he separatei I from it, t-onst'queiit ly the easeiiic'nt was not subject to sale separate

and distinct f rom the land whit-It it served. The court said

This right of way or easena'nt is appurt nant to the property o f the Ford Motor Co in pliny. w Ii kb was boomd to const riot

11)11 (lOVe, lintl m:i jilt fill it . 1)11 I lieverl lie less it ('Oils t tut i's an incol'porea I right t at. I ached

294 %H,h. :90, 296 N. W. 792

36

OUTDOOR ADVERTISING

to and belonging with the real property of the Ford Motor Company. It is annexed thereto, and though it might pass as an inci-dent to it, it is a species of servitude in-capable of.existence separate and apart from the particular land to which it is annexed.

Such right of way and the incidents thereto may not be conveyed by the Ford Motor Company separate from the land to which it is appurtenant, but may only be conveyed by it in connection with such land. It cannot exist separate from it and cannot be converted into an easement in gross.113

In 1915 Judge Trent in Churchill v. Raf-ferty,114 demonstrated that the essential thing in billboard advertising is not the structures on which the commercial adver-tising is displayed, but its visibility from the public thoroughfare, and he drew the conclusion that this form of advertising is essentially a method of using the public streets and highways. Its success "depends not so much upon the use of private prop-erty as it does upon the use of the channels of travel used by the general public. Ostensibly located on private property, the real and sole value of the billboard is its proximity to the public thoroughfares. Hence, we conceive that the regulation of billboards is not so much a regulation of private property as it is a regulation of the use of the streets and other public thorough-fares."

The Vermont Court in the Keibro case 115

said that the advertiser was seeking to use the highway for commercial purposes analo-gous to the use made of it by common carriers and further that:

There is no inherent right to use the high-way for commercial purposes. State v. Gamelin, 111 Vt. 245, 13 A.2d 204; In re James, 99 Vt. 265, 132 A. 40; State v. Cap-lan, 100 Vt. 140, 135 A. 705. This is in accord with the holdings of the United States Supreme Court which has recently said: "Whether, and to what extent, one may promote or pursue a gainful occupa-tion in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment. The question is not whether the legislative body may interfere with the, harmless pursuit of a lawful busi-ness, but whether it must permit such pur-suit by what it deems an undesirable in-

113 254 Micli. 305, 236 NW, 792, 795 (1931). u' 32 P.I. SSO, 609 (1915), appeal dismissed 248 U.S. 591. 115 Sopra, note 108.

vasion of, or interference with, the full and free use of the highways by the people in fulfillment of the public use to which streets are dedicated. Valentine v. Christensen, 316 U.S. 52, 62 S. Ct. 920, 86 L. Ed. 1262." 116

The Connecticut Supreme Court said that it could not accept the Keibro decision:

As regards the incident of visibility we are not able to see wherein there is any essen-tial difference between advertising the land-owner's own business and advertising the business of another. The use of land abutting upon a highway for the maintenance of a billboard advertising the business of another than the owner is lawful and may bring a definite increment of value to the land. As an incident to the land which serves its beneficial use, the right is appurtenant to it."

The Connecticut court did specifically re-ject the Keibro holding but found the regu-lation in this case to be a valid exercise of the police power.

OUTDOOR ADVERTISING LEASES

A "lease" of an outdoor advertising site generally provides that the "lessee" shall have the exclusive right to use the land for advertising and to erect and maintain ad-vertising devices on it, together with the right to go on the land for these purposes.

Such an instrument although termed a "lease" has been held not to create a land-lord-tenant relationship because an essen-tial feature of a lease—the right of posses-sion—is not present.1118 The interest con-veyed by such an instrument has been defined as merely a license 119 or at most an easement in gross.12° Howevei., a New York court found that the wording of one such agreement "created an easement in the property, if indeed it was not a lease." 121

The essential thing the advertising com-pany gets and pays for is the permission of the abutting owner to use the visibility of his land, for without the right to attract the

110 Id., page 531. UT Murphy, Inc. v. Town of Westport, 131 Conn. 292, 305,

40 A.2d 177, 183 (1944). " Borough Bill Posting Co. v. Levy, 144 App. Div. 784,

129 N.Y. Supp. 740 (1011). 110 Gaertner v. Donnelly, 296 Mass. 260, 5 N.E.2d 410

(1936). Advertising Corp. v. Linzell, 165 Ohio St. 250 (1958). 120 Baseball Pub. Co. v. Bruton, 302 Mass. 64, 18 N.E.2€l

362 (lOIS). 121 Rochester Poster Advertising Co. v. Snoithers, 224 App.

Div. 435, 231 N.Y. Supp. 315 (1928).

PROPERTY INTERESTS

37

traveling public a right to erect and main-tain signs could have no possible value.'22

In a case between private parties, where the defendant had purchased land subject to an outdoor advertising lease (which pro-hibited any obstruction of the plaintiff's sign) and subsequently purchased the ad-joining land and erected a sign thereon which partially obscured plaintiff's sign, the court said that:

In the absence of statute or contract the general rule is that a landowner may, by building on his own land, deprive the ad-joining owner of the view which he had before the structui'e was erected without subjecting himself to legal liability.123

In a recent Ohio case," the Ohio Supreme Court held that an advertising corporation, which had entered into an agreement with a landowner to erect advertising signs on

" Churchill and Tait v. Rafferty, 32 11.1. .580 (1915) General Outdoor Advertising Co. v. ])epartment of Public Works, 280 Mass. 149, 193 N.I. 799 (1935).

Southern Advertising Co. v. Sherman, 308 S.W.2d 491 (Ten,,. App. 1957).

124 Advertising Corporation v. Linzell, 168 Ohio St. 250 (1058).

the premises, was not entitled to compensa-tion when the land was deeded to a rail-road and the Director of Highw'ays ordered the advertisements removed. (The land-owner had been compensated by the State for the taking of his land.)

It was alleged that "plaintiff was given no estate or interest in and no control or right of possession of the premises except the license or permission above mentioned." Since the plaintiff advertising corporation did not contend that it had any such interest in the land, the Court assumed it did not.'

As to the possibility that the advertising corporation had acquired a valuable lease-hold interest by entering into the agreement with the landowner to erect advertisements, the Court pointed out that the agreement reserved in the landowner the right to can-eel, upon30 days notice, in case the real estate was sold or clisjosed of. The plain-tiff advertising corporation did not contend that it had not been given adequate notice to remove its structures or that it had ac-quired any interest in the real estate.

REGULATION OF OUTDOOR ADVERTISING UNDER THE POLICE POWER

According to Nichols, "In the exercise of the police power the owner is denied the unrestricted use or enjoyment of his prop-erty, or his property is taken from him because his use or enjoyment of such property is injurious to the public welfare." 125

In general, the principles which govern and with which a valid police regulation in comply may be summarized as follows: 126

The end sought must be the promotion, preservation or protection of one or more of the subjects within the power, namely, public health, public safety, public morals, public welfare, and public comfort and convenience.

The subject matter at which the regula-tory measure is aimed must present a fac-tual situation which lies within the purposes by virtue of historical fact, present day commonplace fact or modern scientific fact—all in the light of changing economic and social conditions.

The regulation, in its provisions, must bear some real and substantial relationship to the accomplishment of one or more of these police power purposes. If not, then it may be said to be a merely arbitrary, un-reasonable interference with personal or prQperty rights.

If by these tests the power to enact the regulation is established, then the policy of the legislation, its wisdom or folly, its severity or weakness, are not within ju-dicial control.

As to classification under the police power, the measure must operate alike upon all who are in the same class, condition or circum-stance. This does not eliminate the power of choice in the legislature of such group or class as most urgently requires regulation. Excepting a group or class must in some way relate reasonably to the purposes of the act.

There is always a presumption in favor of constitutionality.

Applying these principles it is important to remember that while the meaning of con-stitutional guarantees never varies, the scope of their application must expand or contract to meet new and different condi-

NICI-lolS, eSliNENT nosisiN. §1.42(2), 3rd Ed., 1930, discussing the distinction between eminent doina in and the pol1

0̀icepower.

S1AUI4EII, CONST1TIJ'riON.'i lAS' 573 (1941).

tions. A degree of elasticity is thus im-parted, not to the meaning, but to the ap-plication of constitutional principles. The police power is based on public necessity; it is not limited to conditions as they exist at any one particular time.'27

The purpose of the police power is gen-erally stated to be the protection of public health, safety and welfare, with public morals, comfort, and convenience some-times added. However, in the early out-door advertising cases, the courts narrowly construed the purposes for which the police power could be validly exercised,128 and it was generally assumed that the prohibition of unsightly (not indecent) advertisements was beyond the police power and an un-constitutional interference with the rights of property.'29 Many courts looked upon the regulation of outdoor advertising devices as having an aesthetic purpose which they felt would not justify an exercise of the police power.'3° A statement representing this earlier judicial attitude was made by Judge Swayze of the New Jersey Supreme Court., who said in 1905: "Aesthetic con-siderations are a matter of luxury and in-dulgence rather than of necessity, and it is necessity alone which justifies the exercise of the police power to take private property without compensation." "I

Early prohibitions of signs adjacent to boulevards, pleasure drives or lredomi-nantly residential streets,132 and visible from a park or parkway '' were held im-

Chicago &. Altos 14.11. V. 'I'ranbarger, 238 U.S. (ii (1918) ; Nol,le State Bank v. Haskell, 219 U.S. 104 (1911).

'-"5 In re Wilshire, 103 Fed. 620 (C. C. Cal., 1900) ; Cite of Rochester v. West, 29 App. Dis'. 125, 51 N.Y.Supp. 482 (1898), sff'd 104 N.Y. 510, 98 N.E. 673 (1000).

FISEUN1), TI-IC police i'OWEIt, §182 (1904). 0 Curran Bill Pasting Co. v. l)esver. 47 Cob. 221, 107

Pac. 261 (1910) ; \'ar,iev & Gree,i v. Williams. 155 Cal. 318, 100 Pac. 867 (1909) ; Chicago s'. Gunning System, 214 III. 628, 73 N.E. 1035 (1905) ; People eN. rel. Wineburgh Ads. Co. v. Murphy, 195 N.Y. 126, 88 N.E. 17 (1909).

" Passaic s'. Paterson Bill Posting Co., 72 N.J.E. 285, 287, 62 AtI. 267, 268 (1905). But see concurring opinion in Lionshead Lake s. W'ayne Toss-nship, 10 N.J. 165, 89 A.2d 693 (1952) which disavows the na crow doctrine of the Passaic case.

152 Chicago v. Gunning System, 214 TIl. 628, 73 N.E. 1035 (1905).

— Coinn,onwealth v. Boston Aslrertisii,g Co., 188 Mass. 348, 74 N.E. 601 (1905); HaIler Sign Works v. Physical C Itsre Training School. 249 Ill. 436, 94 N.E. 920 (1911) People r. Green, 85 ApIs. Div. 400, 83 N.Y. Supp. 460 (1903).

38

REGULATION UNDER POLICE PO\VER

39

PLATE D

Exit lane from Schuyltcill Expressway to Gladwyne, Pennsylvania, Under the National Standards, outdoor advertising devices are not permissable within 2 miles of an exit roadway.

Pl'Ol)('l'. .1cgulatiuns linititig the height, size, P0ti011 ftltd locatioll of sighs 1,4 and h'('quil'ulg S('t l)l(i'k5 fi'oni the street \vel'e itivalidatt'd, as \V('l'c various i'cgulations uniting thU 5i'/A' (If 5ignI)IIUrd5.1 " hit' ('ases ('xpr('ss('d thc Vi(.'\V that flit' i't'giilat ions \vel'(' ('ncl'oaelllnents 1_lp(1fl pl'i¼'71t(' pi'opel'ty rights not itstifit'ih by lit'iiltli, saf('tV or \Vcltal'e consid('h'itiohis and hence invalid,

\\litle still reJcetiig ii('stli('ties by itself, as it sufficient basis for the CXt'l'('is(' of flit' police power, the courts ht'gati ht'(ladeflillg the f)l(liCL' l)O\Vei' ('(lilcept to ihlClllIl(' (llltdOI(l' adv(l'tising regulation. III 1911, the \Iis-soon upl'eno' Court ill 11w ease of S/. Lows Gunninq ;th'ci/sinq CO. e. St. (l(.'('lal'C(t an ()h'(hihiitll('(' l'egllhatiflg (lie size, location and means of construction of ad-vent ising Stl'uctul'es reasonable. The court fountil that 511(11 Stl'Ul'l Ul'('$ were it public danger iii that : there was a fii'e li:izat'd, (hall-get' ('xisted front high winds, waste iitattei'

V. l'l,rs,u, ((ill l'u.ilii,g C.. 72 N_Ti.. 25, 12 .511. 207 190-5 I.

''° (tire:,,, 1(111 l'r,slii,g S hlis)ril,uli,,g Co. v. hover. 47 1,. 221. 107 ('ru. 261 (1910 ) (10 fe) Ir,,msti,el or

hoil,ling) (hi rrig,, v. (liiutiitg Svst,,r,. 251 III. 125. 73 N.E. Il'35 (lffl$) ( 2 5 feet Iron, (,njl,Iing line) ('rarvi,.r'I V.

71 k,Ul. 77,41, :13 i':,,. 1741 (I 993) I seil,uek 5 ivel thai, hrigIt of sign) Stal, v. WhiiI,ok, 114 4 N.C.

512. 63 5.12. 123 ( IIIOS ) (2 f,etgrrr,t,'r tItSi, 6-igl,l of sir,,,) 01' F,,l,ral A,)v,r I irii,g (tp. V. Faji l:,wi,, S ((jo,. 619. ISI (II. 2,5 (130) (10 5,) 11oill sIred line).

V' 1_tier,,, 11)11 l','st og s il(s) ri(titiig Co. v. OvIlver, 17 ('nb. 221. 141$ 101. 201 (11414,) (S mo) fl,aXiIt,lit,i ltdgI,) and 23 Itt,,) ,nr,xj,n,,n, length) Chicago v. I1,,i,,ri,tg Ss I,n,. 211 III. 125, 73 N.E. 1,435 (1)405) (II))) rIU:U0 I,eI of a

137 235 Mr. 99. 137 S.W. 929 (1141 1 .).

U ('('111(10 Ia tes I a 1(11111(1 tI am, t hi cv a f1'ots lid slielten' for ('l'iIlllflals, ('onccaled imlliOi'al acts, and they often llhs(rUctec light and air. 1-lere was a strong defense of niuhlicillal outdoor advertising regulation based onì the 1fl11'plIl't('d risk to lIealtlI, safety and mot'als svliichi \VCIN' 15(1(1 sufficient to justify the cx-ercise of the police power. in the same \'ei(l' silIlIlal'IV favorable decisions \\'el'c n'endcrell

T,' ° \(ll'th1 ('iit'ohina °' 751111 New \ot'k lb ('Uses.

in 1917 the Supt'ena' Court of the inited -tates in the case of Thonos ( 'usae/1' ('0. V.

( 'hi('(lfJO hit'ld that lIutII((ol' ad'en'tisiiig niighlt he t'lltil'CIV lIl'ohlihitell in i'c'sillential hloI'ks. ( 'hliI'aglI hall passell an ol'dihlance \VhIi('Il i't'quii'ed that before till athvet'tising device ('(11111 he ei'eetell ill it pi'mtanilv resi-(h€'litial chisti'ict. the coilsenit of bi ltitjoh'ity of (lie o\Vnet's of adjacent pl'opei'ty had to be (llltain('d. Again the court pointed out the fit'e. so fetv and I mona Is fact on's which i fiin-tiishie I a basis for i'egiilat ion,

Public safety has been citcil by tile cOtIl'tS as justification for llphiollling set back re-

Kr l',,rI, S,v,l_',. l;3 Tex. (rio,. l{e1. 2s5. Ill SW. 2-1-1 (1)411 ), ,nvolvig l,glla) ire: of II,: size, lme'ul jot,, eon. SI C'S) jon 111,1 flb:,ib,tetl:iit,,' of hillbonnis.

sta v. Sba1,h, 17,7 N.C. 67, 73 N.E. 112 (1911) upl,,,ldn,g ,isv ,,r,li,,anem' ovl,i,I, i ,, iii,,, i I,iIIIs,ar,Is to be at

-i iil,t's ott II,, '' F'iOl, .\venu, (,,:,el, Co, v. N,,v York, 221 U.S. 407,

:11 S. Ct. 7)b)4 (It'll), ,iIthtrl,lii,g ,,r,i,l,00cl' probihiting vel,ieles

from ,Ijsl,iavj,,g :,rleer( 0111)7 iisilt,r ,it I I,eir OX

ieri,,r ,murfae,s on tI,, Ira5j5'l :r5si)I, lraftie rIui,gers. 1442(0 L'S. 52)7 (11517).

40

OUTDOOR ADVERTISING

quirements which had the effect of prevent-ing the maintenance of advertising struc-tures too close to sidewalks,'12 and for up-holding limitations on height and area of such structures.14'

The United States Supreme Court in St.. Louis Poster Advertising Corp. v. St. Louis 114 upheld a city ordinance limiting the size, height and placement of billboards and requiring a permit for their construc-tion. Here the court stated that making billboards safe from fire and wind may not necessarily exempt them from regulation and adding that a municipal regulation may include incidental reasons founded in part on aesthetics.

As early as 1904, it had been suggested that the general assumption—that the pro-hibition of unsightly advertisements was beyond the police power—was of doubtful validity because the police power was con-ceded to be adequate to restrain offensive odors and noises; therefore, a similar pro-tection to the eye would not establish a new principle but carry a recognized l)rifl-ciple to further application.145 The courts, however, not only denied aesthetics as a valid purpose for exercising the police power but seemed to look beyond the stated pur-poses of outdoor advertising regulations and to hold that the legislative bodies had been moved primarily by aesthetic motives; therefore, such regulation was invalid 146

Unqualified approval of the regulation of billboards for aesthetic purposes is found in the case of Churchill and Tait v. Raf-f8rty.1.

4 ' The Supreme Court of the Philip-pines upheld the validity of an ordinance authorizing summary removal of billboards

142 St. Louis Poster Advertising Co. V. St. Louis, 249 U.S. 269, 39 S. Ct. 274 (1910) (14 feet in height, 400 feet in area) ; In. re Wilshire, 103 Fed. 620 (0.0. Cal. 1900) (6 feet in height) Whitniier & Fllbreek Co. v. Buffalo, 118 Fed. 773 (C.C.N.Y. 1902) (7 feet in height) General Outdoor Advertising Co. v. Dept. of Public Works, 289 Mass. 149, 193 N.E. 799 (1935) (500 sq. ft. area) City of Rochester v. West, 29 App. Div. 125, 51 N.Y.Supp. 482 (1898), afid 164 N.Y. 510, 58 N.E. 673 (1900) (6 feet in height).

143 St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269 (1919) (15 feet set back) ; Cream City Bill Posting Company v. Milwaukee, 158 Wis. SO, 147 N.W. 25 (1914) (set back greater than height of billboard).

144 249 U.S. 269 (1919). 145 Fitness, Tire Porice Powme, §182, 186 (1904). 140 See e.g. Varney & Green v. Williams, 155 Cal. 318, 100

Pac. 867 (1909) and compare discussion of trend in Murphy. he.

V. Town of Westport, 131 Oonn. 292, 40 A.2d 177

(1944). 14232 P.T. 580 (1915), appeal dismissed 248 U.S. 591

(1918).

which were offensive to the sight or other-wise a nuisapee, by stating:

Without entering into the realm of psy-chology, we think it quite demonstrable that sight is as valuable to a human being as any of his other senses, and that the proper ministration to this sense conduces as much to his contentment as the care bestowed upon the senses of hearing or smell, and probably as much as both together. Objects may be offensive to the eye as well as to the nose or ear. Man's aesthetic feelings are constantly being appealed to through his sense of sight.148

The United States Supreme Court, in Vil-lage of Euclid v. Ambler Realty Co.'," im-

licitly accepted the exclusion of billboards from areas zoned for residential purposes. The case, a landmark in the zoning field, upheld the over-all validity of 'a compre-hensive zoning ordinance which excluded advertising billboards from four of the six zones which it created. The court did not refer to outdoor advertising in its opinion nor was it directly in issue. Nevertheless its exclusion was implicit, and the court stated that, except as to matter directly in-volved, it would not search for means of holding a zoning ordinance invalid, but would examine it only in its general scope.

Prohibitions and requirements have been upheld as being necessary to the safety of highw'ay travelers or as proper for the pro-tection of parks."° Signs projecting over public ways were prohibited, and authority to remove signs without its constituting a taking or damaging of property requiring the )ayment of compensation was upheld.15' In Murphy, Inc. v. Town of Westport 1.52

the entire exclusion of billboards from a business district w's held valid.

In such cases, it was held that a legisla-tive classification will not be deemed Un-

145 Id. at 608. 10 272 U.S. 365 (1926). 150 General Outdoor Advertising Co. v. Indianapolis, 202

1sf. 85, 172 N.E. 309 (1930) (prohibition within 500 feet of any park, parkway or boulevard) Town of 3Eiltori v. Donnelly, 306 Mass. 451, 28 N.E.2d 438 (1940) (prohibition within 300 feet of a public way if more than 5 feet high or 5 feet long) Kelbro, Inc. v. Myrick, 113 Vt. 64, 30 A.2d .527 (1943) (prohibition within 300 feet of intersection or 240 feet of center of highway).

un 1426 Woodward Ave. Inc. V. W'olf, 312 Micli .852, 20 N.W.2d 217 (1945) Preferred Tires v. llempstead, 173 Misc. 1017, 19 N.Y.S. 2c1 874 (1940) Mallary, Inc. v. New Rochelle, 184 Misc. 66, 53 N.Y.S. 2d 643 (1944) aff'd 295 N.Y. 712, 65 N.E.2d 425 (1946).

'' 131 Conu. 292, 40 A.2d 177 (1944).

REGULATION 17NDEI1 POLICE POWER

41

-

I )

1 - / 1 1_•

'I

•, - • '.:--':' .t_-, ...5.•.y.

t-,' —:__ — _• . -

PLATE E

US 240 at Byattstown, Maryland. Note especially how the design and location of this section of Interstate highway conforms to the contours of the land and the terrain. Special standards with respect

to outdoor advertising apply to a situation of this kind,

i'ctsonahle \Vhi('ll ('x('cpts ii'oiii regulation or prohibit ion outdoor dvcrtisiig (ICV1CCS lluliflt.iliflC'd 111 ('OflUCetioll with a husillcis operated at, the saiiie place and Ha' hllrdkll of showing unreasonableness of (]assIIiCa-hull resides Ilpuli One contesting the validity of a classification.'°'

'l'hus, the earlier attitude of the courts changed and the •i UdiCiilI'y seemed to fit VI 1'

legislative actioll. The showing of an abuse of (hiseretion was aliliost necessary to iii-validate such Ietislaliun.1

With this ('Ilallge ('1111IC more eases Vi1i

tiating l'egu]atiOfls. In I 930. the (;C1((101

Outdoor Adt'ertisin.q Co. 1'. In(lulnupotls I ease upheld a city ordianee prohlih)iing hillhoai'ds within 500 feet of pai'ks, park-ways aIl( I boulevards. The i'oiii't followed

the priit'iple that iitiiiii('iioil i'oi'poratioiis may rea1)011ilblV control hillho:ti'ds provided sue I-i regu In H tins Ii a \'C SIll lit' i'east in able I e 11(1 -

ciley to protect the public SaIetV, health.

Ifrphv Inc. V. tiny,, ,il \V(.0 iu . 131 (en. 292. -II) .1.93 177 (ill-I-I) (lineral l)uIl,or .lIvriisir,g Co. v. in'- parteicut of Pull ic IVoiks. 2s1? Mess. 139. 013 N.E. 71)9 (11135) 1(e11ro, Ilic. v,Mv rick, 113 Vt, ci. 30 •I.2II 597 (1943). 1_i,ited .\dvi'ii sing Corp. v, liiiroiigli of liarilan, II N.J. 11-I. 113 .1.31 362 (1952).

1lilIi'liv. Inc. V. Town of lvii) jut. 10 C,,,,,. 292, -III t.2iI 177 (11)4-I), iii'' like v. Cils' of Los .1 g-l's, 2111 ('al. 233 ,c , 21)1 1'..l1)3 (1930) I.ockar,I V. Clivof l.oii Angles, 33 (Sil.23 453. 202 P.2i1 IS (1941)).

'- 202 led .1)5, 172 N.E. 309 (11)31)).

noi'als or general vellai't' and tb not Jill-

iteeessai'ily iivaile property rikhits. Con-sideriiig this ''general veltai'e' aspect, the ('olIl't not-cd its broadened basis as a pur-pose for i'egulal ion 'lien it sI alt'd

tTiidei' it ]ll)('l:IIlZ('lI lulls) 1101 ioll of the

gc'lIer:tI veI (arc' 1>1111 u,.es of i'Iate and 1i'iI- 0101 Constiltilions thele IS ft trt'lni in the

IlIOiiel'fl iii'y'iiitis (vlijc'It we :1pl'ovl1) to

foster tili(i('l' liii' tohiec' POWc'l'. Illaesil)(1ic

911(1 cultural siik' of iflllni'itvtl tieV('IOIi-

1110111—I 0 1 ir('lelIt a I-lung that otI'r'nds Ow sense of sight ill flu' i,ftIiu' 11011110....,) .i i 111111)1 1011. 011011(15 Ille 1)01151'- III iu':lrIilg :iiiil

511111 h g.i

Iii 1932, the United Slates Suprcllle Court upheld a [tah statute vlin'1t iiiade it iuilav-ful to advel-tise lulniei'o products on bill- hoal.dsl '\e\VSpapcI' allv('l'tising of such products was speeilieah!v exeiiipted .Agaiiist the challenge of lln('(1ual protection the (9lu1't stated it to be .....a reasonable ground of Cl1tssiliCittioil thiM. the State has p0\'ei' to legislate \Vitli respect to p('l'solls in cci'taiii situations and hot with respect to I hose in a (hiflel'cllt. nile."

The regulation was held 1101 to violate the

Id. at 9310, 172 N.E. at 31 2. l'ackr ( rj'.'ratioi, v. ITI,il,. 21)3 IS. 101 (1932)

affirininig 71) I'm), 177, 2 I'.2ul 113 (it'll). 'b-' Id.

42

OUTDOOR ADVERTISING

interstate commerce clause, because its ap-plication began after the interstate move-ment of the poster had ceased. Such regula-tion did not violate the interstate commerce clause because it interposed no barrier to essentially local advertising.'59

A distinction of the State court which the United States Supreme Court quoted favor-ably is also noteworthy:

Advertisements of this sort are constantly before the eyes of observers on the streets and in streetcars to be seen without the exercise of choice of volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of news-papers and magazines, there must be some seeking by the one who is to see and read the advertisenlent. The radio can be turned off, but not so the billboard. • a

In New York in 1932 another significant case, Perlmutter V. Greene,'° 1' was decided. Although the case primarily upheld ad-ministrative action of the State Superin-tendent of Public Works in screening a billboard at a dangerous curve as a safety measure, it is also noteworthy for its sub-scription to the growing belief that the beautification of highways is an important auxiliary to their utility.

The year 1935 brought a decision to long litigation between the Commonw'ealth of Massachusetts and 23 firms engaged in the outdoor advertising business. In a 57-page opinion, the Supreme .Judicial Court in Gen-eral Outdoor Advertising Co. v. Department of Public Works 111I sustained the validity of stringent regulations of outdoor advertising adopted by the State Department of Public Works and of a by-law adopted by the town of Concord.

Briefly, the provisions of these regulations and by-law were as follows:

License mci Permit Clcewses: The regula-tions—not the by-law—provide that no one shall engage in the business of outdoor ad-

159 Id. at 111. °° Id. at 110.

'°' 259 N.Y. 327, 182 N.E. .9 (1932). 102 2S9 liass. 149, 193 N.E. 799 (1939), al)peal dismissed

290 U.S. 543 (1939). Gardner, The Mssachnsetts Ililtboord Decision, 49

tlarv. L. Rev. 809, 974 (1930).

vertising without a license, or put up a billboard without an annual or temporary permit.

Fixed Restrictions: Both the regulations and the by-law là)' down it system of fixed rules in the nature of a code of legislation specifying in detail where outdoor advertis-ing may not be placed.

Discretionary Restriction: The regula-tions—not tile by-law—reserve to the Public Works Department the power to decide judicially in connection with each separate application for a permit whether "the un-usual scenic beauty of the territory," or any other material consideration, requires the denial of a permit on the ground that a sign in that locality "would be particularly harmful to the public welfare."

The effect of upholding the regulations was to require among other things the re-moval or relocation of an estimated 75 to 90 percent of all billboards in that State,'04 in-cluding the removal without compensation of one over the Boston Common originally costing $35,000 to construct and erect in 1927, and for which the owners paid $1,000 a month.'°5

Prior to this decision, precedent in Mas-sachusetts had been somewhat to the con-trary, but agitation for change was present. In 1905 the court had struck down a Metro-politan Park Commission regulation pro-hibiting commercial signs—except signs not exceeding 20 feet by 15 feet advertising the property on which they stood or some busi-ness thereon—visible from a parkway on the ground that it operated to take property for public use without compensation.'00 This Opinion stated: "If the police power will not justify a taking of property without compensation to promote the education of youth, it cannot justify such a taking for the promotion of merely aesthetic purposes." 107

However, in 1913 the Massachusetts Consti-tution was amended lOS by an addition reading: "Advertising on public ways, in public places and on private property within public view may be regulated and restricted by law."

In 1919 the justices of the Supreme .Judi-cial Court advised that the amendment au-

502 General Outdoor Ads'. Co. V. Dept. of Public Works, 289 Mass. 149, 193 N.E. 799, 811 (1935).

'° Id.. 193 N.E. 799, 822. 100 Coi,,moi,weaith v. Boston Advertising Co., 188 Mass.

348. 74 N.E. 001 (1909). '5 ' Id. at 352, 74 N.E. at 003. 105 MASS. CONST., Amend., Art. L.

REGULATION UNDER POLICE POWER

43

thorizecl the legislature to restrict outdoor advertising reasonably, but not to prohibit it altogether.109 The legislature then author-ized the commissioners of the State Depart-ment of Public Works to make state-wide regulations, and cities and towns to adopt ordinances and by-laws not contrary there-to.170 Signs or other devices advertising or indicating either the person occupying the premises in question or the business trans-acted thereon, or advertising the property itself or any part thereof as for sale or to let and which contain no other advertising matter were specifically not within the en-abling authorization. The regulations and by-laws were adopted by the Department and the town of Concord in 1924.

From these circumstances then, the Su-preme Judicial Court of Massachusetts held among other things, that the: (1) State licensing requirements were a valid exercise of the police power; (2) the fees charged were reasonable; (3) set back requirements varying as to size and location were not ex-cessive; (4) the requirement of written ooi-sent from owners of neighboring frontage was reasonable; (5) the regulations were not prohibitory in substance or effect as they provided ample opportunity for the exercise of outdoor advertising; (6) a town by-law prohibiting billboards near parks and parkways even though not shown to be traffic hazards or detrimental to property value was valid; (7) size and spacing regu-lations were reasonable. The opinion reads in part:

It is, in our opinion, within the reasonable scope of the police power to preserve from destruction the scenic beauties bestowed on the Commonwealth by nature in conjunc-tion with the promotion of safety of travel on the public highways and the protection of travelers from the intrusion of unwelcome advertising. 7'

The court used some of the older argu-ments to sustain these regulations in holding that some setback was necessary to prevent

'°° Opinio,, of the Justices, 232 Mass. 605, 124 N.E. 319 (1919).

70 MASS. ACTS 1920, ch .545; Di. 3924, ci,. 85 §i327, 334, 490. The sta totes, with subsequent anie,idments, are co,,, soiidated in MASS. ANN. LAWS (1954) ch. 93, §i29.33.

1fl Ge,,erai Outdoor Advertising Co. Inc. v. Department of Public Works, 289 Mass. 149, 187, 193 N.E. 799, 810 (1935).

billboards from falling upon the public ways 172

The court further discussed the broadened scope of the police power stating:

Even if the rules and regulations of bill-boards and other advertising devices did not rest upon the safety of public travel and the promotion of the comfort of travelers by exclusion of undesired intrusion, we think that the preservation of scenic beauty and places of historical interest would he a sufficient support for them. Considerations of taste and fitness may hea proper basis for action in granting and in denying permits for locations for advertising dlevices.173

In addition to the safety of public travel and the preservation of scenic beauty and historic interests, the Massachusetts court discussed the promotion of the travelers' comfort by the exclusion of undesired intru-sion as an object of advertising regula-tions: 174

The constitutional i'ight asserted by the plaintiffs is in the main to conduct their business of outdoor advertising as they have been accustomed. . . . That business has pe-culiar features. One is that it depends en-tirely for its success upon the occupation of places along the sides of highway and near parks and similar public places. The master 175 macic this finding : "Bill-boards are designed to compel attention. The advertising matter displayed upon them

is . . . designed to intrude forcefully and persistently upon the observation and attention of all who came within the range of clear normal vision. The only real value of a sign or billboard lies in its proximity to the public thoroughfare within public view...... That finding is abundantly sup-ported by reported evidence. In essentials. it is almost, if not entirely, a matter of common knowledge....The right asserted is not to own and use land or property, to live, to work, or to trade. While it may comprehend some of these fundamental lib-cities, its main feature is the superacideci claim to use private land as a vantage ground from which to obtrude upon all the public traveling upon highways . . . an un-escapable propaganda ...with the ulti-mate design of promoting patronage of those advertising. Without this superacicieci claim, the other i'ights would have no utility in this connection. , , iTS

'v" 1,1.. 103 N.E. at 817, 518. Id., 193 N.E. at $10. 51.7. Id., 103 N.E. at 816, 817.

175 The master had he,, id es ide,,ce for 114 (lays, had viewed advertising devices in d ilfere,,t sections of the State i,ud had filed an eatensire report. §1, Record op. 407.439.

17 General Outdoor Advertsi,ic Co. Inc. V. Depa ,t,s,e,,t of Public Works, 289 Mass. 149, 193 N.E. 7997 S08.

44

OUTDOOR ADVERTISING

It is manifest that the rules and regula-tions . . . operate as a severe limitation upon the business of the plaintiffs as hereto-fore conducted. These rules and regulations were promulgated in the exercise of the police power ... they1 must have some reasonable basis and be designed to accom-plish a permissible end, in order to be valid....One basis, according to the find-ing of the master ... is that the safety of travel upon highways is promoted....An-other basis ... is that they tend to protect people traveling upon highways from the intrusion of public announcements thrust before their eyes by signs and billboards.

The right to own land and to use it according to the owner's conception of profit in the main is a part of the liberty secured to the individual under the Constitution; but that right is subject to legislative regula-tion in the public interest....The right of the traveler upon the highways to a peaceful and unannoyed journey, so far as concerns advertising on private lands is recognized by Art. 50. To adjust the conflicting in-terests of the public and of the individual is a proper legislative function. . .

The validity of controlling outdoor adver-tising for public safety objectives can hardly be questioned, but as the safety fea-tures shade into other concepts inherent to the public welfare the status of the law is not as clear. Drawing clear distinctions as the Massachusetts court has done brings the problem into clearer focus.

Following this development in the Mas-sachusetts law, the Lexington v. Governor case 178 upheld the exclusion of an attorney's sign from a residential district in Massachu-setts, the court stating:

Doubtless esthetic considerations play a large part in determining that advertising signs should not be permitted in such an area—these would seens sufficient to ex-clude such a use. The beauty of a residen-tial neighborhood is for the comfort and happiness of the residents and it tends to sustain the value of property in the neigh-borhood.170

Other cases in New York,180 Louisiana,181 Pennsylvania,i82 Michigan 183 and Minne-

" Id., 193 N.E. at 813-815. 175 295 Mass. 31, 3 N.E.2d 19 (1936). "s Id. at 36, 3 N.E.2d at 22. 158 Preferred Tires v. Rempstead, 173 Misc. 1017, 19

N.Y.S.2c1 374 (S. Ct. 1940) vertical sign over sidewalk prohibited on aesthetic (which apparently would have been sufficient) plus other considerations.

151 New 0,-leans v. Pergament, 198 La. 852, 5 So.2d 129 (1941) required a per,nit and fixed requirements for signs in historic New Orlea,is.

m Coni,uonwealth v. Trimmer, .53 Dauphin Co. Rep. 91 (Pa. 1942).

181 1426 W'oodward Avenue Inc. v. Wolff, 312 Mid,. 352,

sota 184 from 1940 to 1950 show the willing-ness of courts to predicate, if necessary, the validity of police regulations upon aesthetic considerations.

Two significant decisions were handed down in Florida in 1942. In John. A. Swisher & Son, Inc. v. Johnson 1115 a statute banning advertising structures within 15 feet of the right-of-way of State highways was upheld. The decision is based upon safety, however unlike previous cases predicated upon pe-destrian safety this case was based upon the safety of the motorist. The court stated: "No property . . . is taken, but the use of property is regulated and restricted under the police power of the State to conserve the safety of highway travelers. ." 186

In the companion case of Hav-a-Talnpa Cigar Co. v. Johnson,'87 Chief Judge Brown wrote a concurring opinion in which he cited aesthetic grounds as a valid basis for up-holding the validity of such regulations. He stated: "I think the time has come to make a candid avowal of the right of the legisla-ture to adopt appropriate legislation based on these so-called aesthetic but really very practical grounds. 188

In 1944, the Supreme Court of Connecti-cut 189 refused to invalidate a zoning ordi-nance which excluded billboards entirely from the business district and upheld the validity of aesthetic considerations playing a part in such regulations provided other factors in which the use of the police power oould be justified were present.

From an early date, courts followed a rule of their own making that police power legis-lation adopted for aesthetic purposes was invalid. The Passaic v. Paterson Bill Post-ing Co.'°° case typifies this line of thought. Later cases (not necessarily relating to ad-vertising) held that while aesthetics alone would not justify use of the police power, such considerations might be utilized along with other factors justifying its use.19' Some

20 N.W.2d 217 (1945) prohibited sign projecting too far over sidewalk.

Oscar P. Oustafson Co. v. Minneapolis, 231 Minn. 271, 42 N.W.2d 809 (1950) regulation of overlanging signs.

155 149 Fla. 132, 5 So.2d 441 (1942). 150 Id., 5 So.2d at 446. 1S7 149 Fla. 148, 5 So.2d 433 (1942). 'tmId., 5 So.2d at 439 see also Merritt v. Peters, 65 So.2d

861 (Fla., 1953). 155 Murphy, Inc. v. Tow,, of W'estport, 131 Conn. 292,

40 A.2d 177 (1944). 0 72 N.J.L. 285, 62 A. 267 (1905).

181 Brougher v. Board of Public Works of San Fra,,cisco,

..

41

PLATE F

--

ItE(ULA'I'l(.)N UNDER POLICE POWER

45

Wilbur Cross Highway in Connecticut. In Connecticut. as in other States, a license Is required to engage in the business of outdoor advertising,

rourts added the (jUalifleatiolt that. aesthetic

purposes eouii I not be the motivating fiu-

tor.192 Other courts took the poSition that

where aest liet es are a factor ti ev nis I st be considered and the courts of a few states

have iridicatc'd that they voti1tI have held

pal'tietllLlr regulat ions valid on nest hetic

grol I 111 Is a lone if it hw I been necessary

As a matter of practice however, is not

the ease rare when a desirable regulation

cannot be lustified by some purpose within

(lie scope of puhhc health. public safety.

1117 (Sil ..\pp. 15. 290 I',u'. 140 (1930) ; Welch v. Servo-v. 211 1.5. 9), 53 I. El. 1123 (1)109) New Orleans v, Pry- grIllirir). 199 In 559, 5 So.2r1 129 (1911) ; Ur'rir'ral OrrtrIr,rrr 01 vr'rtisiiig Co. v. 11)11, of Public \Vr,rks, II Mae,.. 149.

193 N.E. 7)61 (11135, s;rjrrsr/ rt(smiee,I 991; U.S. 542 (1985) \VnIi,.,rli v. I0iii, :11) N.Y. 2s5, 15(1 N.E. 120 (1925); 'i-ire v)-,.s,-r, 119 001,, 5). 025, 149 NI- MI (1025): Wet Iiirw. lIlly-k Co. v. (liv ri _)r-xanrlrja, ill) Sri. 271, 11(2 5. I,. 551 (51(37), rip/ru! ,I,urri i4.o-dS(l'.) IS. 055 (1937), reheat-up ri,'rned 302 U.S. 751 .:, S. It. Isul (1935) ; An- Iro011irrirs 56 ..1..l1. 16 105 AIR. 13, I) . .CL.Ic.91 063. 970: 1,11) '/. 150 .%.I..l(. 551,

1'2 Wrrivr-r ire Sign Works v. City of Bir,r,nrt)r-1,h Ilifl,, 2711 Mich. 2(15, 271 N.V .52'.) (1937); Frkr-hkorjr 1 'rarer reef ion Co. V. (.n,iiibr'rt .315 Such. 556, 21 N.W,2I 20)1 (1946) Ililelurir v, I);iklnrtrrl Towrrslii, .32)) Mid,. 331, 48 N.W.2,i

sr ilarir-v k (Srsey Co. v. 'town of Millon. :12-1 Mass. 4411. 57 N.E.2r1 1) (1949); Contier y. Cliv ri University Park, 142 S.)V.2ri 71(1) (Tea. Civ. App. 1910) ; Ktanhz V. Town of .\rnh,-rsl. 1112 Slice. 012, 911 N.V.S.Srt 512 (1945) roar v. City of Carrollton, 211 S.W.2'1 9711 (Tv-a. Civ. .\)rp. ill -IS).

1CI Sinru' v. lily of Nw OrOrairs, 154 La. 271. 97 So. .1.111 (1923); ()enet- jl thariror .lrlvrrl chirp Co. V. ()pt. of Subtle lVrrrka, 259 51 Icc. 1 -59, 193 N.E. 799 (1(351, appeal '/0-iui.-oed 296 U.S. 5-)3 (19350 : l'rcierrr'rl 'tires, liii'. V. Villag(! rI )ir-irpsearl, 173 Misc. 1017, 11) N.V.S.2d 871 (111-10).

public IloIrais ni general welfare in its broadened IIIS)(h(i'n sense? The St. Loi.is Givininy Ai/i'eiiisinq Co. i.. St. Loii,s case

is ottell cited for the pl'oloisitiois that. bill-

hoards are (l(_'l('Iil'IOUS to health. tiiorals 111111

safety 1o't'i1it'tt ('II on thitir being a lire haz-

artl,a shelter liii' ('rilninals. a sei'ecii for the

''lowest form of prostitution," an obstruc-

tion to light and air, a hazard in st long

winds. and a 111111(1 of accumulation of waste

islatter. Flove'1'er. (lie (1uesticiic has been

asked by t lie Court t if Kansas

Has the UtIle not. ('01)11. or at, (rash, is it. 111)1.

;hilltOsf Iteje. Sybil I lie toiii'ts will ((lOP the 111:15k of all ('N('iI)CiVe Iol0s'lIi for sit)') V

and iiai1It that. in the ease of billboards is not teal and Ira llklV appuovt' ie;tsoii:ihle u'egui;t(ion of the use of 111Op('l'tv in lire ill teres 1. of beauty? 19,1

\\liile maiiy decisions have taken up the

issue, a definitive answei' is not available.

For this reason, although a iiiatter of dicta,

i'eeeist endorsement of the principle by a

unallillIous Supreme Court in Berman v. Parker 197 isinteresting. The l)isti'ict of C0-

1559'(5 Mi,. 09, 171 SW'. 929 (11111). 105 Wire V. City rrf Wichita, 113 I6an. 153. 100, 214 Pie.

119, 102 (1923). 345 U.S. 26 (1054).

46

OUTDOOR ADVERTISING

luinhia Redevelopment Act was challenged on the grounds, among others, that some property was to be taken which was not blighted or dangerous, and the owners of such property were thus being unconstitu-tionally deprived of their land. In an opin-ion which gave encouragement to supporters of beauty as a basis for State police regula-tion, Justice Douglas w'rote:

The concept of the public welfare is broad and inclusive.... The values it represents are spiritual as well as physical, esthetic as well as monetary. It is within the power of the legislature to determine that the com-munity should be beautiful as well as healthy.... If those who govern the Dis-trict of Columbia decide that the Nation's Capital should be beautiful as well as sani-tary, there is nothing in the Fifth Amend-ment that stands in the way.198

The decision must be recognized as apply-ing to a redevelopment situation wherein the Federal Constitution was applicable. Furthermore, the statement is dicta and its future effect upon the regulation of adver-tising is unclear. However, the case is note-worthy. Recently the Wisconsin court de-clared in State v. Wieland 119 that "In view of . . . Berman v. Parker, this development of the law has proceeded to the point that renders it extremely doubtful that [the gen-eral rule that the zoning power may not be exercised for purely aesthetic considera-tions] is any longer the law." 210

In 1954, the authority of the Ohio Turn-pike Commission to acquire by condemna-tion proceedings the right to prohibit the erection of advertising devices on the re-maining land of owners whose property was taken for turnpike construction purposes, came before the Supreme Court of Ohio.201 The case was decided on the point that the turnpike commission lacked the authority to condemn such rights. However, the court also added that the use of the phrase "visi-ble from the travelway" of the turnpike, in the resolution adopted to acquire these ad-vertising rights, was too indefinite and un-certain to be valid and enforceable. Such a determination might be helpful in consider-

1SS Id at 33. '° 269 Wis. 262, 69 N.W.2d 217 (1955).

Id. at 206,09 N.W.2d at 222. lOt Ellis v. Ohio Turnpike Comm., 162 Ohio St. SO, 120

N.E.2d 719 (1954).

ing standards for the regulation of outdoor advertising. In attacking the indefiniteness the court stated: 202

The word "visible" standing alone is vague and ambiguous. What might be visible to one person might not be visible to another. No standard is set up whereby the word may be accorded practical meaning and effect. What approximate distance in feet or yards is involved? 253

JUDICIAL APPROVAL OF SPECIFIC POLICE

POWER REGULATION S

The following types of outdoor advertis-ing regulations have received judicial ap-proval:

An outdoor advertiser may be required to obtain a license.204

Permits to construct and maintain ad-vertising structures may be required.205 Such permits are subject to all the rules and regulations stipulated in the ordinance as to expiration and renewal. They carry no im-plication that they will be renewed.20° How-ever, the enabling authority to issue permits must contain definite guiding standards.201 One wrongfully refused a permit to erect and maintain a sign has an appropriate remedy by mandamus to compel the issu-ance of a perm it. bos Reasonableness of an-nual permit fees of $1.00 per 5 lineal feet,200 of a $10 license fee for each sign containing 70 square feet,20 of a two cent per square foot, with a $1.00 minimum, annual inspec-tion fee whether the inspection had been

202 Id., 120 N.E.2d at 723. -03 Contrast this with the fixed stands rcls promulgated as

a part of the National Standards, 23 F.R. 8793, Nov. 13, lOSS.

05 General Outdoor Advertising Co.. v. Department of Public Works, 289 Mass. 149, 193 N. II. 799 (1935) sppesl disrnaxsad 56 S. Ct. 495 (1936) ; United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.21 302 (1952).

105 New Orleans s'. Pergament, 198 La. 852, 5 So.2d 120 (1945); Fred Wolferma,, Bldg. Co. s'. General Outdoor Ads'. Co., 30 S.W.2cl 197 (110. 1930) ; General Outdoor Advertising Co. s'. Department of Public Works, 289 Mass. 149, 193 N.E. 799 (1935), sppesl do.smisaed. 56 S. Ct. 495 (193() ; St. Louis Poster Advertising Corp s'. St. Louis, 249 U.S. 269 (1919).

' Mallare, Inc. v. New Rochelle, 184 Misc. 66, 53 N.Y.S. 2d 043 (1944) aff'd 295 N.Y. 712, 65 N.E.2d 425 (1946) Preferred Tires v. lIernpstead, 173 Misc. 1017, 17 N.Y.S.2d 374 (1940) ; General Outdoor Ads'. Co. v. Dept. of Public Works, 289 Mass. 149, 193 N.E. 799 (1935).

201 Ourran Bill Posting Co. V. Denser, 47 Cob. 221, 107 Pac. 261 (1910) ; Fred Wolferman Bldg. Co. s'. General Outdohi' Ads'. Co., 30 S.W.2d 157 (Mo. 7930), see also Ellis v. Turnpike Commission, 120 N.E.2d 719 (1954).

205 Federal Ads'. Corp. s'. Hardi,,, 137 N.J.L. 465, 60 AId 615 (1948).

200 St. Louis Poster Ads'. Co. v. St. Louis, 249 U.S. 209 (1919).

210 Cincinnati v. Criterion Ads'. Co., 32 Ohio App. 472, 168 N.E. 227 (1929).

RFa;ULATIOx UNDER POLICE l'OWER 47

\'\ \

.\ V' gLArE 0

Golden State Freeway—Sepulveda Boulevard, Los Angeles, California. Expressways are planned to penetrate even the roughest areas of the nation, in such a way as to preserve a maximum of efficiency

and pleasantness of travel.

Iliac Ic or not 211 have been (leelned reason-able.

:3. Regulations relative to location and set hack of advertising devices must be ('0111-

plied vitli. Siali regulat ilIns ilI('lUde those requiring a set hack of the sign froici the street line for a distance greater than the height of the hillhotrd and those pro- hijl,it ing hihlholti'ds—in eXcess ()f 5 feet ill height or S feet in length within 300 feet of a public way; nearer than 15 feet to the street line. 2 feet from any other advert is-ing strtietui'e, 4 feet front the ground: wit htin 15 feet of St ate highway righit-ol-

211 ineinlotti V. M,ll't011, ' (him App. inS, II; NESt 521; (1(1:15).

('i','.'IIrl (2itv 11111 101)12' Co. V. Milwaiih i.', ISS \Vis. SI;, 117 N.W.55 (1(111).

510 ('own of MiIIi .. IIotiiieii', Oil) Ilass. '(Si. 55 NESt 425

' SI. loins I isler .tilverhi.iiig (o. v. St. i.ii)s. Sill 2179 ( (Ii 19);SI, i.ions Olinhilig -Idvil lisitig ('II. V. SI. lollils. 235 8Io. III>. 137 SW. 929, ,rril of r roe 'Os ii, isa'S, 221 U.S.

wiv :i within :300 feet (If 'I park. or 50 feet of a public way; ' and. 300 feet fi'oni any street or highway intersection, and 240 feet front the center of the hiighiway.1 I 7

1. Regulations limiting the height or area of billboards have been htehi reasilllable. Such regulations limiting advei'tising dc-

\'ices to 14 feet, in height and 400 square feet in a rca; 215 500 squal'e feet in area; 219 12 square feet ; > and S squal'e feet 221 m resi-dent iah (iiStI'ictS have beeti (le('liled necessary

.I,Iu; A. Svislns' ,v Sili. l;e. V. .iilinsoii. 1411 us. 132.

S 5.21 III (111.15). ()iiIl' .\lr. (Si. V. lIlpart Hell> Ili lull

1)1,1(0. 297 Mass. 117, 193 \... 79(1 (11135), npp,'at u/is ui,5511liIS'> U.S. 725 (11>21; I.

51 NeIl,',, luie. v. ilriiI,', 11:1 It. 04. 3>) 1.21 527

42 SI. i.ouuis I'sSuu' .t,lv,'u' t isiuug (S. v. SI. lsu;is. SIll V.S.

Still (I(l) Iel0l'uI Ouuld,ntu .\,(v. (,'. V. I I,piu'l lIl''iii 5 PlIblic

1(1100, 259 il;usa. 1411. 193 N.E. 71111 11937). ijp';Ls 1/s. LVo'l) 597 C.S. 755 (193>;).

'10(51 v. N;'ts, 1(15 ('ii ...tpp, 701. 555 Pa>'. 8:1

Appal of l,ig'll. 291 I';u. 11(9, 1311 III 919 (1927).

48

OUTDOOR ADVERTISING

to the safety and welfare of inhabitants or lersOns passing by.

The prohibition of immoral or indecnt ad verti semen ts is proper.222

Advertising of a particular product or commodity may be declared illegal and Pro-hibited.223

REGULATION OF EXISTING ADVERTISING

DEVICES

Although the National Standards will be primarily applicable to new highway loca-tions, it is possible that in some instances a State may encounter the problem of pre-existing structures. Under such circum-stances, some courts have had little cliffi-culty applying a police power regulation to pie-existing use 224 as long as such provided regulation served a valid public purpose.

Although some cases discuss the statutory time allowed for the non-conforming use to exist 225 others have not,22 ' and such a period does not appear determinative.

There is authority to the contrary, how-ever, under which a retrospective police reg-ulation has been invalidated as constitut-ing a taking of property without due process of law.227 It should be noted that some of these cases were decided on the basis that the enabling statutes required the payment of compensation,2as or provided for the continuance of non-conforming structures.229 An amortization period for compliance appears to be of little help, if

222 Bryan v. Chester, 212 Pa. 259, 61 AtI. 894 (1905). 223 Packer Corporation V. Utah, 285 U.S. 105, offirswbsg

78 Utah 177, 2 F.2c1 114 (1931). General Outdoor Advertising Co. v. Dept. of Public

Works, 289 Mass. 149, 193 N.E. 799 (1935) ; John IL. Swisher & Son v. Johnson, 149 Flu. 132, 5 So.2d 441 (1942) Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363 (1957).

General Outdoor Advertising Co. v. Dept. of Public Works, 289 Mans. 149, 193 N.E. 799 (1935) Grant v. Mayor and City Council of )3all.imorc, 212 Md. 301, 129 A.2d 363 (1957).

° John H. Swisher & Son v. Johnson, 149 Fla. 132, 5 So. 2c1 441 (1942).

227 General Outdoor Advertising Co. v. City of Indi-anapolil, 202 hid. 85, 172 N.E. 309 (1030) ; United Ad-vertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362 (1952) l'own of Greenbnrgh v. General Outdoor Adv. Co., 109 N.Y.S.2d 826 (1951) Stoner McCtay System v. City of DesMoines, 247 Iowa 1313, 78 N.W.2d 843 (1956) O'Mealia Outdoor Adv. Co. v. Mayor and Council, 128 N.J.L. 587, 27 A.2d 863 (1942) ; Wolverine Sign Works v. City of Bloomfield hills, 270 Rich. 205, 271 N.W. 823 (1937).

General Outdoor Advertising Co. v. City of mdi. anapolis, 202 md. 85, 172 N.E. 309 (1930).

United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362 (1052).

the court determines the regulation to be an improper exercise of the police power.23°

POLICE POWER PRINCiPLES AND THE NATIONAL

POLICY

Evaluation of the problems arising in the "police power" regulation of outdoor adver-tising begins with an appreciation of the rights of individuals afforded constitutional protection under the broad terms of the preservation of life, liberty and property contained in the "due process" clauses, as opposed to and counter-balanced by the claims of society and of the State which are subsumed under the equally-broad term police power. Police power in the words of Mr. Justice Holmes: "... extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public wel-fare." 281

The Congress of the United States has declared that to promote the safety, con-venience and enjoyment of public travel and the free flow of interstate commerce and to protect the public investment in the Na-tional System of Interstate and Defense Highways it is in the public interest to en-courage and assist the States to control the use of and to improve areas.adjacent to such system by controlling the erection and maintenance of outdoor advertising signs, displays and devices adjacent to that sys-tem.232 Congress further declared it to be a national policy that the erection and main-tenance of outdoor advertising signs, dis-plays, or devices within certain areas should be regulated by the States consistent with National Standards.223

Although the regulation of outdoor adver-tising on a State basis is not new, regula-tion of the tyl)e necessarr to meet the Na-tional Standards might be said to constitute an innovation. The Interstate System, as such, is but an extension of the old concept of highways to meet today's transportation

Town of Greenburgh v. General Outdoor Adv. Co., 109 N.Y.S.2d 826 (1951) ; but see Stoner McCray System v. City of Des Moines, 247 Iowa 1313, 78 N.W.2d 843 (1956).

' Noble State Bank v. Haskell, 219 U.S. 104, 111, (1.911).

23 U.S.C., §131(a). Ib&f.

REGULATION UNDER POLICE POWER

49

requirements. Governmental authority is not impotent to protect its citizens and may restrict or prohibit legitimate business in the public interest.234 Nevertheless, it must be recognized that the right to acquire, possess and use property, to engage in a lawful business, to advertise goods and to solicit customers are constitutional rights which must not be arbitrarily interfered with.

The immediate question is, therefore, whether or not it is a valid exercise of the police power to regulate advertising to the extent necessary for a State to comply with the National Standards.235 In issue is the regulation and control of outdoor advertis-ing in "protected areas" along "controlled portions" of the National System of Inter-state and Defense Highways. The Inter-state System may not exceed 41,000 miles. The State control necessary to meet the Standards, however, does not extend along this entire poi'tion. It is limited to portions constructed on right-of-way the entire width of which is acquired subsequent to July 1,

231 ]ireard v. Alexandria, 341 U.S. 622 (1051). Of course, a State may wish to impose regulations

more stringent than those necessary to meet the minimum National Standards. The validity -of such regulations would be tested in keeping with the same criteria.

1956. It may be further limited in that seg-ments of the system (which traverse incor-porated municipalities wherein the use of property is subject to municipal regulation or control or which traverse other areas where the land use is clearly established by, State law as industrial or commercial) 236

may be excluded. The intention is evident, therefore, to encourage the States to control or regulate but not prohibit outdoor aciver-tising on a portion of the total highway mileage existent in the United States.

Various mechanisms and techniques may be utilized to achieve the sought control. Police power regulation is one method. De-tails will have to be worked out to provide for the operation and enforcement thereof. However, the validity of such regulation by means of an exercise of the police power must be judged 'by the facts presented. The capacity to promote, pi'esere or protect the public health, public safety, public morals, public welfare, public comfort, and con-venience in keeping with the declared policy will determine the validity of such regula-tion.

'° 23 U.S.C., §131(b).

CONTROL OF OUTDOOR ADVERTISING THROUGH EMINENT DOMAIN

ACQUISITION OF ADVERTISiNG RIGHTS

As a means of implementing and further-ing the natiopal policy of controlling out-door advertising adjacent to the Interstate System, the Federal Aid Highway Act of 1958 authorizes Federal participation in the cost of acquiring advertising rights adjacent to the .28 Federal participation is limited, however, to the Federal share of that portion of the total cost of acquiring advertising rights which does not exceed five percent of the cost of the right-of-way for the project.235 Under the Federal Stat- ute payment is authorized whenever "the right to advertise or regulate advertising" is acquired by a State, evn if (1) a State does not enter into an agreement to control advertising, (2) the State has acquired ad-vertising rights in an area excluded from the application of the National Standards or (3) the area is adjacent to a segment of the right-of-way acquired prior to July 1, 1956.

Before discussing the legal capacity of the several jurisdictions to take advantage of this provision, the nature of the property interest being acquired merits comment. A State may acquire a sufficient interest in the land to prohibit the property owner or his lessee from erecting outdoor advertising de-vices. The effect would be to remove one of the possible uses of a tract of land adjacent to the highway. The State would have purchased from the property owner a restrictive covenant in that no longer could that property be used for outdoor advertis-ing purposes. A State may wish to acquire more than this restrictive covenant in order to acquire the right to erect outdoor advertising upon the property or to lease out such sites. If such a right is taken then the property interest acquired by the State closely resembles the conventional concept of an interest in property.23°

04723 U.S.C. §131(e). 285 Ibid. '°" Of course a State might deem it expedient to acquire

a fee simple in certain tracts for this purpose, but as such, this will not be considered herein. See Condemnation of Property for highway Purposes, HillS., S.R. 32.

Different financial consequences are con-tingent upon which interest is acquired. It is one thing, from the aspect of valuation, to restrict the owner's use of property; it is another for the State to acquire sufficient interest to erect advertising devices or to lease advertising sites. The latter interest would presumably cost more than the former and create different problems in placing a value upon the acquired interest.

THE CONCEPT OF HIGHWAY PURPOSE

The authority of a State highway depart-ment to control outdoor advertising through condemnation is dependent UOfl (a) the extent of its authority to exercise the power of eminent domain and (b) its authority to expend dedicated highway funds for this purpose.

A majority of jurisdictions provide that the State highway department may con-demn lands and rights therein necessary for the construction, repair, maintenance, relo-cation and widening of State highways.210 Legislation in ten States contains an enu-meration of highway purposes for which property may be condemned.241 For exam-

240 ALASKA CO8IP. LAWS, ANNOT., 1949, §14A.5-1 ; ARID. REV. STATS., §18-154; COLO. REV. STATS., 1953, §120-3.8; SEN. STATS. OF CNN., §2224, 2264 ; DEL. CODE ANNOT., tit. 17, §132(c), 138; FLA. STATS., 1957, §337.27; cone OF iSA., §895-1715, 95-1724 ; SMITII-IIUI1D ii. ANNOT. STATS., ch. 121, §299 ; swiss' ise. STATS. ANNOT., §836-118, 36-2946; (sEN. STATS. OF SANS., ANNOT., §68-413 ; KY. REV. STATS., §177.081 ; LA. REV. STATS., 1950, §848: 217, 48: 218; Rev. STATS, OF ale., 1954, cls. 23, §20; ANNOT. LAWS OF MASS., cli. 81, §7 ; MINN. STATS. 1953, §161.03 ; MISS. CODE ANNOT., 1942, §8023 ; lIES'. CODES OF MONT., 1947 ; §32.1615 ; N.H. REV. STATS., §8233: 1, 235: 1; N.Y. CONSOL. LAWS SERVICE, HIOl-IWAY LAW, §30; OEN. STATS. OF NC., §8136-18, 136-19; N.D. REV. CODE, 1943, §24-0118 ; OKLA. STATS., 1951, tit. 69, §46 ; ORE. REV. STATS. §366.320 ; PUDDON'S FA. STATS. ANNOT., tit. 36, §670-301 ; SEN. LAWS OF Ri., 1956, §37-6-13 ; CODE 03' LAWS OF S.C., 1952, §33.122 ; S.D. CODE OF 1939, §28.13A01 ; VERNON'S TEN. CIV. STATS. 1948, ait. 6674.n UTAI[ CODE ANNOT. 1953, §27.2-9; Vt. STATS., REV. OF 1947, §4971; CODE OF VA., 1950, §33.57 ; iim'. CODE OF WASh., §47.12.010 W. VA. CODE OF 1955, §1461(5) ; %VIS. STATS., 1957, §84.09(1) ; u. C. CODE, 1951, §7-201; l,As'S OF I'D., tit. 9, §74.

ARID. REV. STATS., §18.155A ; ARK. STATS. 1947, §76-532 ; DERRING'S CALIF. CODES, STIIEETS & l-I1OHWAYS CODE, §104 ; ANNOT. CODE OF 811)., 1957, art. SOIl, §8 ; MId'. STATS. ANNOT., §8.171; MO. REV. STATS. 1949, §227.120; luST. STATS. OF NCR., §39.1320 ; NEV. REV. STATS.., §408.970 ; ORE. REV. STATS., §8366.340, 345 ; TEN. LAWS OF 1957, H.B. No. 179, § 4(1). it should be noted that these proviSions usually con-tain a clause which provides that these purposes include, but are not limited to, those enumerated.

50

Fj

('(IN'l'l101. 'I'lllt.()lGII l-:IIxI:xT IX)1AlX

51

'I -

PLATE H

Massachusetts Route 128, a circumferential highway skirting the congested area of Boston. This expressway is having a profound Impact on industrial activities in the area. It is functional and

ploa'iant to use.

pie. the \ehraska statute contattis the tol-

It aving pllrposes

() Contt'ollod 3 (('('55 fm-ilii os. including air. vow and front ;iia' and ('FV1cO ro:o Is to

liighv:tvs

1) 1110 lrr'servat loll 01 (II lj('('t 5 01 a I riot ion of. 5(01)10 V;IIII(' :Olptc('Ilt to, along, of. in close proxlIIIitV to highways and the cult lIre of trios and \d( 1.11 mw increase the Scenic beauty of si'hi lughiwavs 212

The Marylala I statute provi los that

'Alliolig the illt('I'('ds in land vlIlch illav be

SI) arqu i I'll I are agree t 1(11 ts or easel uents

I'estl'iet tog, or subject jog to regulation by

the C'olnnlission, itllV right of the Owner or

other persons ... to ihisplav thereon signs,

billboards or ;ohvertist'lnents.'

other jurisdictions have legislation whiell

sillIpl'v eIlIpOWeI'i the highway tlepartineiit

to condellln property for liighiwa's or lugli-

VaV purposes. 41 In adthit ion, 26 States

have lonstitutiorlal provisions requiring that

92 her. STO'S. 'c s(,.. §3-1:00(2), (99(11'. ((lIE IF 1.111.. all. salt. §s( I,)(:e, (II1IE Ill' (It. 19411, lit. 23, §2ti ; 10.11111 CoUr, §41-12

'(lIE (II' iOWA. 35, §200,13 59 1.OT, ('lIllE SC Mll. 1937. all. 8(0. §s ; X,.I.S..'t. §27 7-22 9. 1.1. 51.125. 1953, §:,5- 2-7101 iitl.IIWIN''I,, 111,1 (1EV. '((lIE. §3319.01 ; '21:99. 1- lIlt:

8:1:10 avo. ('11.11'. SIITS. 1915.. §18-105; ItEv. I. till, (Ii 11.1W. 1953, §8-2.

iiioney raised by highway 11501' taxes be devoted solely to lnglivay ptl1'l)Ose5.24

The term "lnghw;iv purpose' is analogous

to such concepts as 'police power' and ''due

process of law.'' What was included within

this term 10 years ago eneoltipasses a much

lIal'l'OwCl' l'alige of activities thiaii at the

presetit. III the ('ourse of its opinion up-

mdi hing the IC constitut ii tnalitv of, the Mas-

sai'husetts Fttriipike :\.et. the Supreme .Jt0 hi-

cial ( 'ourt (les('l'ihc(i highl\vays stIehl 718 those

whahi Nvill constitute the Interstate System

as ktllows : IC

Ii is ('VilIPIlt that this is to be no ordinat''

highway of th kind with whil'hI OIII' history )):is oal.h' IN t;tnuIl:lI'. It IS all ent irilv new type of highway whiell has ni:uh' its PoaIo'e ((fll' ill ('OtIlp:IIatIVI'l\' Iela'Ill yi':lrs is;iri'sttlt ofthe III:ln\' 'hhatlges in the livi-

'I.. •(_•, l,,Nr.allfl.lt,IllIl'll( XCIII ((IC'., I INST. (It. IX. §14 ; 1.11.11'. ('oNsi. Z.H. XXVI ; ('(11,11. ('11951 (II, X. § Is; (.1911.011 11191.1. §2-02(14(t1); 111(1111 (II ',sT. alt, VII. §17; toW.% ('1191.1 alt. VII, §s ; - 1119Sf, §230 ; It, 011951, lI(. \I, §23; tic. 1 ,ra'r,iirt. IX, § Ia; %I.%SS. ('119sf, §215; 1.11011. 15(1 T..I('(. X, §22: MINN. 151991, III. XVI, §3; tIll. ('11991 alt. II, §311 1.11191' I (951. Sr I, XII. §1(11) ; 9EV. ('()991, III IX. §3: N.H. 111951' I't. 2. art, (i-a; 9, 0(11. 00951. art. L\I : 1111111 l,l'1sT.11r1. XII, iSa: In:, (119 sr art. IX. §3: I'S. 191991', lIt. IX. §ts S. 11911, (951. all. XI. §s; vcs.us

lIt. VII, §7.5:11(1.9. 111951. (II II, §1)) (allll'leI. 191 W. VI. 01(951.. art, \l, §52; 11(11, l,lr.S'r, Ill. .\V. §10.

21II Otljllj,,l, Ill (Ill' .IIhSIll','. :1311 1(111(15 713, 11:1 N,E.91I $32. 407, 1119


and customs of the people brought about by the introduction and general use of the automobile. It will run practically the entire length of the main part of the State. It will doubtless consist of a number of paved lanes properly separated and graded to permit of safe operation at high speeds comparable perhaps to the speeds of passenger trains on railroads. It is to be expected that there will be few, if any, grade crossings. There are to be ingress and egress only at designated points, which in some instances may be miles apart. There will be signs, signals, and perhaps safety devices of one kind or another. There must be space along the sides of the main portion of the way to afford opportunity for slowing down or stopping or for disabled vehicles without interference with the general flow of trac. In fact in some respects such a way more nearly resembles a new railroad system crossing the State than it resembles that traditional road leading from one tow'n to another. It differs still more from the ordi-nary city street. Such a road cannot merely be constructed and opened to the public. It must be operated. This involves inspection, supervision, and a constant preparedness to remove obstructions and make necessary repairs. This in turn is likely to involve the use of road machinery, towing vehicles, snow plows, and sanding equipment, which must be kept in readiness and may have to be stored at proper places along the way. For all this buildings may be required, as well as a reasonable provision for garages where necessary repairs can be made both upon the equipment of the turnpike and in order to keep the vehicles of travelers in operable condition. Similarly it will be nec-essary to provide gasoline stations at reason-able intervals. These auxiliary structures bear a relation to the turnpike similar to that which the switch towers, water tanks, round houses, and stations bear to a railroad. These structures are parts of the railroad, although not parts of the track.

What land is needed for the actual con-struction of the new type of turnpike and what jonas part of it and what is outride of it are matters not to be determined by the sanse standards as would be op plied in the case of the country road of fifty or even twenty-five years ago. This enterprise must be envisioned as a whole in its larger aspects. In our opinion not only the worked portion of the roadway, including, of course, bridge, abutments, embankments and approaches, but also the kinds of buildings and other structures which we have mentioned and a reasonable amount of land taken or ac-quirecl on which to place them are all "needed for the actual construction" of the

highway and are parts of it and will be taken or acquired for and devoted to a public use, and land taken for such purposes will not be "more land and property than are needed for the actual construction" of the highway. (emphasis added)

In addition to the Massachusetts opinion, a number of other cases indicate judicial approval of such an expansion of the con-cept of highway purpose. New York in 1901 upheld the use of eminent domain to acquire 20-foot strips along the highway wherein the strips were not to be used for travel "... but to afford ample space for the access of light and air, and also to beautify and adorn." 247

The right to condemn a 66-foot right-of-way when the width of the traveled portion to be constructed was only to be 36 feet, leaving a 15-foot buffer area on both sides of the highway was upheld in South Caro-lina 248 in 1929. The court said:

It is clear that such control must extend to a right-of-way of such reasonable width as will enable the authorities to prevent struc-tures of any kind, such as signboards, filling stations, etc., which tend to obscure the view of travelers and thus increase the hazard of accidents, from being built up to and abut-ting the roadbed; to insure the removal of trees growing by the roadway when neces-sary; to prevent encroachments upon, and threatened obstructions to, the roadbed; and to take such other precautionary meas-ures as the circumstances may require.240

The Ohio court, in 1922 held that the ac-quisition of property rights for the purpose of prohibiting advertising devices that could be seen from the highway was invalid be-cause there was to be no physical use of such property by the public.250 In the recent case of Ellis v. Ohio Turnpike Commis-sion7251 the Ohio court invalidated the ap-propriation of advertising rights. However, the holding is based on the fact that the Turnpike Act did not authorize such an ap-propriation. In this decision the court, re-ferring to the fact that the Commission had attempted to restrict advertising devices "which would be visible from the travel-

' In re City of New York, 57 App. Div. 166, 68 N.Y.S. Supp. 196, afflr,,,eci 167 N.Y. 824, 60 N.E. 1108 (1901).

'8 white v. Joh,,son, 148 S.O. 488, 148 S.E. 411 (1929). 240 h1 146 S.E. at 413. 250 Pontiac Iniprovement Co. v. Board of Coiiimissioners,

104 Ohio St. 447, 135 N.E. 635 (1922). 251 162 Ohio St. 88, 120 N.E.2d 719 (1954).

CONTROL THROUGH EMINENT DOMAIN

53

way," said that the term "visible" is too vague and ambiguous to constitute an acle-quate standard.

In other recent cases, the use of highway funds for public utility relocation,252 the advertisement of State highways and scenic attractions 253 and the provision of off-street

Opinion of the Justices, 182 A.2d 613 (N.H. 1957) contra, Opinion of the Justices, 132 A.2d 440 (Me. 1937).

Keck v. Manning, 313 Ky. 433, 231 S.W.2d 604 (1950) contra. State v. Jonasson, 78 Idaho 203, 299 P.2d 755 (1956).

parking facilities 254 have all been upheld by the courts as expenditures for valid high-way purposes.255 It appears, therefore, that "highway purposes" is a broad and still, de-veloping term.

254 Essex v. Hindenlang, 35 N.J. Super. 479, 114 A.2d 461 (1955) ; City of Richmond v. Dervishian, 190 Va. 35S, 57 S.F12d 120 (1950).

__ For examples of the expansion of the term "highway purpose" see State v. Martin, 38 W.2d 534, 232 P.2d 833 (1951) Grauman v. Dept. of Highways, 286 Ky. 850, 181 S.W.2d 1061 (194

1 ) ; Minneapolis Gas. Co. v. State, IJocket

No. 37568, No. 101, July 11, 1958, Minn. Supreme Oourt.

APPENDIX A

ZONING AND PLANNING ENABLING LAWS

MUNICIPAL ENABLING ZONING AND PLANNING LAWS

Alabama-Laws of 1957, No. 729 (pop. be-tween 75,000-125,000); Code of Ala., 1940, tit. 37, § 774 (incorporated cities and towns), tit. 62, § 594 '(Mo-bile and IVlontgomery), tit. 62, § 710 (Birmingham).

Arizona-A riz. Rev. Stats., § 9-461 (incor-porated city or town).

Arkansas-Ark. Stats. 1947, §§ 19-2827 et seq. (cities of 1st and 2nd classes).

Calif ornia-Deering's. Calif. Codes, Gov. Code, § 65800 (city), § 38690 (city).

Colorado-Cob. Rev. Stats., 1953, § 139- 59-6 (municipality), § 139-59-11 (municipality), §§ 139-60-1 et seq. (city and incorporated town).

Connecticut-Gen. Stats. of Conn., § 373d (municipality) ; §§ 836, 837, 849 (city, town or borough).

Delaware-Const., Art. 2, § 25 (municipal-ities) ; Del. Code Annot., tit. 22, §§ 301 et seq. (cities and incorpo-rated towns).

Florida-Fla. Stats., 1957, §§ 176.02 et seq. (cities and towns).

Georcjia-Const., § 2-1923 (municipalities) Code of Ga., §§ 69-801 et seq. (all municipalities) ; §§ 69-1201 et seq. (all municipalities)

Idaho-Idaho Code, § 50-401 (first and sec-ond class cities and villages), § 50-2705 (city and village).

Illinois-Sm ith -Hurd Ill. Annot. Stats.,' ch. 24, §§ 53-1 et seq.; ch. 24, §§ 73-1 et seq. ( incorporated municipalities).

indiana-Burns' Ind. Stats. Annot., § 53-701 (city, town).

Iowa-Code of Iowa, 1958, §§ 414.1 et seq. (city or town).

Kansas-Gen. Stats. of Kans., §§ 12-701 et seq. (city).

Kentucky-Ky. Rev. Stats., § 100.031 (first class city), § 100.320 (second class city), § 100.500 (third-sixth class cities).

Louisiana-Const., Art. 14, § 29 (municipal-ity) ; La. Rev. Stats., 195Q, § 33:106 (municipality and parish), § 33:131 (regional planning commission forinecl by municipality and par-ishes), §§ 33:4721 et seq. (munici-pality).

Maine-Rev. Stats. of Me., 1954, ch. 91, § 93 (city and town), ch. 90-A, § 61 (municipality).

Marylancl-Annot. Code of McI., 1957, Art. 66B, § 1 (Baltimore City, cities and incorporated towns over 10,000).

Massachusetts-Annot. Laws of Mass., ch. 41, § 70 (cities and towns with popu-lation more than 10,000 and towns less than 10,000), ch. 41, § 81A (cities except Boston and towns over 10,-000), ch. 40A, § 2 (every city except Boston and any town).

Michigan-Mich. Stats. Annot., § 5.2082 (3) (home rule cities), § 5.2931, (cities and villages), § 5.2973(1) (town-ship)

Minnesota-Minn. Stats., 1953, § 366.13 (town), § 462.01 (third, fourth class city or village) ; Laws of 1955, ch. 463 (first class city).

Mississippi-Miss. Code Annot., 1942, § 3590 (municipality with population over 1000).

Missouri-Mo. Rev. Stats., 1949, § 89.020 (cities, towns and villages).

Montana-Rev. Codes of Mont., 1947, § 11-3828 (city and town).

Nebraska-Rev. Stats. of Neb., § 14-401 (metropolitan class city), § 18-1302 (municipality)', § 19-901 (first and second class cities and villages).

New Hampshire-N. H. Rev. Stats., §§ 36:1 et seq. (cities, towns and villages), § 36:39 (regional planning commis-sion).

New Jersey-N.J. S. A., §§ 40:55-30, 40:55-32 (municipality), § 40:55-1.11 (city, borough, town, township or village)

54

APPENDIX A 55

Const., Art. 4, § 6, para. 2 (municipalities, other than counties).

New Mexico—N. M. Stats., 1953, 14-2-14 et seq., 14-28-9 (incorporated cities, towns and villages).

NewYork—N. Y. Consol. Laws Service, Town Law, §§ 261 et seq. (town), Village Law, §sS 175 et seq. (village).

North Carolina—Gen. Stats, of N. C., §§ 160-172 et seq. (cities and incor-porated towns).

.\'orth Dakota—N. D. Rev. Code, 1943, §§ 58-0311 et seq. (townships), § 40-4808 (municipality), §S 40-4701 et seq. (cities).

Ohio—Baldwin's Ohio Rev. Code, §§ 519.02 et seq. (township zoning), §§ 713.01 et seq. (cities and villages).

Oklahoma—U kla. Stats., 1951, tit. 11, §§ 401 et seq. (cities and incorporated vil-lages), tit. 11, §§ 421 et seq. (city or town), tit. 11, §§ 431 et seq. (city or town regional planning commission), tit. 11, §1411 et seq. (cities with population not less than 160,000), tit. 19, §§ 854.1 et seq. (city or town with population of 19,000 or more in county with population between 32,-800 and 34,000).

Oregon—U. R. S., §§ 227.010 et seq. (cities and towns).

Pennsylvania—Purdon's Pa. Stats. Annot., tit. 53, § 23117 (second class cities), §§ 5810 et seq. (first class town-ships), §§ 3910 et seq. (third class city), §§ 22761 et seq. (second class city), §§ 25051 et seq. (second class city), §§ 14752 et seq. (first class cities).

Rhode Island—Gen. Laws of R. I., 1956, §§ 45-24-1 et seq. (cities and towns).

South Carolina—Code of Laws S. C., 1952, §§ 47-1001 et seq. (cities and incor-porated towns), §§ 47-1101 et seq. (Aiken and North Augusta), §§ 47-690.211 et seq. (city), §§ 47-1021 et seq. (municipality), §§ 47-1062 et seq. (cities between 15,250-16,000).

South Dakota—S. D. Code of 1939, §§ 45.-2601 et seq. (municipality), § 45.3301 (incorporated cities and towns).

Tennessee—Tenn. Code Annot., §§ 13-501 et seq. (municipality), §§ 13-701 et seq. (municipality).

Texas—Vernon's Tex. Civ. Stats., 1948, Art. 1011a (cities and incorporated villages), Art. 1011 (1) (joint city, town, village planning).

Utah—Utah Code Annot., 1953, §§ 10-9-1 et seq. (cities and towns).

Vermont—Vt. Stats. Rev, of 1947, §§ 3812 et seq. (cities, towns and villages), §§ 3847 et seq. (cities, towns and villages).

T'irginia—Code of Va., 1950, § 15-819 (cities and towns), §§ 15-899 et seq. (city or incorporated town)

Washington—Rev. Code of Wash., §§ 35.-58.300 et seq. (metropolitan munici-pal corporation).

West Virginia—W. Va. Code of 1955, §§ 511 et seq. (municipal corporation).

lVisconsin—Wis. Stats., 1957, § 27.11 (city), § 60.29(41) (town regional planning), H 60.74 et seq. (town in county not adopting county zoning), § 61.35 (vil-lages), § 62.23 (city planning, official maps and zoning), § 66.945 (city, town, village regional planning).

TVyoming—Wyo. Comp. Stats., 1945, §§ 29-1901 et seq. (incorporated cities, towns and villages).

District of Columbia—D. C. Code, 1951, §§ 5-412 et seq., §§ 1-1001 et seq.

COUNTY ENABLING ZONING AND PLANNING LAWS

Alabama—Code of Ala. 1940, tit. 62, § 330. Arizona—A riz. Rev. Stats., tit. 11, §§ 802 et

seq. Arkansas—Ark. Stats. 1947, § 17-1103 as

am. by Laws of 1957, Act 202. California—Deering's Calif. Codes, Gov.,

§ 65800. Colorado—Cob. Rev. Stats., 1953, §§ 106-

2-5 et seq. Dclawara—Const., Art. 2, § 25 (New Castle

County); Del. Code Annot., tit. 9-2507 (New Castle County), tit 9-2601 (New Castle County).

Georgia—Const., § 2-1923.


Idaho—Idaho Code, § 31-3801 (county with urban population, see § 31-3802), § 50-2705 (county).

Illinois—Smith-Hurd Ill. Annot. Stats., ch. 34, § 152d.2 (counties less than 500,-000 pop.), § 152i (all counties).

Indiana—Burns' md. Stats. Annot., §§ 53-701 et seq., §§ 53-901 et seq (counties containing first class cities).

Iowa—Code of Iowa, 1958, §§ 358A.1 et seq.

Kansas—Gen. Stats. of Kans., Annot., § 19-2906 (counties over 75,000), § 19-2914 (10,000-250,000 population), § 19-2929 (counties having a first or second class city).

Kentucky—Ky. Rev. Stats., § 100.031 (county containing a first class city).

Michigan—Mich. Stats. Annot., § 5.2961 (1), § 5.2964(1)

Mirtnesota—Minn. Stats., 1953, §§ 394.06 et seq. (county having first class or second class city).

Mississippi—Miss. Code Annot. 1942, § 2890.5.

Missouri—Const. Art. VI, § 18(c) ; Mo. Rev. Stats., 1949, §§ 64.010 et seq. (first class counties), §§ 64.510 et seq. (counties of second or third class.)

New Jersey—N.J.S.A., §§ 40:27-1 et seq. North Carolina—Gen. Stats. of N. C., § 153-

9(40) (counties), §§ 153-251 et seq.

(counties for unincorporated com-munities in county).

North Dakota—Laws of 1955, Ch. 119. Ohio—Baldwin's Ohio Rev. Code, §§ 303.02

et seq. (county rural zoning), §§ 713.22 et seq. (any county).

Okla.homa—Okla. Stats., 1951, tit. 19, § 863.1 et seq. (counties with city between 180,000-240,000 population).

T'Visconsin—Wis. Stats., 1957, §§ 59.97, 236.46.

LAND USE CONTROLS; REGIONAL PLANNING

Alabama—Code of Ala. 1940, tit. 37, § 811. Indiana—Burns' mci. Stats. Annot., §§ 53-

1024 et seq. iYorth Carolina—Gen. Stats. of N. C.,

§§ 153-269 et seq. (Western North Carolina Regional Planning Commis-sion).

STATE ENABLING ZONING AND PLANNING LAWS

Kentucky—Ky. Rev. Stats., § 147.080. Mar yland—Annot. Code of Md., 1957, Art.

88C, §§ 1 et seq. Nebraska—Rev. Stats. of Neb., § 81-831. Wisconsin--Wis. Stats., 1957, § 15.845. Puerto Rico—Laws of P. R., tit. 23, § 9(e).

APPENDIX B

SUMMARY OF STATUTES AND SELECTED JUDICIAL DECISIONS, BY STATE

ALABAMA

Code of Alabama, 1940

Highway department is authorized to adopt regulations governing the positions for placing markers, signs and advertising on the right-of-way of all State controlled highways. (tit. 23, § 36)

Department of finance is authorized to let contracts for the placing of markers and the posting of signs and advertising matter on said highways, and to fix the compensa-tion to be paid to the State by all persons contracting with the department for adver-tising space on .said highways. If any con-tract is made with any person for the pur-pose of subletting the space by such con-tractor, the compensation to be paid the State shall not be less than 20 percent of the gross income received by him. The pro-ceeds from such contracts shall be deposited to the credit of the maintenance fund of the highway department. (tit. 23, §§ 37, 38)

Alabama Turnpike Authority has power to acquire fee simple or lesser interest in private property, and any fee simple title in, easements upon, or the benefits of re-strictions upon abutting property to l)re-serve and protect any turnpike project. (tit. 23, § 124(15) (j))

Prohibits erection of advertising signs which imitate official traffic signs or mark-ers. (tit. 36, § 49)

Advertising signs resembling railroad crossing signs are prohibited from any pub-lic road or street or on private property within one-fourth of a mile of the right-of-way of any public road or street. (tit. 48, § 445)

License requirements for advertising busi-ness. (tit. 51, § 456)

Judicial Decision

First National Bank v. Tyson, 133 Ala. 459, 32 So. 144 (1902). The right of view or prospect is implied from the dedication

of the street to public uses. The owner of a building on the street ought not to be de-prived of the easement of view from every part of a public street, by an encroachment on the highway by a coterminous or ad-acent proprietor.

ALASKA

Alaska Compiled Laws Annotated, 1949

Declared purpose of the Outdoor Adver-tising Act (§§ 14A-12-1 through 14A-12-7) is to protect the public safety and welfare of persons using the highways by causing the removal of outdoor advertising along said highways, thereby eliminating a source of distraction to vehicle operators .and per-sons on said highways. (§ 14A-12-1)

Outdoor advertising is defined to include all commercial and political advertising so displayed as to attract the attention of any person operating any type vehicle on any public highway whether by means of print-ing, writing, etc., but excludes advertising located within incorporated towns or upon private property in rural areas which re-lates exclusively to the business conducted on such property or the sale or rental thereof. (sS 14A-12-2)

All outdoor advertising is prohibited, ex-cept that—The Commissioner of the Alaska Highway and Public Works Department shall design identical signs for highway use by rural businesses, upon which shall be listed the type of establishment, service of-fered and the distance to such establish-ment. Such signs shall be installed, by the owner or manager of any rural establish-ment at his own expense, only upon appli-cation and issuance of a permit by the Com-missioner. Such signs, where practicable, shall be installed within one mile from and on the right side of all highway approaches to any bona fide roadhouse, service sta-tion, auto court or other rural business. Where practicable one sign may indicate

57

58

OUTDOOR ADVERTISING

several businesses and the distance to each. (§§ 14A-12-3, 14A-12-4)

It is the duty of the. Superintendent of Police to order the removal by the owner of all illegal outdoor advertising. Any person who shall disobey an order to remove illegal signs shall be subject to a penalty. Any person who violates or fails to observe any provisions of the Outdoor Advertising Act or any rule or regulation promulgated here-under shall be guilty of a misdemeanor and upon conviction may be fined not less than $50.00 nor more than $500.00. Q§ 14A-12-5,.14A-12-6;12A-12_7)

ARIZONA

Arizona Revised Statutes

The State highway commission is granted authority to regulate the use of advertising signboards and road signs on State roads or State highways. ( 18-106 (8))

Unauthorized signs, signals, markings or devices which purport to be or are imita-tions of or resemble official traffic-control devices or railroad signs or signals, or which attempt to direct the movement of traffic, or which hide from view or interfere with the effectiveness of any official traffic-con-trol device or railroad sign or signal, are prohibited. Traffic signs and signals are prohibited from bearing any commercial ad-vertising. This shall not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information and of a type that cannot be mistaken for official signs. Q 28-648)

ARKANSAS

Arkansas Statutes, 1947

It is unlawful for anyone to erect or cause to be erected or maintained, on or within 100 yards of the right-of-way of any State highway, any sign or billboard which has printed, painted, or otherwise placed thereon, words or figures calculated to cause the traveling public of this State or tourists from other States to abandon such State highways and travel any public road to any town, city or destination in this State, unless the same shall be erected and maintained by

and with the consent and approval of the State Highway Commission, or to give to the traveling public any false or misleading information pertaining to the highways of this State. Violation is a misdemeanor. (§§ 41-2106 to 41-2109)

Advertising signs on the highway right-of-way are prohibited except signs placed under direction of the State Highway Com-mission. Violation is a misdemeanor. (§§ 41-2110, 41-2111)

CALIFORNIA

Deering's California Codes, Streets and Highways Code Annotated

The Department of Public Works has authority to issue permits for the erection of advertising signs on State highways. Any unauthorized sign is declared a public nuisance and may be removed by the de-partment. Q 670(c))

Deering's California Codes, Business and Professions Code

The "Outdoor Advertising Act" (sections 5200-5325) defines "advertising display" as referring to "advertising structures" and "signs" which do not include official notices issued by a court, public body or officer; notices posted by public officer in perform-ance of duty or by persons in giving legal notice; and directional, warning or informa-tion structures required by or authorized by law or by Federal, State or county author-ity. (§§ 5202-5204)

"Outdoor Advertising Business," "to place," "highway," "Director," "person," "Freeway" and "Landscaped freeway" are defined. Q§ 5205-5211)

The Director of the Department of Public Works may make orders and regulations for the enforcement of this Act and may au-thorize the Division of Highways of the Department of Public Works to enforce its provisions. The Director shall prescribe the form of all applications, licenses, permits and other appurtenant written matter and furnish such forms and he may appoint a representative or agent in each county for the purpose of issuing the licenses and per-mits and collecting fees therefor. The direc-

APPENDIX B

59

tor may enforce the penalties for failure to comply with this Act. (§§ 5215-5218)

These regulations shall be exclusive of all other regulations for the placing of ad-vertising displays within view of the public highways in unincorporated areas whether fixed by a law of this State or by a political subdivision thereof, and apply only to terri-tory other than that within incorporated cities and towns. It is the intention of the Legislature to occupy the whole field of regulation by this Act, except that it does not prohibit enforcement of its provisions by persons designated so to act by appropri-ate ordinances duly adopted by any county nor does it prohibit the passage by any county of reasonable land use or zoning regulations affecting the placing of advertis-ing displays in accordance with the provi-sions relating to zoning. Q§ 5225-5227)

Except as to licenses (§§ 5239-5242) and regulations (§§ 5285-5290) this Act does not apply to advertising displays used exclu-sively: to advertise the sale or lease of the property on which it is placed; to designate the owner or occupant or to identify the premises; or to advertise the business con-ducted or services rendered or the goods produced or sold upon the property on which the display is placed if the display is upon the same side of the highway and within 800 feet of the entrance of the site of the business. (§ 5229)

Anyone engaging in the business of out-door advertising must obtain an annual license to do business, and a permit to place any advertising display. Q§ 5239-5272)

Regulations Q§ 5285-5290) include the prohibition of advertising displays: within the right-of-way of any highway; if visible from any highway and simulating or imitat-ing any directional, warning, danger or information sign permitted under this Act; if within any stream or drainage channel or below the flood water level of any stream or drainage channel where it might be deluged by flood; if not maintained in safe condi-tion; if visible from any highway and dis-playing any light likely to be mistaken for a warning or danger signal; or if any illu-mination thereon is of such brilliance and so positioned as to blind or dazzle the vision of travelers on adjacent highways. (§ 5286)

Advertising displays are prohibited out-side any business district or unincorporated city, town or village, or any area that is subdivided into parcels of not more than 20,000 square feet each in area if: within a distance of 300 feet from the point of in-tersection of highway or of highway and railroad right-of-way lines (with specific exceptions) ; or if placed in such a manner as to prevent any traveler on any highway from obtaining a clear view of approaching vehicles for a distance of 500 feet along the highway. Q 5287)

Advertising structures must be built to withstand a wind pressure of 20 pounds per square foot of exposed surface, and must not contain anything which would offend public morals or decency. (§§ 5289, 5290)

Director of Public 'Works is given au-thority to revoke any permits and remove any advertising displays for failure to com-ply with statutes. The Director may enter upon private property without incurring any liability for the purpose of removing or destroying any illegal advertising. Q 5312)

Defines freeway and landscaped freeway; prohibits advertising on property adjacent to a freeway which is landscaped if the ad-vertising is primarily for benefit of persons traveling on the landscaped freeway unless the display is used exclusively (1) to ad-vertise the sale or lease of the property upon which the advertising is located; (2) to designate name of owner or occupant of the premises or identify the premises or; (3) advertise goods manufactured or produced, services rendered, on the property where the advertising is located. (§§ 5210, 5211, 5291, 5293)

Gives Director of Public Works the same authority to remove and destroy illegal ad-vertising displays from landscaped freeway as concerns other highways. Provision is made for annual license fees for outdoor ad-vertising on landscaped freeways. Q§ 5310-5325)

Judicial Decisions

In re Wilshire (CCSD Cal. 1900) 103 Fed. 620. Municipal regulation of height of billboards sustained upon safety and aes-thetic grounds.

60

OUTDOOR ADVERTISING

Varney and Green v. Williams, 155 Cal. 318, 100 Pac. 867 (1909). Municipal ordi-nance forbidding billboards viewed as aes-thetic rather than police regulation and beyond the power of the town trustees.

Pacific Rys. Advertising Co. v. City of Oakland, 98 Cal. App. 165, 276 Pac. 629 (1929). Ordinance prohibiting commercial advertisements on the exterior sides of street cars held invalid as not a reasonable regula-tion but an absolute prohibition.

Brougher v. Board of Public Works of San Francisco, 107 Cal. App. 15, 290 Pac. 140 (1930). Municipal ordinance upheld. Aesthetics alone will not justify use of police power but can be utilized along with other considerations.

People v. Norton, 108 Cal. App. 767, 288 Pac. 33 (1930). Municipal regulation of size of billboards sustained.

Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38 (1949). Zoning regulation upheld.

COLORADO

Colorado Revised Statutes, 1953

No person shall place upon or in view of any highway any unauthorized sign, signal, marking or device which imitates or re-sembles an official traffic control device or railroad sign or signal, or which attempts to direct movement of traffic, or which hides from view or interferes with the effective-ness of any official traffic control device or any railroad sign or signal. Every such pro-hibited sign is declared a public nuisance. (§ 13-4-15 (1), (2))

Prohibits any advertising display defac-ing natural scenery such as on stones or rocks, bridges, trees or upon the ground. (§ 40-21-1)

Article entitled "Roadside Advertising" defines sign to include every billboard, bulletin board, signboard, framework, paper, metal or other substance on which is dis-played any outdoor advertising matter; prohibits the erection of any sign upon pub-lic or private property within 500 feet of the center line of any public road or highway outside of incorporated towns and cities without the written consent of the owner of the property; prohibits signs wholly or

partly within the right-of-way of any public road or highway outside of incorporated towns or cities; prohibits signs within 500 feet of any scenic parkway (as defined); prohibits signs within 250 feet of any his-toric monument, shrine or similar object, or within 250 feet of any railroad or grade crossing which constitutes a hazard to traf-fic, and prohibits signs which display matter offensive to public mOrals or which ifriitate or resemble official signs or highway mark-ers. No signs are permitted on fence posts, telephone posts, trees, bridges, barricades, rocks or fences. The Secretary of State is authorized to. designate specific points along the public roads and highways as scenic areas and no signs are permitted between these points. The following signs are ex-empted: danger signs, railroad crossing signs, signs advertising sale, rental or lease of the premises upon which erected, signs within any city, town or unincorporated area or signs upon private or public prop-erty which advertise the goods or products sold, services rendered or business conducted on the property. Q§ 120-5-1 through 120-5-13)

Judicial Decision

Curran Bill Posting & Distributing Co. v. Denver, 47 Cob. 221, 107 Pac. 261 (1910). City ordinance held invalid. The grant or denial of a billboard permit must be on the basis of stated rules. Regulation of un-sightly advertisements viewed as aesthetics and not under police power.

CONNECTICUT

General Statutes of Connecticut

Prohibits signs within 300 feet of any trunk line or State aid highway which give or are capable of giving w'arnings or direc-tion to traffic, except with approval of the State highway commissioner. Q 2248)

Prohibits signs on or in view from any highway which imitate or resemble an offi-cial traffic control device or railroad sign or signal. Q 2528)

Chapter entitled "Advertising Signs" (§§ 4688-4702) provides that anyone en-gaged in the outdoor advertising business

APPENDIX B

61

must secure a license to do business. A per-mit is required for the erection of any ad-vertising structure, device or display, other than upon property within 200 feet of the place where the goods advertised are manu-factured or offered for sale or where the business advertised is carried on. (Other specific exemptions are listed in sections 2337d and 2338d of the 1955 supplement.)

Advertising structures, devices and dis-plays must be substantially built, well and neatly painted and kept in good repair. (§ 4695)

Advertisements and signs shall not be dis-played within 100 feet of any public park, State forest, playground or cemetery, or within 15 feet from the outside line of any highway outside of the thickly settled or business part of a city or town (with spe-cific exceptions). Q 4696)

Notwithstanding any statutory provision to the contrary, the highway commissioner may, with the consent of the town, city or borough, permit the erection of advertising signs designed to benefit local residents or industrie, within the limits of highways, but not in any location where such signs will obstruct the view along the highway. (§ 4700, as amended by § 2338d, 1955 supp.)

Judicial Decisions

Franklin Furniture Co. v. Bridgeport, 142 Conn. 510, 115 A.2d 435 (1955). City ordi-nance requiring removal of signs projecting over sidewalks upheld.

Murphy, Inc. v. Town of Westport, 131 Conn. 292, 40 A.2d 177 (1944). Municipal regulation of billboards upheld. Aesthetic considerations can be a factor as long as there are other factors on which exercise of police power can be sustained.

DELAWARE

Delaware Code Annotated

State highway department is authorized to enforce the provisions of the Chapter en-titled "Regulation of Outdoor Advertising" (tit. 17, §§ 1101-1114), and to make, pub-lish and enforce such further regulations for the proper control and restriction of struc-tures, signs and other outdoor advertising

devices, within the State (outside the cor-porate limits of any city or incorporated village or town) as may be required to ac-complish the purposes of this Chapter. (tit. 17, § 1103)

A permit is required for the erection and maintenance of advertising devices above or upon real property. (tit. 17, § 1104)

Advertisements are prohibited on any rock, stone, tree, fence, stump, pole, mile stone, danger signal, guide sign, guide post, building or other object lawfully within the limits of any public highway. (tit. 17, § 1107)

Advertising is prohibited: on the right-of-way of any public highway; within 25 feet of any public highway, park, park-way, playground, school or church if within view of any portion of the same; upon the inside of curves or at or near a railway crossing or a highway intersection if such would obstruct the view of a traveler. Un-safe structures or advertising devices are prohibited and all advertising on rocks, trees, fences, or barricades is prohibited within 50 feet of any public highway. (tit. 17, § 1108)

No outdoor advertising, structures, signs, devices or displays for advertising purposes shall display copy which is offensive to the moral standards of the community. (tit. 17, § 1109)

Advertising signs erected in violation of the statutes or regulations promulgated thereunder are declared public nuisances and may be removed forthwith. (tit. 17, § 1111)

The following classes of signs are exempt from this chapter: (1) Signs on prop-erty which identify a business conducted thereon; may not exceed 30 square feet and must be on premises; (2) Signs (six square feet or less) upon property announcing premises for sale or rent; (3) Signs required by law in a legal proceeding or by public authority; (4) A danger or precautionary sign containing two square feet or less re-lating to the premises or relating to dan-gerous travel conditions on the highway; (5) Railroad, transportation, transmission or communication company signs for direc-tion or information of the public; (6) An-

62

OUTDOOR ADVERTISING

nouncements (six square feet or less) of any town, village or city advertising itself or local industries, meetings, buildings or his-torical markers. (tit. 17, § 1114)

FLORIDA

Florida Statutes, 1957

Chapter entitled "Outdoor Advertisers" (§§ 479.01-479.21) pertains to all the State outside the corporate limits of any city or town. (§ 479.03)

Persons engaged in outdoor advertising are required to obtain a license to do business. (§ 479.04) A permit is required for the erection of every outdoor advertising sign. (§ 479.07)

Prohibits the following outdoor advertis-ing signs: (1) those within 15 feet of the outside boundary of any federal or state highway or within 100 feet of any church, school, cemetery, public park, public reservation, public playground, state or national forest, or railroad intersection outside limits of any incorporated city or town; (2) those within 100 feet of state owned right-of-way which have intermittent, rotating or flash-ing lights; (3) those which imitate official traffic control signs; (4) those placed on the inside of a curve or which may obstruct view of approaching vehicles and, (5) those on any tree or on any right-of-way of any state maintained road. (479.11)

Requires that before outdoor advertising sign be erected, written permission be shown of owner or person in possession of land upon which sign is to be located. (§ 479.13)

Advertising signs which may be erected, if not in conflict with the provisions of subsections (2), (3) and (4) of § 479.11, include: those within 100 feet of the business place, farm or residence which relate to merchandise, services or entertainment pro-vided on the premises; those which adver-tise the property, upon which the sign is located, for sale or rent; official notices; danger or precautionary signs; and various other signs specifically listed. (§ 479.16)

No signs may be erected on land or trees adjacent to state highways without consent of the owner or agent of land upon which sign is located. (§ 821.02)

Judicial Decisions

John H. Swisher & Son, Inc. v. Johnson, 149 Fla. 132, 5 So.2d 441 (1942). Upheld statute banning billboards within 15 feet of right-of-way of state highways on basis of safety of motorists.

Hay-a-Tampa Cigar Co. v. Johnson, 149 Fla. 148, 5 So.2d 433 (1942). Statute ban-ning billboards within 15 feet of right-of-way of state highway upheld on grounds of safety. One judge specially concurring said he thought the time had come to make a candid avowal of the right of the legislature to adopt appropriate legislation based "on these so-called aesthetic, but really very practical grounds. . .

GEORGIA

Code of Georgia

Prohibits the display upon or in view of any highway any unauthorized sign, signal, marking, or device which purports to be or is an imitation of or resembles an official traffic control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any official traffic-control device or any rail-road sign or signal. (§ 68-1616)

Prohibits signs imitating those used b railroads at railroad crossings. (§ 94-511)

Prohibits all signs and obstructions upon the right-of-way of any State highway ex-cept signs erected by authority of the State Highway Department. (§ 95-609)

Prohibits all signs within the right-of-way lines of public roads in the State except route markers erected under proper au-thority. (§§ 95-2002, 95-2004)

Requires written permission be shown from owner of land (or his agent) upon which sign is located when on private prop-erty. (95-2005)

No sign may be erected in any place or position when it obstructs the view from any public road in the State to any other portion of said road. (§ 95-2006)

IDAHO

Idaho Code

Prohibits advertising anywhere on rocks or other similar natural objects. (§ 18-7017)

APPENDIX B

63

The Board of Highway Directors is given the authority to forbid, restrict or limit erec-tion of unauthorized billboards on the right-of-way of any state highway. (§ 40-120 (18))

ILLINOIS

&nith-Hurd Illinois Annotated Statutes

Prohibits signs or signals upon or in view of any highway which imitate or resemble an official traffic-control device or railroad sign or signal; prohibits signs upon or in view of any highway which hide from view or interfere with the movement of traffic or effectiveness of any traffic control device or railroad sign. (ch. 95k, § 131)

Prohibits advertising signs on highways or upon the railroad right-of-way from within 50 feet of any legal signs at or near grade crossings; prohibits all except legal signs at a public highway within 300 feet of any grade crossing; prohibits any sign on a public highway within 50 feet of any post or guide-board; and prohibits adver-tising of any kind upon any Federal aid road, State aid road, State bond issue road, or any other road under the control of the Department of Public Works and Buildings except as may be directed by that depart-ment. (ch. 121, § 160)

Judicial Decisions

Chicago v. Gunning System, 214 Ill. 628, 73 N.E. 1035 (1905). City ordinance pro-hibiting billboards in certain locations held invalid. Court said cities, towns and vii-lages have authority to regulate construc-tion and use of billboards provided it is not unreasonable but this one was unreasonable.

Hailer Sign Works v. Physical Culture Training School, 249 Iii. 436, 94 N.E. 920 (1911). Act of the legislature restricting ad-vertising structures near parks or boule-vards held unconstitutional as an unreason-able attempt to limit the use of private property for esthetics.

Thomas Cusack Co. v. Chicago, 242 U.S. 526, 37 S. Ct. 190 (1917). City ordi-nance upheld. Billboards could be entirely barred in residential blocks for fire, health and morals, therefore provision requiring

consent of a majority of owners of adjacent property prior to erection of billboard in a primarily residential district could only benefit a prospective builder of a billboard.

INDIANA

Burns' Indiana Statutes Annotated

Prohibits any advertising sign which re-sembles highway crossing signs which rail-road companies are required by law to maintain at grade crossings on public high-ways. (10-3914)

Prohibits advertising signs within the right-of-way of any state highway outside the limits of any city or town. Prohibits ad-vertising signs within 20 feet of the right-of-way limits of any state highway, outside the limits of any city or town, containing such words as "stop," "caution," "slow" or any similar words which might be construed as a warning to persons using the highway. Also prohibits advertising signs within 100 feet of the right-of-way of any State high-way which obstructs a traveler's view of the highway for a distance of 500 feet or less from the sign. (§ 36-121)

Prohibits erection of advertising signs in the right-of-way of any highway in the State highway system or within 200 feet of the right-of-way which directs or indicates on what highway a person should travel in order to reach a designated place or high-way unless written consent is first obtained from the State highway commission. (sS 36-2931)

Prohibits advertising signs which resem-ble traffic control devices, or which attempt to direct traffic, or which hide or interfere with the effectiveness of any official traffic control device or railroad sign or signal. Prohibits advertising signs on or over the roadway of any highway; within 100 feet of any highway outside the limits of any incorporated town or city which obstruct the view of the highway, or any intersecting highway, street, alley, or private driveway, of a person traveling such highway for a distance of 500 feet or less from the sign, and on any highway right-of-way outside or inside the corporate limits of any incor-porated city or town. Prohibited signs are

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OUTDOOR ADVERTISING

declared public nuisances and may be re-moved without notice by the authority hav-ing jurisdiction. Q 47-1908)

Judicial Decision

General Outdoor Advertising Co. v. In-dianapolis, 202 md. 85, 172 N.E. 309 (1930). Upheld an ordinance prohibiting billboards within 500 feet of parks, parkways and boulevards saying municipal coiporations, under the police power, could reasonably control billboards provided such regulations have some reasonable tendency to protect the public safety, health, morals, or general welfare and do not unnecessarily invade property rights. The general welfare in-cludes the fostering of the aesthetic and cul-tural side of municipal development.

IOWA

Code of Iowa, 1958

State highway commission shall order the removal of lights or light-reflecting de-vices, whether on public or private land, located adjacent to a primary road and within 300 feet of a railroad grade crossing or an intersection with another primary road which interferes with the vision of the motorist. (§ 307.5)

Billboards and advertising signs, whether on public or private property which so ob-struct the view of any portion of a public highway or a railroad track as to render dangerous the use of a public highway, are public nuisances and may be abated by the State highway commission and attorney general as to primary roads. Q§ 319.10, 319.11)

Billboards and advertising signs are not permitted within the boundary lines of the public highways. (§§ 319.12, 319.13)

Prohibits placing upon or in view of any highway any sign, signal, etc., which imi-tates or resembles an official control device, which attempts to direct traffic, or hides from view or interferes with the effective-ness of any traffic control device or railroad sign or signal. (§ 321 .259)

Billboards, whether on public or private property, which so obstruct and impair the view of any portion or part of a public

street, avenue, highway, boulevard, or alley or of a railroad or street railway track which renders their use dangerous, are nui-sances. ( 657.2(7))

Judicial Decision

Stoner McCray System v. City of Des Moines, 247 Iowa 1313, 78 N.W.2d 843 (1956). City zoning ordinance prohibiting billboards within certain zones held uncon-stitutional.

KANSAS

General Statutes of Kansas, Annotated

Prohibits any sign, signal, marking, or device which imitates or resembles an of-ficial traffic-control device or railroad sign or signal, or which attempts to direct traffic, or which hides from view or interferes with the effectiveness of any official traffic con-trol device or railroad sign or signal. Q 8-516)

It is unlawful to advertise any alcoholic liquor by means of a billboard along public highways, roads and streets, or for any owner or occupant of any property to per-mit any billboard advertising alcoholic liquor to remain on such property. Q 41-714(2))

The State highway commission is au-thorized to remove any and all billboards or signs located within the limits of the right-of-way of State highways which bear advertising of any kind or character. (§ 68-422)

Judicial Decisions

Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99 (1923). City zoning ordinance valid. Language favoring regulation for aesthetics.

Crawford v. Topeka, 51 Kan. 756, 33 Pac. 476 (1893). City ordinance invalid.. Set back requirement held unreasonable.

KENTUCKY

Kentucky Revised Statutes

The Governor's Cabinet is authorized to submit to the General Assembly its plans

APPENDIX B 65

for a system of State highways and park-ways, together with regulations essential to the promotion of an appropriate, orderly and coordinated development of lands ad-jacent to these highways and parkways.. The plans will be designed to include the regulation of outdoor advertising signs, other uses of property along the adjacent frontages, and the conservation of scenic and historic places and the natural beauty of the countryside. (sS 147.080)

No person shall erect on or near a public highway any signboard or other contrivance similar to the danger signals used by rail-roads, interurbans and electric railway com-panies at road crossings. (§ 277.160 (2))

LouIsIANA

Louisiana Revised Statutes, 1950

Prohibits upon any highway the erection of any sign imitating any warning or direc-tion sign, etc. Q 32:341)

Persons engaged in outdoor advertising business are required to pay an annual license tax. (47:394)

No signs, signals or other devices may be placed upon or operated and maintained on State highways by any person except the State department of highways. Q 48:345)

When an advertising sign located within 50 feet of the outer edge of the right-of-way constitutes a dangerous hazard to the trav-eling public, the State Department of High-ways may, after due notice to the owner, apply to the district court of the parish in which the sign is located for the process necessary to effect the removal of the sign. (§ 48:347B)

Judicial Decisions

State ex rel. Civillo v. City of New Or-leans, 154 La. 271, 97 So. 440 (1923). City ordinance prescribing business establish-ments in residential streets, does not neces-sarily rest on aesthetic considerations but may be sustained on other police power purposes.

New Orleans v. Perga.ment, 198 La. 852, 5 So.2d 129 (1941). City ordinance requir-ing permits for construction and mainte-

nance.of billboards valid. Aesthetics may be a consideration along with other factors.

MAINE

Revised Statutes of Maine, 1954

Landscaping done by the State Highway Commission along State and State aid high-ways shall not be done in any manner so as to prevent passers-by from having a clear and unobstructed view of any outdoor ad-vertising panel. (ch. 23, § 96)

Anyone engaging in the business of out-door advertising must obtain a license from the State Highway Commission, but this 9rOvision is not applicable to outdoor ad-vertising in the compact or built up section of any town or city. (ch. 23, §§ 137, 147)

A permit, issued by the State Highway Commission, is required for all outdoor advertising structures. Exempted from this provision are: (1) advertising signs upon the property whereon the goods advertised are manufactured or sold, or the business or profession so advertised is carried on or practiced; (2) signs which advertise for sale or rent the real property upon which the sign is located. The exempted displays may not exceed ten in number and shall be within 1,000 feet of the building wherein the goods advertised are manufactured or sold or the business or profession advertised is carried on or practiced, except that if the building is not adjacent to a public way designated by State or Federal highway route numbers, the outdoor advertising displays shall be within 300 feet from the junction of the nearest such highway and the traveled way constituting the approach to the building, and such signs shall not ex-ceed 2 in number or 200 sq. feet in total area. None of such signs shall be of an area greater than 100 sq. feet or shall endanger the safety of persons using the highways. None of the signs permitted in accordance with the above provisions shall be: I. Within the full width of the right-of-way of any state or state aid highway; II. Within 33 feet of the center line of any such highway if the right-of-way is less than 33 feet from the center line of the highway; III. Within 20 feet from the outside edge of any of the paved portion of any such highway having

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OUTDOOR ADVERTISING

more than two travel lanes and having a total paved portion in excess of 24 feet in width. (ch. 23, § 138)

Provisions relative to applications for permits and licenses, fees and the disposi-tion thereof. (ch. 23, §§ 139-141)

Prohibits outdoor advertising signs: within a distance of 300 feet of the inter-section or junction of a highway with an-other highway or railway; within 300 feet of any public park, reservation, public f or-est, public playground, school, church or cemetery; within 50 feet from the nearer line of the traveled way of a public high-way; on any public highway, park or other public property on which in the judgment of the Commission is or would be injurious to property in the vicinity, or would injuri-ously affect any public interest or endanger the safety of persons using any highway; or in a place wherein the erection, construction or maintenance thereof is or shall be pro-hibited by municipal ordinance or regula-tion; on private property except with the consent of the owner or lessee; or whose area shall exceed 900 sq. feet; or which, in its operation shall move or simulate mo-tion, or which is or shall be painted upon or annexed to any rock or tree. (ch. 23, § 142)

Defines display. (ch. 23, § 146) Provides penalty for erection of illegal

advertising signs. (ch. 23, § 148) Prohibits the erection within 500 feet of

the nearest right-of-way boundary line of any State turnpike any advertising sign in order to better safeguard the interest and investments of the State and its people in the State turnpike system and eliminate dangerous hazards. Exempted from this provision are advertising signs upon the property where the goods so advertised are manufactured or sold, or the business or profession so advertised is carried on or practiced, or which advertise for sale or rent the real property upon which the sign is located. Such signs however must not ex-ceed ten in number or a total area of 250 square feet and shall be within 300 feet of the building where the goods advertised are manufactured or sold or the business or profession advertised is carried on or con-ducted. (ch. 23, § 149)

In order to guide the users of the turnpike system to the major recreational areas of the State (8 are specifically designated) there shall be erected and maintained at strategic points on the right-of-way beside the lanes of traffic approaching exits thereto, separate descriptive and directional signs of such design that each sign will be con-spicuous and readable when traveling at the maximum lawful speed. The State highway commission shall erect and maintain said signs on the State constructed and main-tained interstate system and the Maine turnpike authority shall erect and maintain said signs on the highways constructed by them. The State and authority shall cause the wording of the signs to be sufficiently descriptive of the area to identify it clearly to the traveling public. In the absence of a specific recreational area of the State, the State highway commission, on the State constructed and maintained interstate sys-tem and the Maine turnpike authority on the highways constructed by this authority, may erect, situated near an exit, suitable signs at the exit designating motel, hotel and restaurant areas. (ch. 23, § 149-A)

No advertising device in, upon or above any public highway is allowed to be erected, displayed or maintained so as to obstruct clear vision of an intersecting highway or highways. State police are authorized to re-move all advertising devices in violation of this provision. (ch. 23, § 150)

MARYLAND

Annotated Code of Maryland, 1957

Anyone engaged in the business of out-door advertising is required to pay a license fee. A permit is required for each billboard maintained or used provided such advertis-ing structure is located outside the limits of any incorporated city, town or village and within 500 feet of a public highway. No one not engaged in the business of outdoor ad-vertising shall erect or maintain outside the corporate limits of any city, town or village and within 500 feet of a public highway any billboard, etc., without a permit. No per-mits will be granted, except for official di-rectional or warning signs erected by or

APPENDIX B

67

with the approval of the commission, for the erection of advertising to be located within a distance of 200 feet of an intersection of a public highway with another highway or parkway or with a railroad or street railway or at any point where it would obstruct the view of any such intersection. No permits will be issued for signs so illuminated as to create a hazard to one operating a motor vehicle upon the State highway. Any per-son whose application for a permit is re-jected by the commission has the right of appeal with trial de novo within ten days to the circuit court where the sign is to be located. (Art. 56, §§ 201, 202, 203, 204(e) (1), (2))

Existing advertising structures may be removed if they create a hazard to a motor-ist upon a State highway. State roads com-mission may remove advertising devices if erected or maintained contrary to the ap-plicable provisions. Anyone erecting, main-taining or using an advertising device with-out complying with the applicable provi-sions shall be guilty of a misdemeanor. (Art. 56, §§ 207, 208, 210)

Prohibits advertisements, signs, notices or other writing or printing on or attached to any stone, tree, fence, stump, pole, building or other structure which is in or upon the public highway or which is on the property of another without first obtaining the written consent of such owner. The county board of education in Kent and Queen Anne's counties are permitted to display signs, etc., not more than 300 yards from any school or school building, promulgating the safety of students, on or abutting any road or highway which passes near any school or school building. (Art. 66C, § 366)

The State Planning Commission is au-thorized to prepare and submit to the Gen-eral Assembly plans for a system of existing and proposed State highways and park-ways, together with regulations to promote the development of lands along or adjacent to such highways and parkways. Such plans and regulations shall be designed to pro-mote health, safety and general welfare; to regulate, among other things, the location of outdoor advertising signs and other uses of property along the adjacent frontages; and to conserve scenic and historic places

and the natural beauty of the countryside. (Art. 88C, § 3)

Prohibits advertisements, signs, notices or other writings or printings other than no-tices posted in pursuance df law on or to any stone, tree, fence, stump, pole, building or other structure which is in or upon the pub-lic highway (or which is on the property of another, without first obtaining the written consent of such owner). Anyone violating the provisions of this Article shall be guilty of a misdemeanor. However, it shall be illegal for anyone other than the State Roads Commission or incorporated cities or towns to display within 300 feet of a road, street or highway a sign bearing the word or words: stop, curve, warning, danger, listen, look, school or slow, or any other such word or words used or to be used in directing drivers. (Art. 89B, § 103)

In order to protect the safety, health and welfare of the traveling public, no billboards or any signs, posters or display advertising of any kind are permitted within 500 feet of the State-owned right-of-way adjacent to the Northeastern Expressway. No one may lease, rent or permit the use of any of his property within 500 feet of the right-of-way line of the Northeastern Expressway for the purpose of erecting an advertising sign of any kind. A property owner may, with a permit issued first by the State Roads Com-mission without charge, erect advertising signs on his property advertising the sale or lease of said property, the sale of produce grown or made or a service performed there-on. The location and size of such signs may be regulated by the Commission. No per-mits are required to erect a sign denoting a place of religious worship or an historical monument or location, provided such sign is located in accordance with the rules and regulations of the State Roads Commission. (Art. 89B, §§ 226, 229)

No one shall rent, lease or permit the use of his property within 600 feet of the right-of-way line of any expressway within the State for the purpose of erecting any bill-board, sign or advertising structure of any kind. Any lease executed prior to the effec-tive date of this Act for the purpose of such advertising structures shall become null and void on June 1, 1961. A property owner may,

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OUTDOOR ADVERTISING

however, under a permit issued by the State Roads Commission without charge, erect advertising signs on his own property adver-tising the sale or lease of said property or the sale of prodube grown or made thereon or a service performed on the property. No permits are required to erect a sign denoting a place of religious worship or an historical monument or location provided such signs are located in accordance with the rules and regulations of the State Roads Commission. Nothing herein shall prevent the owner of land abutting a highway other than an expressway, which runs parallel or par-tially parallel to an expressway and which is within 600 feet of an expressway, from using or permitting the use of said land for out-door advertising purposes provided any ad-vertising sign erected thereon shall face the highway which is not constructed as an ex-pressway. The State Roads Commission has the authority to negotiate and determine the amount clue parties under leases for a longer period than three years which have been entered into prior to the effective date of this Act and to pay the party or parties such amount determined. If after the cut off date a billboard, etc., is located within 600 feet of the right-of-way of any expressway so as to create or cause a traffic hazard or be detri-mental to the w'elf are of the State, the State Roads Commission is authorized to have such structure removed or relocated. If such structure is located under the provisions of a lease, the Commission is authorized to ac-quire by negotiation or condenmation the interest in the lease. (Art. 89B, §§ 231, 232, 233)

Judicial Decision

Grant v. il/I a.yor and City Council of Bal-timore, 212 Md. 301, 129 A.2d 363 (1957). Zoning ordinance requiring removal of bill-boards within 5 years held reasonable and constitutional.

MASSACHUSE'PTS

Annotated Laws of Massachusetts

Outdoor Advertising Division is created under the Department of Public Works. A board, consisting of three members, one of

whom shall be the Commissioner of Public Works, or a representative designated by him, shall regulate and control the erection and maintenance of billboards, signs or other advertising devices in the public in-terest. (ch. 16, §§ Sc, Sd)

Whoever affixes to a tree in a public way or places any notice, sign, advertisement or other thing shall be punished by a fine of not more than fifty dollars. (ch. 87, § 9)

The Outdoor Advertising Board may make, amend or repeal rules and regulations for the proper control and restriction of billboards, signs and other advertising devices, except as provided in ch. 93, § 32, on public way or on private property within public view of any highway, public park or reser-vation. Such rules and regulations may prescribe standards of size, set-back and clear-ance and may require said billboards, etc., be licensed by the board by the issuance of permits and permit fees. (ch. 93, § 29)

Billboards or other advertising devices which advertise or call attention to any business, article, substance or any other thing are prohibited on any public way or on private property within public view from any highway, public park or reservation unless in conformance to the rules and regu-lations and ordinances and by-laws as established under •ch. 93, § 29. Exempted are signs erected in conformance with law and which advertise or indicate either the person occupying the premises in question or the business transacted thereon, or advertise the property itself for sale or rent. (ch. 93, § 30)

Any advertising device erected after Au-gust 20, 1920 without authorization or permit in cases where such authorization or permit is required or maintained after such date in violation of any regulation shall be deemed a nuisance and may be removed. (ch. 93, §30A)

Whoever paints, or puts upon, or in any manner affixes to, any fence, structure, pole, rock or other object which is the property of another, whether within or without the limits of the highway, any advertisement or notice which is not required by law to be posted thereon, without first obtaining the written consent of the owner or tenant of such property, shall, upon proper complaint,

APPENDIX B

69

be fined not more than ten dollars. Any ad-vertisement or notice, etc., placed within the limits of a highway in violation of this sec-tion shall be considered a public nuisance. (ch. 266, § 126)

Advertising on public ways, in public places and on private property within pub-lic view may be regulated and restricted by law. (Constitution of Massachusetts, Art. 50, § 180)

Judicial Decisions

General Outdoor Advertising Co., Inc. v. Department of Public Works, 289 Mass. 149, 193 N.E. 799 (1935), appeal dismissed on motion of appellants, 65 S. Ct. 495 (1936). Sustained billboard regulaticms adopted by Department of Public Works pursuant to act of legislature. Held State could authorize cities or towns to regulate advertising by ordinance or by-laws. It is within the reasonable scope of the police power to preserve scenic beauty in conjunc- tion with the promotion of safety of travel on the public highways and the protection of travelers from unwelcome advertising.

Lexington v. Governor, 295 Mass. 31, 3 N.E. 2d 19 (1936). Aesthetics were sufficient to sustain the exclusion of an attor-ney's sign from a residential district set up by town zoning law.

Town of Milton v. Donnelly, 306 Mass. 451, 28 N.E. 2d 438 (1940). Municipal regu-lation of size of billboards sustained.

Barney & Casey Co. v. Town of Milton, 324 Mass. 440, 87 N.E. 2d 9 (1949). As- thetic considerations may not be disre-garded in zoning law but they alone do not justify restrictions on private property merely to preserve beauty.

Gaertner v. Donnelly, 296 Mass. 260, 5 N.E. 2d 419 (1936). Court denied recovery of "rent" for "use and occupation" where defendant had sign on plaintiff's roof, say-ing that the evidence, as the arrangement made by the parties and as to the use made of the roof by the defendant, goes no further than to warrant the finding of a license to the defendant to erect and maintain the sign. Reference to a monthly rental did not create a landlord-tenant relationship. The

court granted leave to substitute a declara-tion based on the contract of license.

Baseball Publishing Co. v. Bruton, 302 Mass. 54, 18 N.E. 2d 362 (1938). Court granted specific performance of a writing titled "lease" saying that the writing in question giving plaintiff the "exclusive right and privilege to maintain advertising sign

on wall of building" but leaving the wall in the possession of the owner with the right to use it for all purposes not forbid-den by the contract and with all the respon-sibilities of ownership and control, is not normally a lease, but a license. However the court then said that because of the wording in this writing it is not a license but an easement in gross and granted specific performance. The court found no objection to treating the writing as a grant for one year and a contract to grant for four more years an easement in gross thus limited to five years.

MICHIGAN

Michigan Statutes Annotated

Creates a special committee to study the motor vehicle laws and outdoor advertising practices of the state and compare these laws and practices with the laws and prac-tices of other states and with the uniform vehicle code. (Senate Resolution No. 24, April 9, 1958)

Prohibits any advertising devices to be erected on or along any highway without the approval of the commissioner having jurisdiction over such highway; prohibits advertising devices from any fence, build-ing, rock that marks, or is on the line of, the highway right-of-way except to advertise a business conducted upon the property abutting on the highway where the adver-tisement is situated. Prohibits the erection and maintenance on or along any highway or within 200 feet of the center line thereof any signs, etc., except official signs, which contain reflector buttons, reflex reflectors or any similar devices. (§ 9.1405)

Prohibits all signs except official signs and guide posts within 500 feet from any high-way intersection or railroad or railway crossing, or so as to obstruct view of any such intersection or crossing or of a turn

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OUTDOOR ADVERTISING

or sharp change of alignment in the high-way. (9.1406)

It is a misdemeanor to erect any illegal signs, guide posts and advertising signs. The proper commissioner has authority to re-move all illegal signs. (§§ 9.1407, 9.1408)

No person shall place along any highway any sign which resembles or imitates an offi-cial traffic control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any traffic control device or any railroad sign or signal, or any blinking, oscillating or rotating light similar in color, and design that may be mistaken for the distinguishing lights of emergency vehicles or that create a hazard for highway users. (§ 9.2315)

Judicial Decisions

Wolverine Sign Works v. City of Bloom-field Hills, 279 Mich. 205, 271 N.W. 823 (1937). Regulation held invalid, court say-ing that a municipality cannot arbitrarily order the demolition of signboards but that the maintenance of billboards is a permis-sible subject for regulation as long as aes-thetics is not the motivating factor.

Frischkorn Construction Co. v. Lambert, 315 Mich. 556, 24 N.W. 2d 209 (1946). Township zoning ordinance building restric-tion held invalid. Aesthetics can be incident to but not the motivating factor under police regulation.

Hitchman v. Oakland Township, 329 Mich. 331, 45 N.W. 2d 306 (1951). Zoning ordinance concerning size of houses held invalid as unreasonable regulation. Zoning ordinance must be for public health, safety and general welfare, aesthetics may be in-cident thereto but cannot be motivating factor.

MINNESOTA

Minnesota Statutes, 1953

Any person who in any manner places any advertisement within the limits of a public highway or who affixes any advertisement to any stone, tree, fence, stump, pole, mile-board, mile-stone, etc., within the limits of a public highway shall be guilty of a mis-

demeanor. Any such advertisement in or upon a public highway in violation of the above provisions may be removed by the authority having jurisdiction over such highway. (§ 160.271, subd. 3)

No advertisement or sign shall be dis-played within a distance of 300 feet from the center of the traveled part of the Evergreen Memorial Drive except within a municipal-ity or when erected by public authority for the regulation of traffic or when such sign is upon the wall of a building in which the goods advertised are offered for sale or the business advertised is conducted. Q 160.511, subd. 2)

No person shall place, maintain, or dis-play upon or in view of any highway any sign which imitates or resembles an official traffic control device or railroad sign or sig-nal, or which attempts to direct the move-ment of traffic, or which hides from view or interferes with the effectiveness of any offi-cial traffic control device or any railroad sign or signal. All such prohibited signs are declared nuisances and the authority having jurisdiction over the highways is empowered to remove them without notice. (§ 169.07)

Prohibits all advertising signs or other similar obstructions over or adjacent to any highway between any approach sign and the grade crossing which it marks and pro-hibits all signs over or adjacent to any pub-Jic highway which resemble railroad warn-ing signs. (§ 219.29)

Judicial Decision

Oscar P. Gustaf son Co. v. Minneapolis, 231 Minn. 271, 42 N.W. 2d 809 (1950). City ordinance prohibiting overhanging signs held valid as improvement of appearance of streets.

MISSISSIPPI

Mississippi Code Annotated, 1942

It is a misdemeanor to erect or maintain any billboard, advertising or similar struc-ture outside the corporate limits of a city or town, within a radius of 200 feet of the intersection of any two or more public roads, or intersection of a public road and railroad, or along such road within 200 feet

APPENDIX B

71

of such railroad, or at or near any curve or bend in a public road. Q 2021)

The State Highway Commission has the iower to make proper and reasonable rules, regulations and ordinances for the placing, erection, removal or relocation of poles, signboards, etc. which may in the opinion of the Commission contribute to the hazard upon any of the State highways. Any viola-tion of such rules and regulation is a mis-demeanor. ( 8038(1))

Prohibits any unauthorized sign, signal, marking or device upon or in view of any highway which resembles or imitates an offi-cial traffic control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any official traffic control device or any railroad sign or signal. Prohibits erection of any billboard or advertising sign of any kind or description closer than 50 feet to the center line of any state highway. Ex-empted are signs upon private property ad-jacent to highways which give useful direc-tional information provided they are not located closer than 50 feet to the center line of the highway. Every prohibited sign erected is a public nuisance and the proper authority is empowered to remove same after notice to the owner thereof. (8159(a), (b))

Requires a tax to be paid by everyone en-gaged in the business of outdoor advertising. (§ 9433)

Missouni

Missouri Revised Statutes, 1949

The State Highway Commission is authorized to remove advertising signs and other obstructions to the lawful use of a State highway and to prohibit and regulate the erection of advertising or other signs on the right-of-way of State highways. The Commission is authorized to prohibit the display of any advertising matter within a distance of 300 feet of permitted signs. Any person who erects advertising signs, etc., on the right-of-way of any State highway without the written permission of the Com-mission is deemed guilty of a thisderneanor. (227.220(1), (2))

Judicial Decisions

St. Louis Gunning Adv. Co. v. St. Louis, 235 Mo. 99,137 S.W. 929 (1911). Municipal ordinance regulating size and construction of billboards upheld on grounds of public safety, health and morals.

Kansas City Gunning Adv. Co. v. Kansas City, 240 Mo. 659, 144 S.W. 1099 (1912). City ordinance held applicable to erection of future billboards and to future mainte-nance of any which had been erected prev-iously. City conceded that the section of the ordinance prohibiting billboards within 100 feet of a public park or boulevard was invalid but the court upheld the rest of the ordinance, including the set back re-quirement of 12 feet from street line.

St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269, 39 S. Ct. 274, 63 L. Ed. 599 (1919). Upheld city ordinance limiting size, height and placement of billboards and requiring a permit for their construction. Municipal regulation may include inciden-tal reasons founded in part on esthetics.

Kansas City v. Liebi, 298 Mo. 569, 252 S.W. 404 (1923). Upheld city ordinance pro-hibiting billboards within 35 feet of either side of contemplated boulevard in residen-tial benefit district.

Fred Wolf ernuin Building Co. v. General Outdoor Adv. Co., 30 S.W. 2d 157 (Kansas City Ct. of App., 1930). Permits may be required by municipality for construction and maintenance of billboard. Licensing boards without authority to refuse permit to applicant who has complied with require-ments prescribed by ordinance.

MONTANA

Revised Codes of Montana, 1947

Every person who willfully or maliciously commits trespass by putting upon any prop-erty belonging to the State, or to any city, county, town or village, or dedicated to the public any notice, advertisement, etc., with-out license of the owner, is guilty of a mis-demeanor. Q 94-3308(6))

NEBRASKA

Revised Statutes of Nebraska

No advertising signs shall be placed along or upon any public road or highway within


300 feet of a railroad crossing or within 300 feet of the intersection of any two cross-roads of the public highway at grade or along or upon any State highway at any other point without a written permit from the Department of Roads. Permits issued shall be numbered serially and each sign shall bear its permit number. Fees for such permits shall be not less than twenty-five cents nor more than $5.00 for each sign. The department may, without stating cause, revoke the permit for any sign along a State highway and remove the same. If the sign removed was erected less than three months, the permit fee is returned. No permit shall be issued for any sign of more than ten square feet surface. Q 39-714.01)

Any person violating any of the provi-sions of the above statute is deemed guilty of a misdemeanor. Q 39-714.02)

Prohibits erection and maintenance upon any highway of any sign, marker, etc., which resembles an official traffic control device erected under proper authority. (§ 39-791)

Prohibits posting in any manner any bills, billboards, etc., to any bridge or culvert in the State except official signs and markers. (§ 39-807)

NEVADA

Nevada Revised Statutes

Any form of outdoor advertisement erected or maintained except as provided by law shall be deemed a public nuisance and shall be removed by the proper authority. Q 405.020)

It shall be unlawful, except within the limits of any city or town through which the highway may run, to place in any man-ner on any building, fence, gate, bridge, rock, tree, board or structure any outdoor advertising, etc., within the department of highways' owned or controlled right-of-way of any State highway or road; within 20 feet of the main traveled way of any unim-proved highway; or on the property of an-other within view of any such highway, without such owner's written consent. Ex-empted are notices required by law or offi-cial highway signs. Q 405 .030)

Requires that permits be issued by the county clerk for the erection of any bill-

board or other form of advertisements out-side any city or town (a) on the public domain (b) on land owned or leased by such advertiser but not used as the site for manu-facturing the goods or articles advertised, or (.c) on the lands of another, except where, by painting, an area of the barns or out-buildings thereon may be preserved. Signs erected by the landowner or occupant and intended to benefit the land or improve-ments and advertising the business con-ducted in the buildings on the land are ex-empt. Upon payment of $5.00 fee, the county clerk shall issue a permit. Exempted from the fee are signs or billboards of any farm bureau, chamber of commerce or law-ful authority to advertise any city, town, geographic area, public event. (§ 405.040)

No permit shall be granted for the erec-tion of any billboard, etc., which may meas-urably destroy the natural beauty of the scenery or obscure a view of the road ahead or of curves and grades or intersecting high-ways or railways. Q 405.050)

Anyone who erects or maintains any bill-board, etc., in violation of any provision of law is guilty of a misdemeanor. (§§ 405.100, 405.110(4))

No advertising signs, signboards, boards or other materials shall be placed upon or over any State highway, within the highway right-of-way, upon any bridge or other structure thereon, or be so situated with re-spect to any public highway as to obstruct clear vision of an intersecting highway or highways or otherwise so situated as to con-stitute a hazard upon the State highway. Q 405.110)

NEW HAMPSHIRE

New Hampshire Revised Statutes, An-not ated

Prohibits erection of any roadside adver-tising within a distance of 400 feet of any highway intersection of Class I and II high-ways or railroad grade crossings when said advertising obstructs the view of said inter-sections and crossings, rendering the ap-proach to same by vehicular traffic hazard-ous. (249.49)

Any person placing any advertising in

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any manner on a fence, bridge or other structure or upon a rock or other natural object, the property of another, without his consent shall be fined not more than twenty-five dollars. (§ 572.43)

NEW JERSEY

New Jersey Statutes Annotated

Any person who erects within the limits of any State highway, county public road or municipal street or road any sign or en-croachment without first obtaining permis-sion to do so from the proper authority, is a disorderly person. (§ 2A:170-67)

Prohibits placing in any manner any ad-vertisement or notice not required by law, on a fence, structure, pole, rock, tree or other object which is the property of an-other, whether within or without the limits of a public highway, without first obtaining the consent in writing of the owner or tenant of the property or of the proper authority having jurisdiction over the highway if placed on a highway. Any violation of these provisions is a public nuisance. (§27:5-1, 5-4)

The board of chosen freeholders has au-thority to remove all signboards, whether advertising, cautionary or directory, within the limits of a county road. (§ 27:16-35)

Prohibits any unauthorized sign or device to be maintained or displayed upon or in view of any highway which imitates or re-sembles an official traffic sign or which at-tempts to direct the movement of traffic or which hides from view or interferes with the effectiveness of any official traffic sign. Any such prohibited sign shall be deemed a public and private nuisance. (§§ 39:4-183.3, 4-183.4)

Requires anyone engaged in the business of outdoor advertising to obtain a license from the Director of the Division of Taxa-tion in the New Jersey Department of Tax-ation and Finance and a permit for the erection, use and maintenance of each bill-board. (§ 54:40-20)

Requires anyone erecting, maintaining or using any billboard for the display of out-door advertising matter to obtain a permit from the Director of the Division of Taxa-tion. If the site of the proposed outdoor ad-

vertising structure is within the confines of any public highway, park or other public property, the applicant is required to file the written consent of the public authority con-trolling such public property. Q 54:40-22)

No permit shall be issued for a billboard structure to be used for outdoor advertising purposes which is within 500 feet of any intersection of a highway with another high-way or with a railroad or street railway. (§ 54:40-27)

No permit other than a renewal shall be issued for the erection of any advertising display in any location which in the judg-ment of the Director would be injurious to the projects in the vicinity or injuriously affect any public interest. Q 54:40-29)

No permit shall be issued for the erection of any structure to be used for outdoor ad-vertising purposes which exceeds 25 ft. in height and 60 ft. in horizontal dimension or the advertising surface of which exceeds 1,000 sq. ft. in area except where such board is attached to a building or is not readable from a State highway. Q 54:40-30)

No billboards, etc., shall be erected which in any way simulate official traffic control signs or devices. No permits will be issued for any billboard which, in the judgment of the Director of the Division of Taxation, will create a condition hazardous to traffic on an adjacent highway or interfere with the view of another advertising display for which a permit has been issued. (§§ 54:40-28, 40-31)

No permits are required, for billboards used (1) to advertise the sale or rent of property upon which located; (2) for legal advertisements; (3) for official cautionary, informative or directory signs; (4) for the display on any premise, or for display on any equipment on the premises, within 200 feet from the point on the premises where the business, manufacturing, sale or service is conducted, and that such display is not owned and maintained by anyone licensed as an outdoor advertiser for profit. Such dis-play may advertise only: the name of the business conducted on the premises, the na-ture of the business, the name of the pro-prietor, articles manufactured, or for sale or service offered and obtainable on the prem-ises. (54:40-35)

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Judicial Decisions

Passaic v. Paterson Bill Posting Co., 72 N.J.L. 285, 62 Ati. 267 (1905). City ordi-nance regulating billboards held invalid. Aesthetics are not a matter of necessity and therefore do not justify use of police power.

Federal Advertising Corp. v. Fairlawn, 8 N.J. Misc. 619, 151 Atl.285 (1930). Munici-pal set back requirement held invalid in that it was not a zoning ordinance and could not be sustained under the police power.

O'Mealia Outdoor Adv. Co. v. Borough of Rutherford, 128 N.J.L. 587, 27 A.2d 863 (1942). Aesthetic considerations alone can-not justify regulation. Municipal ordi-nances prohibiting billboards except where business on the premises held to take prop-erty without compensation, not justified under the police power.

United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362 (1952). Borough ordinance containing distinction between outdoor advertising and signs ad-vertising goods manufactured or sold on the premises upheld as valid classification. Provision which required removal of non-conforming signs within two years of the effective date of the ordinance was invalid, though separable from the balance of the ordinance, because it conflicted with statute providing that a non-conforming use exist-ing at the time of the passage of the ordi-nance might be continued indefinitely.

NEW Mnxico

New Mexico Statutes, 1953

No person shall place, erect or maintain any advertising sign, signboard or device, upon or over the right-of-way or right-of-way fences of any public highway within the State outside the limits of any incorpo-rated city, town or village. Q 55-7-9)

Prohibits the erection or maintenance of any advertising sign, sigriboard or device, upon or over the right-of-way of or upon any land adjacent to any public highway, outside an incorporated city, town or village under any of the following conditions: (a) within 300 feet of an intersection of a high-way with another highway, at a point where such signs would obstruct the line of sight

between vehicles on either of said inter-secting highways when such vehicles are at any point within a distance of 300 feet from such intersection; (b) where such sign obstructs the line of sight of a train at any point within 1200 feet of an intersection of a highway with a railroad from any point on such highway within 500 feet of such intersection; (e) if such sign resembles an official highway marker; (f) if such sign is the same general shape or resembles a rail-road crossing or other warning or danger sign; (g) if such sign is on the inside of a curve of a highway so as to obstruct the line of sight from one vehicle to another on the highway when the vehicles are within a distance of 1200 feet of each other; (h) if such sign or device together with one or more other advertising signs in a series ad-vertising the same business, establishment, or advertising products, commodities, exhib-its or services, sold or exhibited at the same place or places of business, and are in prox-imity to each other, and are of such con-tinuity of context, distinctive copy, catch lines (not trade marks), art or shape as to naturally direct the attention of the travel-ing public from one such sign to another. Q 55-7-10)

No person shall erect or maintain any ad-vertising signs except signs advertising a business carried on on the premises where the same is located, within 100 feet of the center line of the right-of-way as surveyed of any State highway outside an incorpo-rated city, town or village, unless an annual permit shall have been issued therefor. (§ 55-7-11)

Existing signs, signboards and devices so located and designed that they are not within any of the prohibitions specified herein but for which a permit would be re-quired if erected after the effective date of this act may remain in their present loca-tions provided an application for permit together with the required fees be made within 30 days. If not so done, such signs shall be removed by the owner or user upon written notice by the State highway corn-mission. Required permits shall be dis-played on the sign. Permits may be re-yoked by the highway commission where such sign shall be or become in violation of

APPENDIX B 75

this act. In such an event, the owner shall remove the sign at his expense. Q 55-7-12)

Signs placed in violation of this act are declared to be a public nuisance. (55-7-13)

Provisions of the act relating to advertis-ing signs or devices [55-7-9 to 55-7-161 shall only apply to those highways designated by the State highway commission by a resolu-tion duly adopted by such commission. Q 55-7-16)

Fees received by the highway commission under the provisions of the act shall be l)aid into the State treasury and covered into the State road fund. Q 55-7-17)

NEW YORK

New York Consolidated Laws Service

In order to conserve the natural beauty of and the investment of the State in State parks and parkways by preserving and regu-lating them for public uses, for the resort of the public for recreation, transportation, pleasure, air, light and enjoyment by keep-ing them in good order for the welfare of society, and to prevent the unrestricted use of signs and advertising structures and de-vices immediately adjacent to them, no per-son shall erect or maintain within 500 feet of the border of any State park or parkway any advertising sign or advertising structure except under written permit from the re-gional State park commission in which the park or parkway is located. Exempted are signs erected or maintained upon property and placed on the fronts of buildings in con-nection with a business conducted therein provided that such signs have an area of not more than 24 sq. ft., do not extend more than 15 ft. above the ground level, and are placed on the fronts of buildings. (Conser-vation Law, § 675)

A person who willfully places in any man-ner any business or commercial advertise-ment on or to any stone, tree, fence, stump, pole, building or other object, which is the property of another, without first obtaining the written consent of the owner or within the limits of a public highway is punishable by fine or imprisonment or both. (Penal Law, § 1423 (11))

Except as otherwise provided, the erection

or maintenance of any advertising device within 500 feet of the nearest edge of the pavement of the New York State Thruway without a written permit therefor granted by the New York Thruway Authority is prohibited. Any illegal advertising erected or maintained is declared to be a public nui-sance and may without notice be abated and removed by the proper authority. Ex-empted are advertising devices which are erected or maintained on property for the purpose of setting forth or indicating the name or type of business or profession con-ducted thereon, advertising not visible from any traveled portion of the thruway sys-tem, indicating the sale or lease of the property upon which they are placed or di-rectional or other official signs. (Public Authorities Law, § 361-a)

No outdoor advertising sign other than those which refer to the business actually conducted on the premises or to the sale or rental of such premises and no such sign or device exceeding ten feet in height above the sidewalk adjacent to the property on which such sign or device is located, shall be erected within 500 feet of the Whitestone bridge project, or the Brooklyn bridge proj-ect or the approaches and connections of such projects, if within view thereof. (Pub-lic Authorities Law, § 569-b)

Judicial Decisions

Whitmier & Filbreck Co. v. Buffalo, 118 Fed. 773 (C.C.N.Y. 1902). City ordinance prohibiting erection of billboards exceeding 7 feet in height as public nuisances, held to apply prospectively only and not to author-ize destruction of existing ones.

People v. Green, 85 App. Div. 400, 83. N.Y.S. 460 (1903). The Greater New York Charter did not empower park board to adopt ordinances prohibiting posting of signs visible from park or parkway and makingviolation a misdemeanor.

Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. 120 (1925). Zoning ordinance restrict-ing height of apartment building and set-back requirement upheld. Police power not limited to health, morals or safety or to suppression of what is offensive, but extends to public convenience or general prosperity.

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Validity of a regulation depends on cir-cumstances of each case. In this case the regulation was not arbitrary or unreason-able.

Dowsey v. Village of Kensington, 257 N.Y. 221,177 N.E. 427 (1931). Zoning ordi-nance limiting property within village to residential use held invalid as applied to certain property which was better suited for business purposes but restricted for aesthetic reasons. The hardship on this in-dividual was held to be unreasonable. "Aesthetic considerations are, fortunately, not wholly without weight in a practical world. Perhaps such consideration need not be disregarded in the formulation of regula-tions to promote the public welfare. 'Public welfare' is a concept that has been widened

. . as yet, . . . no judicial definition to include purely aesthetic considerations."

Town of Greenburgh v. General Outdoor Adv. Co., 109 N.Y.S.2d 826 (1951). Town ordinance permitting only one billboard, much smaller than any of defendant's pre-viously erected billboards, was invalid be-cause it was not for purpose of public safety.

Perimutter v. Greene, 259 N.Y. 327, 182 N.E. 5 (1932). State may use the highway for any public purpose not inconsistent with or prejudicial to its use for highway pur-poses. Screening a large billboard at a dan-gerous curve because it may divert motorists attention is a reasonable act for the public. Public right to use highway is superior to right to be seen from the highway. The court also said that aesthetics may be taken into consideration as a basis for exercise of the police power.

Mid-State Adv. Co. v. Bond, 274 N.Y. 82, 8 N.E.2d 286 (1937). Ordinance pro-hibiting construction of billboards in city (except on-premises advertising) held void as denial of due process. The regulation ex-cluding all such advertising in city without adequate standards cannot be sustained. Dissent: aesthetics is valid consideration. Old cases refusing to uphold on this ground do not necessarily apply today.

Preferred Tires, Inc. v. Village of Hemp-stead, 173 Misc. 1017,19 N.Y.2d 374 (1940). Sustained absolute ban on hanging signs. Was not discriminating because it exempted

hotels and theater marquees; not invalid because it applied to existing signs as well. "This court is not restricted to aesthetic reasons in deciding to sustain the validity of the ordinance . . . , but if it was re-stricted, it would not hesitate to sustain the legislation upon that ground alone."

Mallary, Inc. v. New Rochelle, 184 Misc. 66, 53 N.Y.S.2d 643 (1944), affirmed 295 N.Y. 712, 65 N.E.2d 425 (1946). Regula-tion prohibiting right angle signs, exempting hotels, theatres and public buildings held to be a valid classification and was not a denial of equal protection of the law.

Ruth v. Incorporated Village of Colonie, 198 Misc. 608, 99 N.Y.S.2d 471 (1950). Or-dinance prohibiting erection of billboards invalid as not within authority of Trustees of Village under Village Law to "regulate and control erection, construction and use in, upon and near streets and other public places of billboard and other advertising media."

NORTH CAROLINA

General Statutes of North Carolina

Any person who places in any manner any business or commercial advertisement on or to any stone, tree, fence, stump, pole, automobile, building or other object, which is the property of another, without first ob-taining the written consent of such owner, or to such object within the limits of a pub-lic highway, shall be guilty of a misde-meanor. (§ 14-145)

Prohibits any cross-arm post for adver-tising purposes on or near any highway which contains the words "Stop!" "Look!" "Listen!" or such other words as to imitate a railroad signal or notice. Q 14-386)

It shall be unlawful to erect or set up any sign or billboard containing any advertise-ment of alcoholic beverages. (18-53)

Requires anyone engaged in the business of outdoor advertising to obtain a license from the Commissioner of Revenue. It is unlawful for anyone to place any advertis-ing matter within the limits of the right-of-way of public highways of the State without permission of the State Highway Commis-sion. No advertising shall be erected in the highway right-of-way so as to obstruct the

APPENDIX B

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vision or otherwise to increase the hazards and all signs upon the highway shall be placed in a manner to be approved by the Highway Commission. Violation of any provision of the statute is a misdemeanor. Exempted from the provisions of the statute are signs upon property advertising the business conducted thereon; notices erected by public authority or required by law; and signs containing 60 square feet or less bear-ing an announcement of any city or town advertising itself. No tax shall be levied under this section against any person, firm or corporation erecting, painting, posting or otherwise displaying signs or panels adver-tising his or its own business containing 12 sq. ft. or less of advertising surface if such signs are not displayed in more than five counties. Q 105-86)

The State Highway Commission is au-thorized to make rules, regulations and ordi-nances for the placing or erection of sign-boards and other similar obstructions that may, in the opinion of the Commission, con-tribute to the hazard upon any of the high-ways or in any way interfere with the same. Q 136-18(j))

Prohibits the erection or maintenance upon any highway or within 100 ft. of the right-of-way any signs which imitate or resemble any official traffic control device or marker. (§§ 136-32, 136-32.1)

The location of fuel and other service fa-cilities may be indicated to the users of con-trolled access facilities by appropriate signs, the size, style and specifications of which shall be determined by the Highway Com-mission. (§ 136-89.56)

It shall be unlawful for anyone to con-struct or maintain outside the limits of any city or town any billboard larger than six square feet at or nearer than 200 feet to the point where any walk or drive from any school, church, or public institution located along any highway enters such highway ex-cept under certain specific conditions. Q 136-102)

Judicial Decisions

State v. Whitlock, 149 N.C. 542, 63 S.E. 123 (1908). City billboard ordinance con-taining set back requirement (of 2 feet more

than height) held invalid. Such regulation must be reasonable and not prompted solely by aesthetic considerations.

State v. Staples. 157 N.C. 637, 73 S.E. 112 (1911). Municipal regulation requiring minimum distance of 24 inches from ground sustained as a reasonable regulation.

NORTH DAKOTA

North Dakota Revised Code, 1943

Prohibits anyone from placing or main-taining any advertising sign or other ob-struction upon, over, or adjacent to any highway between any approach sign and the grade crossing which it marks or any signs upon, over or adjacent to any public high-way which resemble official signs provided for by law. (§ 24-0912)

Prohibits placing of any sign, billboard or advertisement within the limits of a public highway or in any manner placing any ad-vertisemeit on or to any stone, tree, fence, stump, pole or other object within the limits of a public highway, or placing any signOr billboard upon private property within 1000 feet of any highway grade crossing in such place or manner as to obstruct or interfere with a free and clear view of such crossing from any highway or railroad intersecting thereat. Any advertisement in or upon a public highway or private property which, in the judgment of the commissioner, may be deemed to be a hazard to traffic, or in the future may tend to create a hazard to traffic, may be taken down, removed or de-stroyed by direction or authority of the de-partment in the case of the State highway system, by the board of county commis-sioners in the case of the county road sys-tem, and by the board of township super-visors in the case of township roads. Q 24-0112)

Prohibits anyone from erecting or main-taining any sign which imitates or resembles an official control device or marker. Q 39-1304)

OHIO

Baldwin's Ohio Revised Code

No individual, firm or corporation shall place or maintain any post, sign, or ob-

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struction within the bounds of any road or highway on the State highway system with-out first obtaining the consent and approval of the director of highways. Q 5515.03)

Defines "advertising device" and "inter-state system." (§ 5515.21)

No advertising device shall be erected or maintained within 660 feet of each edge of the right-of-way of the national system of intertate and defense highways located outside of municipal corporations except as follows:

(A) Advertising devices which are to be erected or maintained on property for the l)u1 Pose of setting forth or indicating:

The name and address of the owner, lessee, or occupant of such property;

Information required by law to be posted or displayed thereon;

The name of the business or profession conducted on such property, or which identify the goods or services produced or sold on such property.

(B) Advertising devices indicating the sale or leasing of the property upon which they are placed.

(C) Directional or other official signs and signals erected or maintained by the State or other public agency having jurisdiction. Q§ 5515.22, 5515.221)

Any advertising device erected or main-tained in violation of § 5515.22 or § 5515.221 is hereby declared to be a public nuisance and shall be abated and ordered removed by the court of common pleas of the county in which such advertising device is located upon complaint of the director of highways after a 30 day notice to the owner of the land upon which the device is located. Q 5515.23)

Advertising devices existing on the effec-tive date of § 5515.24 which violate § 5515.22 or 5515.221 are hereby declared to be nonconforming uses and shall be dis-continued and removed by the owners of the lands on which they are located within one year from the time such devices become nonconforming uses. The Director of High-

ways shall give notice to all owners of land containing such nonconforming uses stating the date by which such devices must be re-moved. If such devices are not removed within 30 days, they shall be abated and ordered removed by the court of common pleas upon a finding that a violation exists. Q 5515.24)

The director of highways may enter into agreements with the Secretary of Commerce of the United States as provided by section 122, of Public Law 85-381, the "Federal-Aid Highway Act of 1958." Any expendi-tures of money by the director in connec-tion with agreements authorized by this section shall be payable from any funds available to the director. (§ 5531.05)

All advertising or other signs and posters except authorized signs at the crossings of highways and railroads erected, displayed or maintained on, along, or near any public highway, and in such a location as to ob-struct, at curves or intersecting roads, the view of drivers using such highway, are obstructions which shall not be erected without first obtaining the approval of the board of county commissioners in case of highways other than those on the State highway system. (§ 5547.04)

No one shall erect, display, or maintain any advertising or other sign on, along, or near any public highway, in any county of Ohio, which resembles the highway cross-ing signs which steam and interurban rail-roads have erected in compliance with the laws at the crossing of public roads and railroads. Q 5589.32)

Judicial Decisions

T'illage of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). Prohibitions of billboards in cer-tain districts of a city was part of the zon-ing ordinance sustained by the Supreme Court.

Criterion Service, Inc. v. City of East Cleveland, (Ohio App. 1949) 88 N.E.2d 300, appeal dismissed, 152 Ohio St. 416, 89 N.E.2d 475 (1949). City zoning ordi-nance prohibiting advertising signs and bill-boards in retail stores, districts, except for

APPENDIX B

79

accessory uses, held constitutional as ap-plied to outdoor advertising business.

Ellis v. Ohio Turnpike Commission, 162 Ohio St. 86, 120 N.E.2d 719 (1954). Ohio Turnpike Commission lacked sufficient stat-utory authority to condemn the right to re-strict the erection of billboards.

General Outdoor Advertising v. Village of Evendale, 50 Ohio 354, 124 N.E.2d 189 (1954). Zoning ordinance provision pro-hibiting erection of billboards in commercial zone was consistent with principles upon which establishment of such zone was based and was valid, but provision prohibiting erection of billboards in industrial zones was inconsistent and invalid.

Advertising Corp. v. Linzell, 168 Ohio St. 259 (1958). Where rights of someone other than the owner to use real estate for adver-tising purposes have been provided for in a contract with such owner but such contrac-tual rights do not represent an estate or in-terest in the real estate, the mere subsequent appropriation of that real estate by or the grant thereof to the state and the assertion by the state of its ownership rights in that real estate so as to prevent the exercise of such contractual rights do not constitute a taking by the state of such contractual rights.

OKLAHOMA

Oklahoma Statutes, 1951

No person shall place, maintain, or dis-play upon or in view of any highway any sign which purports to be or is an imitation of, or resembles an official traffic control device or railroad sign or signal, or which attemptsto direct the movement of traffic or which hides from view or interferes with the effectiveness of any such control or sign. Such prohibited

'signs are declared to

be public nuisances and may be removed without notice. (tit. 47, § 125.9)

The Commission is authorized to pre-scribe uniform marking and guide boards on the State highways; provided, that noth-ing in this Act shall be construed to au-thorize the removal, or prevent the main-tenance of, marking signs, guide boards, and danger or warning signals, whether carrying advertising matter or not, erected and main-

tamed under the terms of any contract heretofore made with, or permit heretofore granted by, the Commission. (tit. 69, § 53)

It shall be unlawful for any person to construct, maintain or operate any sign, or any other thing or structure on any right-of-way of, or upon any street occupied by, a designated State or Federal highway, and the constructing or maintaining of any such thing or structure on any such highway shall constitute a public nuisance which may be summarily abated. (tit. 69, § 157.1)

OREGON

Oregon Revised Statutes

The Legislative Assembly hereby finds and declares that in order to provide for the safe and efficient use, and the orderly ap-pearance, of the public highways, it is neces-sary and is in the public interest to regulate the erection and maintenance of advertising structures and signs within view of the pub-lic highways. Q 377.110)

Defines advertising sign, advertising structure, highway and throughway. (§ 377. 120 ( 1) , (2) , (6) , (8)

No advertising sign or advertising struc-ture except as provided by ORS 377.140 shall be placed, erected or maintained upon property within view of any highway or throughway: (1) without the written con-sent of the owner of the property upon which the sign or structure is located; (2) in violation of the provisions of ORS 483. 138; (3) in such manner as to prevent the driver of a vehicle upon the highway or throughway from obtaining a reasonably clear view of approaching vehicles for a dis-tance of 500 feet along the highway or throughway, or after the driver is at any point within 300 feet of the intersection, for a distance of 300 feet in both directions along any intersecting highway, through-way or railway; (4) unless such sign or structure is so constructed as to be able to withstand a wind pressure of at least 20 pounds per square foot of exposed surface, and is at all times maintained in a neat, clean and attractive condition; (5) which bears or contains statements, words or pic-tures of an obscene, indecent or immoral

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OUTDOOR ADVERTISING

character, or such as will offend public morals or decency; (6) upon rocks or trees; and (7) within one-half mile, upon the same side of the highway or throughway, of any other advertising sign or advertising struc-ture which advertises the goods, products, facilities, services or business of the same commercial enterprise. (§ 377.130)

(1) The provisions of ORS 377.110 to 377.280 shall not apply to any advertising sign or advertising structure placed: (a) within the limits of an incorporated city;

by any federal, state, county or city au-thority to convey information, warnings, distances or directions to persons upon the highway or throughway; (c) by proper au-thority giving a notice required by law or a court; (d) at a location not visible from any highway or throughway. (2) The pro-visions of ORS 377.150, 377.160 and 377.180 to 377.240 shall not apply to any advertis-ing sign or advertising structure erected or maintained: (a) within 300 feet of any business, when such sign or structure ad-vertises only the name of the business, or the products, facilitie, goods or services thereof; (b) upon farm property by the owner or lessee when the sign or structure advertises only the products of the farm;

which advertise for sale or rent the real property upon which the sign or structure is erected, or warn of hazards or dangers upon such property, or warn against hunt-ing, fishing or trespassing upon such prop-erty; (d) by any public utility or transpor-tation company for the purpose of notices necessary for the information, safety or direction of the public; (e) which bear only the name and address of the owner or occu-pant of the property. (3) The provisions of ORS 377.150 and 377.160 shall not apply to any advertising sign or structure advertis-ing exclusively a roadside service located upon or within five miles of the highway or throughway upon which the sign or struc-ture is located, if: (a) the sign or structure has an advertising area less than 250 square feet; (b) the sign or structure is located not more than two miles from either the road-side service which it advertises or an access road or connecting road leading to such roadside service; and (c) there are not more than two such signs or structures in each

direction from the roadside service on each highway or throughway upon which, or within five miles of which, the roadside service is located. (§ 377.140)

Except as provided by ORS 377.140 or 377.170 no advertising sign or structure shall be placed upon property within view of any highway: (1) within 300 feet of any other advertising sign on the same side of the highway, if the total combined advertising area of both such signs is 130 square feet or less; or (2) within 500 feet of any other advertising sign on the same side of the highway, if the total combined area of both such signs exceeds 130 square feet. (§ 377. 150)

Except as provided by ORS 377.140 or 377.170 no advertising signs shall be placed upon property within view of any through-way within 1,000 feet of any other adver-tising sign upon the same side of the throughway and no sign exceeding a total length of 60 feet shall be placed upon prop-erty within view of any throughway. (§ 377.160(1),(2))

(1) The distances set forth in the spac-ing limitations contained in ORS 377.150 and 377.160 shall be measured lineally along the highway or throughway; and, for the purpose of applying such spacing limita-tions, two advertising signs or advertising structures which are immediately adjacent to each other on the same side of the high-way or throughway shall be considered as one sign or structure. (2) In determining the area or length of an advertising sign or structure for the purposes of ORS 377.150 and 377.160, two advertising signs or struc-tures which are immediately adj acent to each other on the same side of the highway or throughway shall be considered and measured as a single sign or structure. (3) In determining the proper spacing under ORS 377.150 and 377.160, between an ad-vertising sign or structure and a group or series of advertising signs as described in subsection (1) of ORS 377.120, the distance shall be measured from the nearest sign in the group or series; and, in determining areas under ORS 377.150 and 377.160, the total combined area of all the signs in the group or series shall be considered the area of a single sign or structure. (4) Advertis-

APPENDIX B

81

ing signs or structures listed in ORS 377.140 shall not affect or control the spacing limi-tations applicable to other signs or struc-tures under the provisions of ORS 377.150 and 377.160 and shall not be considered in determining the required spacing. (§ 377. 170)

Requires anyone engaged in the business of outdoor advertising outside the corporate limits of any city to obtain a license from the Commissioner of the Bureau of Labor. Q 377.180(1))

Requires permits for advertising signs or structui'es except those described in ORS 377.240 and otherwise provided by ORS 377.140. Q 377.200)

Any advertising sign or structure not covered by a current permit or which is owned, operated, leased or maintained by a person engaged in the business of outdoor advertising without a license, is declared to be a public and private nuisance and may be removed forthwith by the Commissioner. If any sign or structure bears the name and address of the owner, the owner must be given written notice to remove the structure or sign within 30 days after which the Com-missioner may remove same as aforesaid. (§ 377.240)

The Commissioner of the Bureau of La-bor may make, amend, repeal and promul-gate rules and regulations for the purposes of carrying out the l)rovisions of ORS 377. 110 to 377.280. (§ 377.260)

No one shall place except as l)rOvidecl in ORS 377.360 any advertisement, etc., many manner on any building, fence, gate, bridge, tree, rock, board, structure or anything whatever within the limits of any public highway, or on the property of another within view of the public highway without such owner's written consent except within the limits of any city, town or village through which the public highway runs. Q 377.340)

Any person may lawfully remove or destroy any advertisement, bill, notice, sign, picture, card or poster l)laced in violation of ORS 377.340. (§ 377.350)

ORS 377.340, 377.350 and subsection 3 of ORS 337.990 do not prevent the posting or maintaining of any notice required by law to be posted, or the placing or maintaining

of signs giving information about scenic, historical, resort or recreational areas, or community or civic enterprises of a non-commercial nature, or the proximity of tourist facilities, directions or distances for the information of the traveling public, when such signs are approved by the State Highway Commission or the county court or board of county commissioners. (§ 377. 360)

(3) Violation of any provision of ORS 377.340 to 377.360 is punishable upon con-viction, by a fine not less than $5 nor more than $50. (4) Any person convi.cted of violating any provision of ORS 377.110 to 377.280 shall be punished by a fine not more than $50. (§ 377.990)

No one shall place upon or in view of any street or highway, any unofficial sign which imitates or resembles an official traffic sign or signal or which bears the words, "Stop," "Go Slow," "Caution," "Danger," "Warning," or similar words or which attempts to direct the movement of traffic, or which hides from view or inter-feres with the effectiveness of any official sign or signal. Every prohibited sign, sig-nal or device is hereby declared to be a public nuisance, and the authority having jurisdiction over the highway may remove it, or cause it to be removed, without notice. (483.138 (1),(4))

PENNSYLVANIA

Purdon's Pennsylvania Statutes Annotated

Whoever shall place in any manner any advertisement, bill, notice, etc., on any building, fence, bridge, gate, outbuilding or other object, upon the grounds of any chari-table, educational or penal institution of the State or on any property belonging to the State or on property of another, whether within or without the limits of a highway without first obtaining the written consent of the owner or tenant of such property, is guilty of a misdemeanor and upon convic-tion shall be fined not in excess of $100 or imprisoned not in excess of three months, or both. (tit. 18, § 4931)

No roadside rests shall be constructed (adjacent to State Highway routes) unless

82

OUTDOOR ADVERTISING

surrounded on all sides, except that side which fronts on a State highway, by at least 1200 feet of Federal or State-owned lands in which no commercial signs or other advertising media are situated, or author-ized, or on privately owned lands where the owners have irrevocably agreed in writing with the Commonwealth that no such signs will be permitted within 1200 feet thereof or by an area of at least 1200 feet which is zoned to prohibit the erection of such signs. (tit. 36, § 478.8)

The Turnpike Commission is authorized to contract with any person, partnership, association, or corporation, desiring the use of any part of the turnpike, including the right-of-way adjoining the paved portion, for placing thereon, among other things, gas stations, garages, stores, hotels, restaurants, and advertising signs or for any other pur-pose and to fix the terms, conditions, rents and rates of charges for such use. (tit. 36, § 652(1) (Turnpikes); tit. 36, § 652.15 (Pennsylvania Turnpike Philadelphia Loop Extension); tit. 36, § 653 n (Pennsylvania Turnpike Philadelphia Extension); tit. 36, § 658.15 (Pennsylvania Turnpike Delaware River Extension) ; tit. 36, § 660.15 (Penn-sylvania Turnpike Northeastern Exten-sion); tit. 36, § 666.15 (Pennsylvania Turn-pike Keystone Shortway Act) ; tit. 36, § 667.15 (Pennsylvania Turnpike Gettys-burg Extension) ; tit. 36, § 668.15 (Pennsyl-vania Turnpike Northwestern Extension); tit. 36, § 669.15 (Pennsylvania Turnpike Southwestern Extension))

No advertisements of any sort shall be permitted to be erected along the Pocono Memorial Parkway or within 500 feet thereof under any circumstances, and no notices, signals or directions, other than those erected by the Department of High-ways. (tit. 36, § 655.2)

The Pennsylvania Parkway Commission is authorized to contract with any person, partnership, association or corporation de-siring the use of any part thereof, including the right-of-way adjoining the paved por-tion for placing thereon, among other things, gas stations, garages, stores, hotels, restau-rants and advertising signs, and to fix the terms, conditions, rents or charges for such use. (tit. 36, § 655.13(b))

it is unlawful to place any sign, banner, or advertising matter of any kind on or across any State Highway or on or across any structure within the legal limits of any State Highway without obtaining the con-sent of the Department of Highways. Any person violating the provisions of this sec-tion shall, upon conviction, be fined not less than $4 nor more than $20. Any such illegal sign is declared a public nuisance and may be abated by the Department without no-tice. (tit. 36, § 670-425)

The Secretary of Highways, with the ap-proval of the Governor, or local authorities in connection with the designation or con-struction of a limited access highway may lay out or construct local service highways. Such local service highways shall be so lo-cated as to permit the establishment by private owners or their lessees of adequate fuel and other service facilities for the users of limited access highways. The location of such facilities may be indicated to the users of the limited access highways by ap-propriate signs, the size and location of which shall be determined by the authori-ties having jurisdiction. No commercial enterprise or activity shall be located or authorized by the State or any political sub-division within or on any public property which is part of the right-of-way of any limited access highway. (tit. 36, § 2391.3)

It shall be unlawful to place any sign, banner, or advertising matter of any kind on or across any public road or highway or on or across any structure within the legal limits of any public road or highway with-out the written consent of authorities re-sponsible for such road or highway. Any such illegal sign is a public nuisance. (tit. 36, §§ 2564, 2565)

The State Highway Department, the Public Service Commission, and any county, city, borough, incorporated town, or town-ship, may acquire, by purchase or eminent domain, a free and unobstructed view down and across such lands located at or near the intersection of any two highways, or a highway and a railroad or railway, or at any curve in any highway, as may be neces-sary to assure a free and unobstructed view in all directions at such crossings, and to so prevent the use of such lands for any pur-

APPENDIX B 83

pose or in any manner which may interfere with or obstruct the vision of any person or persons traveling upon any such highway. (tit. 36, § 2591)

No unauthorized person shall erect or maintain, upon or along any highway, any warning or direction, sign, marker, or traffic signal, in imitation of, or similar to, any official sign, marker, or traffic signal. Every unauthorized sign is declared a public nui-sance. Any person violating any provision of this section shall, upon conviction, be fined $25. (tit. 75, § 683)

Judicial Decisions

Appeal of Liçjçjett et al., 291 Pa. 109, 139 Atl. 619 (1927). City zoning ordinance up-held billboard size limitation. Court recog-nized the principle which forbids zoning legislation that rests entirely upon esthetic considerations but also recognized that the incidental consideration of a question of esthetics will not invalidate the exercise of the police power when the particular regula-tion is founded on other substantial grounds.

Commonwealth v. Trimmer, 53 Dauphin Co. Rep. 91 (1942). City ordinance declar-ing the placing or maihtaining of certain signs within the lines of a certain portion of a street to be a nuisance upheld as a proper exercise of police power. The court said that the law has now developed to the point where aesthetic considerations alone may justify the exercise of police power.

RHODE ISLAND

General Laws of Rhode Island, 1956

Defines outdoor advertising to be such advertising displayed so as to attract the attention of persons on any public highway, or while in the vehicle of a common carrier, or in any station of such carrier, or while in any public building, public park, public grounds, or other public places, whether by means of printing, writing, picture, or a combination thereof, and whatever may be the means of display, except that it shall not include advertising located upon private property and relating exclusively to the business conducted on such property or the sale or rental thereof, or advertising in or

upon the cars and stations of any common carrier. Q 5-18-1)

The city council and town council of every city and town shall have power by ordinance to regulate outdoor advertising in such city or town, as to the place where such advertising may be permitted, the size, kind of structures upon which it may be placed, and the subject matter that may ap-pear thereon; provided such regulations shall be reasonable in their requirements. (§ 5-18-2)

Any such ordinance may provide that no such outdoor advertising shall be main-tained or displayed unless such outdoor ad-vertising, in respect to all matters specified in § 5-18-2i shall be first approved, by a city or town officer designated in such or-dinance, as being in conformity with such regulations; provided that whenever such officer shall refuse approval, application may be made to the city or town council for its approval; and if approved by the city or town council, no approval by the city or town officer is required before main-taining or displaying the sign. (§ 5-18-3)

Any person who shall violate any such regulation or maintain any outdoor adver-tising without prior approval where ap-proval is required, shall be fined not exceed-ing ten dollars for every day of such viola-tion. (§ 5-18-4)

A person who places in any manner any commercial or business advertisement to any stone, tree, fence, stump, pole, building or other object, which is the property of another, without first obtaining written con-sent of the owner or which is within the limits of a public highway, without first obtaining consent of the chief of police of the city or town in which said highway is located is punishable by fine or imprison-ment, or both. Any advertisement in viola-tion of this provision in or upon a public highway may be taken down, removed or destroyed by anyone. (§ 11-22-2)

No one shall erect or maintain any bill-board along the line of any public highway or street within 300 feet of any place where a railroad crosses a public highway or street at grade, nor within 50 feet of the intersec-tion of any public highway or street except


when placed upon the top of any building not less than ten feet in height. (§ 11-22-3)

SouTH CAROLINA

Code of Laws of South Carolina, 1952

Prohibits any person from advertising any alcoholic liquors by means of bill-boards along public highways and streets. (§ 4-103)

Prohibits any person from using for ad-vertising purposes the kind of cross usually used as a crossing sign by steam and elec-tric railroads. (§ 58-740)

SOUTH DAKOTA

South Dakota Code of 1939

It shall be illegal to erect or display any sign endangering the public, or other guide or warning signs upon the Trunk Highway System except in case of emergency or when approved by the Commission. Q 28.0901)

It is unlawful for any person to place along the streets or highways adjoining or within 300 feet of any cemetery, any bill-board without first obtaining the written consent of the proper officers of the city, town or township and the proper authorities having charge of such cemetery. Q 28.0905)

It is unlawful for any person to place any advertising sign on any public highway and except within municipalities it is unlawful to place any sign or obstruction to vision, along or adjacent to any of the public high-ways where such sign constitutes a hazard to highway traffic at any main crossing or intersection, horizontal or vertical curve or railroad crossing, as deemed hazardous by the authority in charge of the maintenance of such highways. (§ 28 .0906)

Prohibits any person from placing or maintaining any advertising sign, of which more than 20 percent of the surface shall be displayed in red, along the public high-way outside the limits of a municipality. (§ 28.0907)

TENNESSEE

Tennessee Code Annotated

Prohibits any person from placing on any public highway or street, or on private prop-

erty, within one-fourth mile of any public road or street, any advertising sign similar to or resembling a standard railroad cross-ing sign. Violation of these provisions is a misdemeanor. Q 39-3608)

No person outside the State department of highways and public works shall erect a sign of any character upon the right-of-way of any street, road or highway out side of incorporated municipalities, designated by the State department of highways and public works as a main traveled road and included in the general highway plan of the State. (§ 54-538)

(a) No person shall place a sign of any kind which purports to be or is an imitation of or resembles an official traffic control de-vice or railroad sign or signal, or which at-tempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any traffic control device or any railroad sign or signal. (d) Every such prohibited sign is declared a public nui-sance. (59-813)

It is unlawful for anyone to place in any manner any sign to any stone, tree, fence, stump, pole, building or other object out-side the limits of incorporated villages, towns and cities and upon the property of another without first obtaining the written consent of the owner of the property pro-vided that this does not apply to the follow-ing advertising signs: (a) signs which ad-vertise the sale or lease of property upon which the sign is located; (b) legal adver-tisements required by Federal or State law;

signs which display the name and nature of the business conducted on the premises;

signs which advertise articles produced, manufactured or for sale or for service to be had on the premises where such sign is located; (e) signs maintained by Federal, State or local governments. (§ 62-1101)

Prohibits anyone from placing in any manner any advertising sign within or ex-tending over the limits of the right-of-way of public highways outside the corporate limits of villages, towns and cities. (§ 62-1105)

Prohibits anyone from placing at or near any main crossing or intersection of the public highways, or any railroad crossing,

APPENDIX B

85

or sharp curve outside the corporate limits of villages, towns and cities, any outdoor advertising sign in such manner as to inter-fere with the free and unobstructed view of traffic on public highways. (§ 62-1106)

Prohibits placing or affixing in any man-ner a sign on top of, against, on the same post, on the frame or structure of any other sign. (§ 62-1107)

Requires a tax of all persons posting bills or other printed matter for hire and of all persons owning, renting, or operating painted billboards or advertising signs. (67-4203, Item 3 (f),(g))

TEXAS

Vernon's Texas Statutes, Penal Code

Prohibits all outdoor advertising of al-coholic beverages except as permitted under the provisions of this Article. (Art. 667-24a(2))

Prohibits unauthorized persons from plac-ing upon any State highway any warning or direction sign, marker, signal or light. (Art. 827a-13)

UTAH

Utah Code Annotated, 1953

It shall be unlawful for any person to place any form of advertising upon any part of the public domain, or along any pub-lic highway within 300 feet of such highway except within the corporate limits of a city or town, and except upon land in private ownership adjacent to such highway with-out first receiving a permit from the proper authority. Any violation of this section is a misdemeanor. Q 27-1-25)

Sign posts may be set in the tree space, but no signboard shall be permitted to ex-tend across any sidewalk at a less height than 12 feet above the level thereof, or across any portion of the roadway at a less height than 20 feet above the level thereof. (§ 27-3-4)

Prohibits the advertising of alcoholic beverages by anyone on signboards, bill-boards or other display signs. (§ 32-7-27)

It is a misdemeanor for anyone to dis-play on any billboard, etc., any advertise-

ment of cigarettes, cigarette papers, cigars, chewing tobacco or smoking tobacco, except that a dealer of these products may have a sign on the front of his place of business that he is a dealer in such articles. Q 76-11-1)

Every person who wilfully or maliciously commits trespass by putting up in any man-ner upon any property belonging to the State, or any city, town or county or dedi-cated to the public, or upon any property of any person without license from the owner, any advertisement of, or any name for, any commodity, whether for sale or otherwise, is guilty of a misdemeanor. Q 76-60-2(6))

VERMONT

Vermont Statutes, Revision of 1947

Defines display. ( 7676) No one shall engage in the business of

outdoor advertising without securing from the Secretary of State a license to engage in such business. (§ 7678)

Anyone licensed under the provisions of § 7678 shall not erect or maintain an out-door advertising display without obtaining a permit from the Secretary of State. (§ 7679)

Anyone, not engaged in the business of outdoor advertising, shall not maintain any outdoor advertising structure, other than upon property within 500 feet of the build-ing or structure where the goods advertised are manufactured or offered for sale, or where the business advertised is carried on without first obtaining a permit from the Secretary of State. Any sign for which a permit is not required shall not be less than 10 feet from the nearer edge of the traveled part of the highway outside a city or incorporated village except on a building or structure where the goods advertised are manufactured or offered for sale or where the business advertised is carried on. (§ 7681)

No sign or advertisement shall be erected which shall contain more than 600 square feet, nor any advertisement consisting of a row of signs to be read or seen in series. This shall not be construed to affect strip

86

OUTDOOR ADVERTISING

signs advertising seasonable articles sold at roadside stands or tourist homes. Q 7684)

The following signs are exempted from the requirements of Chapter 331 (Outdoor Advertising) except as provided in § 7692: (I) an advertising sign from a municipality, owned by it, advertising its industries or attractions; (II) signs and other devices on or in the rolling stock, station, subways or structures of or used by common carriers; (III) signs erected by municipal or state officials; (IV) signs identifying stops or fare zone limits of common carriers not more than 260 square inches in area; (V) a sign erected by a landowner owning the land in fee simple, advertising the business of the owner of the land, provided, however, that the business shall be located on the land of such owner on which it is advertised. (§ 7687)

Advertisements and signs shall not be displayed within 300 feet of any public park, playground, or cemetery, or located within 300 feet from a highway intersec-tion or highway-railroad intersection out-side of a city or incorporated village or the business part of a town, the distance to be measured from the center of the used part of the highway and the center of the rail-road right-of-way. Signs of 300 square feet or over shall be at least 300 feet from the center of the traveled part of the highway and signs under 300 square feet other than those to be erected for only one month shall be located as many linear feet from the center of the traveled part of the highway as there are square feet in the face of the sign but no sign shall be located nearer the center of the traveled part of the highway than 35 feet. Exempted from these provi-sions are signs or advertisements located inside a city or an incorporated village, or upon the walls of a building in which the goods advertised are offered for sale or the business advertised is conducted, or to signs erected by the State or town which solely indicate highway directions, traffic regula-tions and dangerous places, or signs located within a thickly settled or business part of town and within 300 feet of the center of the main entrance of a house or place of busi-ness. Q§ 7689, 7690)

The Secretary of State may order the re-

moval or change in location of an adver-tisement or sign when in his opinion such advertisement or sign obstructs a clear view along a highway, or is within the legal limits of a highway, or is displayed contrary to the provisions of law. (§ 7692)

If anyone in control of or owning an ad-vertisement or sign which has been ordered removed or changed in its location, as pro-vided in the preceding section, does not remove such advertisement within ten days after such order of removal or change has been sent to such person by the Secretary, the Secretary may cause such advertisement or sign to be removed by the State Highway Department. (§ 7693)

With the consent of the trustees of an in-corporated village or the selectman of a town, the Secretary of State may permit the erection of advertising signs which are de-signed to benefit local residents or indus-tries, within the limits of highways, but not in any location where such signs will ob-struct the view along a highway. (§ 7695)

A person who erects, maintains, displays or allows to remain in view an advertise-ment, sign, billboard or any structure de-signed for the display of advertising matter contrary to the provisions pertaining to ad-vertising shall be fined not more than $100.00, or imprisoned not more than 30 days, or both. (§ 7697)

A person who paints or posts a sign, ad-vertisement or notice on a telegraph, tele-phone or electric light pole shall be fined $5.00 for each offense. (§ 8395)

A person who advertises his wares or oc-cupations, by painting or posting notices of the same on fences or other private prop-erty, or on rocks or other natural objects, without leave of the owner, shall be fined $10.00. (§ 8398)

A bill, poster, notice or advertisement of intoxicating liquors, cigarettes, cigars or tobacco shall not be posted or displayed on a fence, building, structure or other object within 200 feet of a church, chapel or school building, except by the written permission of a town or city council. This section shall not be construed to apply to a building in which the business of selling such articles is legally conducted. (§ 8512)

APPENDIX B

87

The Secretary of State is authorized to appoint an administrative assistant and billboard clerk of outdoor advertising and such assistants as may be necessary and to prescribe the duties of such personnel. (Sec. 1, Public Acts 1957, No. 170) § 1.—It is hereby declared to be the policy of the State of Vermont and in the public interest to preserve scenic beauty adjacent to and safeguard public travel upon the In-terstate System of highways or any other public highway which has been established as a limited access facility. § 2.—Advertis-ing signs and displays shall not be erected or maintained within a distance of 750 feet from right-of-way of the Interstate System or of any other public highway established as a limited access facility. § 3.—The fol-lowing signs are exempted: (a) directional or other official signs or notices required or authorized by law; (b) signs located inside a city, incorporated village or thickly settled or business part of town; (c) signs upon or attached to a building in which the goods advertised are offered for sale or the busi-ness advertised is conducted; (d) signs of a landowner advertising farm names, the sale or lease of the property upon which the signs are located, or the sale of livestock, commodities or products produced or raised thereon; (e) signs not visible from any traveled portion of the Interstate System or other public highway established as a limited access facility. § 4—The Secretary of State may order the removal or change in location of an advertising sign erected or maintained contrary to the provisions of this act. § 5.—If a person who has been ordered to remove or change the location of his sign fails to do so within ten days after notice has been given, the Secretary of State may cause such sign to be removed. § 6.—Any one who erects or maintains an adver-tising sign or display contrary to the provi-sions of this act shall be fined not more than $100.00, or imprisoned not more than 30 days, or both. (Public Act, 1957, No. 275)

Judicial Decision

Kelbro v. M'yrick, 113 Vt. 64, 30 A.2d 527 (1943). Upheld State statute regulating the distance that billboards could be placed

from highway intersections. The right of view of the owner or occupant of the abut-ting property is limited to such right as is appurtenant to that property and includes the right to display only goods or advertis-ing matter pertaining to business conducted thereon. His appurtenant easement does not include the right to display advertising mat-ter foreign to a business conducted on the property, and he could not convey to this plaintiff a right that he did not himself possess. The essence of the right claimed by the outdoor advertiser is to use the public highway to display advertising matter.

VIRGINIA

Code of Virginia, 1950

The State landscape planning engineer, under the direction of the State Highway Comwissioner, shall study the preservation of the natural beauty of the State High-ways and devise methods by which the rights-of-way of the highways may be beautified and improved. Q 33-8)

Defines advertisement and advertising structure. Q 33-298)

The territory under the jurisdiction of the Commissioner for the purposes of Ar-ticle I, Chapter 7 (Outdoor Advertising in Sight of Public Highways) shall include all of the State, exclusive of that portion thereof which lies within the corporate limits of municipalities. (§ 33-300)

The following advertisements, among others, are permitted if attached to real property or advertising structures except those enumerated in subsections (2), (3), (5), (6), (7), and (8) of § 33-317 and in § 33-321: (1) advertisements attached to a place of business or residence, and not to exceed 10 advertising structures with com-bined total area, exclusive of the area oc-cupied by the name of the business, owner or lessee, of advertisements and advertising structures not to exceed 500 square feet, erected or maintained by the owner or lessee within 250 feet of such place of business or residence and relating solely to merchan-dise, services or entertainment sold, pro-duced, manufactured or furnished at such place of business or residence; (2) signs

OUTDOOR ADVERTISING

erected or maintained on any farm relating to farm produce, merchandise, services or entertainment sold, produced, manufactured or furnished on such farm; (3) signs adver-tising for sale or rent the real property upon., which the sign is located; (4) official notices posted by or under the direction of any public or court officer; (5) danger or precautionary signs relating to the premises, erected or authorized by the commissioner of State Highways; (7) notices of any railroad, bridges, ferries or other transporta-tion or transmission company necessary for the safety or direction of the public; (9) signs having 16 square feet or less bearing an announcement of any county, town, village or city, or historic place or shrine in the State, advertising itself or local indus-tries, meetings, buildings or attractions; (11) signs having two square feet or less at a junction of two or more State Highway System roads denoting only the distace or direction of a church, residence or place of, business; (12) signs upon property giving the name of the owner, lessee or occupant of the premises; (13) advertising within the corporate limits of cities and towns; (14) historical markers erected by authorized persons; (15) highway markers erected un-der proper authority; and (16) signs upon property warning the public against hunt-ing, fishing or trespassing thereon. Q 33-

Anyone engaging in the business of out-

door advertising must obtain a license from the State Highway Commissioner. Q 33-

No person shall erect or maintain any

advertisement without first obtaining a per-mit from the State Highway Commissioner. Q 33-307)

No advertisement or advertising structure shall be erected, maintained or operated: 1. within 500 feet of the Blue Ridge Park-way, the Colonial National Parkway or the Mount Vernon Boulevard, or any within 500 feet of any public cemetery, public park reservation, public playground, Na-tional forest or State forest, outside the limits of, any municipality; or, 2. which involves motion or rotation of any part of the structure or displays intermittent lights

within 100 feet of the nearest edge of the pavement or highway; or 3. which uses words or implies the need for stopping or the existence of danger on any highway, or which is an imitation of official highway signs; or 5. which, within visible distance of any highway, advertises any county, city, town, village, historic place or shrine with-out written consent from the proper au-thority; or 6. which is mobile and attracts passing motorists on any highway by flash-ing lights, loud noises or movable objects; or 7. which involve red, green or amber lights or reflectorized material and resemble traffic control devices and is within visible distance of any highway; or 8. within 15 feet of the nearest edge of the pavement of any highway; or 9. at any public road intersection in such manner as would ob-struct the clear vision in either direction between a point on the center line of the side road 20 feet from the nearest edge of the pavement of the main road and points on the main road 400 feet distant, measured along the nearest edge of the pavement of the main road; or 10. at any grade inter-section of a public road and a railroad in such manner as would obstruct the clear vision in either direction within designated triangular areas; or 11. at or near any curve in a road in such a manner as to obstruct the clear vision of traffic from any one point on such curve to any other point not more than 400 feet apart between each point from the nearest edge of the pave-ment; or 12. within 500 feet of the Inter-state System of highways except: (a) upon a location within one mile of an interchange, the distance to be measured in a straight line from the center line of the intersecting roadway, provided that: (1) the advertise-ment relates to business establishments of-fering essential services to motorists, limited to automotive services, lodging, and food serving establishments located within 10 miles of the interchange at which the sign is posted or the next interchange in either direction on the Interstate System, along which such signs are erected; (2) the ad-vertisement does not exceed 300 square feet in area and conforms to standard designs and colors, as approved by the State High-

APPENDIX B 89

way Department; and (3) the number of signs authorized to be erected by the owner of a business is limited to four for each business established; (b) signs advertising a Virginia scenic or historical place; (c) signs advertising the sale of property by the owner, located on the property to be sold; and (d) signs which have been erected prior to the effective date of these provisions. Any permit granted for the erection of advertis-ing devices within 500 feet of the right-of- way of any highway in the Interstate Sys-tem shall automatically expire June 30, 1960. Q 33-317)

No advertisement shall be pasted or glued on any building, fence, wall, tree, rock or other similar structure unless the same be an advertising structure for which a permit has been issued. Q 33-318)

Any person who in any manner places any advertisement upon or to any rock, stone, tree, fence, stump, pole, etc., or other object lawfully within the limits of any highway shall be guilty of a misdemeanor. Q 33-319)

Any advertisement in violation of § 33-317 or § 33-318 or for which no permit has been obtained where such is required, or whether or not excepted under the provi-sions of § 33-302, is not kept in good gen-eral condition and good repair and is not, after 30 days' written notice put in good repair, is hereby declared to be a public and private nuisance and may be forthwith re-moved. Q 33-321)

Any one violating any provision of Ar-ticle 1, Chapter 7 relating to outdoor ad-vertising shall be guilty of a misdemeanor and upon conviction be fined not less than 10 dollars nor more than 50 dollars. Q 33-323)

It shall be unlawful for any person to erect alongside or in plain view of any pub-lic highway any false or misleading sign purporting to furnish travel information re-lating to place or direction. It shall be unlawful for any .person to erect alongside or in plain view any public highway any sign purporting to furnish travel informa-tion relating to merchandise or services un-less approved by the State Highway Com-mission; provided the provisions of this section as to merchandise and service shall

not: (1) apply to any sign advertising goods, merchandise, property, business serv-ices, entertainment or amusements manu-factured, produced, bought, sold, conducted, furnished or dealt in on the premises; (2) limit the publication of official notices un-der the direction of any public or court officer; (3) limit notice of sale by a trustee under a deed of trust or other similar instru-ment; (4) apply to any property owner, his agent or lessee to maintain any sign of-fering to the public farm products or board or lodging or similar entertainment, or of the sale, rental or lease of the property. Nothing in this section shall limit anyone from erecting signs which advertise natural scenic attractions in the State. Any one who violates any of these provisions shall upon conviction be fined not in excess of ten dollars. Whenever the State Highway Commissioner ascertains that any such sign gives incorrect information he shall notify the owner in writing to remove it forthwith. If not removed within ten days, the com-missioner shall remove and destroy the same. Q§ 33-325, 33-326, 33-327)

No unauthorized person shall place upon any highway any warning or direction sign in imitation of any official sign, marker, signal or light. (§ 46.1-174)

WASHINGTON

Revised Code of Washington

Prohibits signs, signboards, or billboards at or near a county road or railroad and within 500 feet from the point of intersection at grade of the road and railroad and in such a way that it may obstruct the view or distract the attention of a person operating a vehicle or train and approaching the cross-ing. (§ 36.86.100)

Every person who l)laces within any park or parkway or affixes to any object therein contained, without a written license from the State Parks and Recreation Commission any word, character or device designed to advertise any business, profession, etc., shall be gijilty of a misdemeanor. (§ 43.51. 180(6))

Any structure, device or natural or artifi-cial thing existing upon or off the right-of-

90

OUTDOOR ADVERTISING

way of any primary State highway which threatens or endangers such highway or tends to endanger persons traveling thereon or constitutes a hazard is declared a nui-sance. ( 47.32.130(1))

Prohibits signs, signboards, or billboards, except official highway signs and traffic de-vices and railroad warning or operating signs, at or near a grade crossing of a State highway and a railroad or within 500 feet from the point of intersection of such high-way and railroad. (§ 47.32.140)

It shall be unlawful for any person to place any signs, signals, signboards, guide posts, or other traffic devices upon the right-of-way of primary or secondary State high-ways. Any such sign erected constitutes a public nuisance. (47.36.160)

Prohibits upon a private road or upon a State highway the imitation of official traf-fic devices and signs which simulate in shape, color, or design any uniform State standard traffic device. Any such illegal signs constitute a public nuisance. (§ 47.36. 170)

It shall be unlawful to erect or maintain at or near a city street, county road or State highway any structure, sign or device: (1) visible from any such place and simulating any directional, warning or danger sign or light likely to be mistaken for such sign; (2) visible from any such place and dis-playing any lights likely to be mistaken for a warning, danger, directional, or traffic con-trol signal or sign; (3) visible from any such place and displaying any lights tending to blind persons operating vehicles upon the highway, city street or county road; (4) visible from any such place and flooding or directed across the roadway of the highway with a directed beam or diffused light. Any structure or device maintained contrary to these provisions is a public nuisance. If after notice the owner fails to remove such illegal sign, he is guilty of a misdemeanor. (§ 47.36.180)

WEST VIRGINIA

West Virginia Code of 1955

Obstructions shall include fences, build-ings or other obstructions within the bounds of a public road; or any other thing which

will prevent the easy, safe and convenient use of such public road for public travel. Such obstructions shall be considered within the bounds of any State or county-district road whenever any part thereof shall oc-cupy any part of the right-of-way provided by law or acquired for road purposes. Such obstructions so placed and within the limits of such road are hereby declared to be pub-lic nuisances. Q 1651)

No person shall place in any manner any sign, advertisement, etc., other than those placed pursuant to law, on or to any stone, rock, tree, fence, stump, post, pole, build-ing, or other structure, which is in or upon the right-of-way of any public road or high-way, including the road or highway itself. No such sign shall be suspended over the right-of-way of any public road or highway. Any person violating this section shall be guilty of a misdemeanor and upon convic-tion shall be fined not less than 25 dollars or more than 100 dollars. Each such prohibited sign is declared a public nuisance. Upon receiving notice of any violation, the Com-missioner of State Roads shall cause the prohibited sign to be removed within ten days. Q 1707)

Defines advertisement, advertising struc-ture, advertising sign. (§ 1721 (49) )

The territory under the jurisdiction of the State road commissioner for the purposes of Article 22 (Outdoor Advertising) shall in-clude all of the State outside the corporate limits of any city or town. Q 1721 (51) )

No person shall engage in the business of outdoor advertising without first obtaining a license from the Commissioner of State Roads. ( 1721 (52))

No person shall erect or maintain any outdoor advertising structure without first obtaining a permit from the Commissioner of State Roads. Q 1721 (54) (a))

No advertising structure shall be erected or maintained: (a) within 500 feet of any church, school, cemetery, public park, pub-lic reservation, public playground, State or National forest outside the limits of any in-corporated city or town; (b) which involves motion or rotation of any part of the struc-ture; (c) which uses words, or presents or implies the need of stopping or the existence

APPENDIX B

91

of danger, or which is an imitation of official signs; (d) which prevents persons using any U.S. highway, State highway or county road from obtaining an unobstructed view of approaching vehicles, or which are on the inside of any curve on any such highway in such manner as to prevent persons using them from obtaining an unobstructed view of approaching vehicles. (sS 1721 (57))

Any person who, in any manner places any advertisement upon or to any rock, stone, tree, fence, stump, pole, mile-board, mile stone, danger-sign, guide-sign, guide-post, highway sign, historical marker, build-ing or other object lawfully within the limits of any highway, shall be guilty of a misde-meanor. Q 1721 (58))

The following advertising devices are ex-cepted from the provisions of §1721 (49)-1721(63) (except those contained in sub-sections (b), (e) and (d) of § 1721(57)): (a) those placed by an owner or lessee of a place of business or residence on land be-longing to said owner or lessee, and not more than 250 feet from such business or resi-dence and relating solely to merchandise, services or entertainment sold, produced, manufactured or furnished at such place of business or residence; (b) those placed on any farm by the owner or lessee relating to farm produce, merchandise, services or entertainment sold, produced, manufactured or furnished on such farm; (c) those adver-tising for sale or rent real property upon which the sign is located; (d) official notices posted under the direction of any public or court officer; (e) danger or precautionary signs relating to the premises or signs warn-ing of the condition of or dangers of travel on a highway when authorized; (1) signs relating to any city, town, village or historic place or shrine; (g) notices of any railroad, bridge, ferry or other transportation or transmission company necessary for the direction or safety of the public; (i) advertisements not visible from any highway or other public place; (j) signs containing two square feet or less at a junction of two or more roads in the state highway system denoting the distance or direction of a residence or place of business; (k) signs upon property giving the name of the owner, les-see or occupant of the premises; (1) adver-

tisements within the corporate limits of cities and towns; (m) historical markers erected by proper authorities; (n) highway markers erected by proper authorities; (o) signs upon property warning the public against hunting, fishing or trespassing there-on; (q) signs painted on a barn, stable, or other permanent farm buildings which is at least 100 feet from the center line of any highway; (r) signs erected by West Vir-ginia firms, persons or corporations adver-tising natural scenic caverns located in the State. (§ 1721 (62))

Any advertisement, advertising sign or advertising structure, which is erected, maintained, etc., in violation of Article 22, is hereby declared to be a public and pri-vate nuisance and shall be forthwith re-moved by the Commissioner or his repre-sentatives: Provided, that if any outdoor advertising sign or structure of the value of 100 dollars or more bears the name of the owner thereof, and said owner holds an unexpired permit as provided for in § 1721 (52), the owner shall be given writ-ten notice of the violation and shall have 30 days to show that the sign or structure is not in violation of the provisions of Article 22. (1721(63))

WISCONSIN

T'Visconsin Statutes, 1957

The State highway commission is author-ized to make plans for and construct the "Silent Cross Memorial Highway." It shall make plans for suitable landscaping, seeding and planting including appropriate wayside development for emergency stops and for rest and observation. It may by orders regulate and restrict the use of land along such location, right-of-way or highway. (84.103(1), (2), (4)(c))

(1) No sign shall be placed within the limits of any street or highway except such as are necessary for the guidance or warning of traffic. (2) The State highway commis-sion shall prescribe regulations with respect to the erection of signs on public highways. No advertising sign shall use prominently any words, or combination of words, com-monly used for the guidance or warning of


travel, nor shall any advertising sign be erected so as to endanger travel on the high-ways, either by causing an obstruction to view or otherwise. (3) Any person who vio-lates these provisions or the regulations of the State Highway Commission or County Highway Committee, shall be fined not less than $10 nor more than $100. (§ 86.19)

(1) No person shall erect any advertising or other sign within any public highway within a distance of 1,000 feet from the in-tersection of any two or more highways outside the corporate limits of any city or village unless permission is received from the proper authority. (2) The authorities in charge of the maintenance of the highway shall remove all such prohibited advertising. signs, etc. (4) The triangles bounded by any two adjacent intersecting highways and a line drawn between the points on the cen-ter lines of said highways 1,000 feet from the intersection of their center lines, are declared prohibited ground for the erection of any danger producing advertising signs, when such intersection is beyond the corpo-rate limits of any city or village. No ad-vertising signs shall be erected within such triangles which will endanger the safety of the public traveling along any highways. Q 86.191)

(1) It is unlawful for anyone to place upon or in view of any highway or railway crossing any unauthorized sign, light or reflector, signal, marking or device which: (a) purports to be or is an imitation of or resembles an official traffic control device or railroad sign or signal; (b) attempts to direct traffic; (c) hides from view or by its color, location, brilliance or manner of op-eration interferes with the effectiveness of any official traffic control device or railroad sign or signal. Q 346.41)

WYOMING

Wyoming Compiled Statutes, 1945

Whoever paints, prints, pastes, or other-wise marks upon, or in any manner places upon or affixes to, any building, fence, wall or tree, without the consent of the owner thereof, any word, letter, character, or any notice shall be fined not more than 50 dol-

lars. 'Exempted are any handbill or notice of any public sale of property posted by any sheriff, constable, administrator, ex-ecutor or guardian, or any notice required by law to be posted. (§ 9-2009)

DIsmIcT OF COLUMBIA

District of Columbia Code, 1951

The Commissioners of the District of Co-lumbia are authorized and empowered after public hearingsto make and to enforce such regulations as they may deem advisable (in so far as necessary to promote the public health, safety, morals and welfare) to con-trol, restrict and govern the placing of all outdoor signs and other forms of exterior advertising on public ways and public space under their control and on private property within public view. Q 1-231)

No one shall engage in the business of erecting or maintaining any sign for out-door display within the District of Colum-bia without first obtaining a license from the superintendent of licenses. (§ 1-232)

Anyone violating any provision of §§ 1-231, 1-232 or any regulations promulgated pursuant thereunder shall upon conviction be fined not less than $5 nor more than $200. Q 1-233)

No sign or advertisementrelating to the sale, rent or lease of land or premises shall be located on the sidewalk or parking of any street, avenue or road. One painted or printed sign or advertisement for the sale, rent or lease of land or premises may, with the written consent of the owner or legal representative of the owner, be placed, by any one of not exceeding three real estate agents, on any lot, piece, or parcel of land abutting on a street, avenue or road or at-tached to the exterior of any building front-ing thereon. (§ 7-1001)

It is forbidden to display any sign, plac-ard, or other form of advertisement on United States Capitol grounds. Q 9-121)

Judicial Decision

Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954). Applies to the Fed-eral Constitution. District of Columbia Re-development Act sustained against a chal-

APPENDIX B

93

lenge on the ground that some property was to be taken which was not blighted or dan-gerous, and the owners of such property were being unconstitutionally deprived of their land.

The concept of the public welfare is broad and inclusive. . . The values it represents are spiritual as within the province of the legislature to determine that the commu-nity should be beautiful as well as healthy.

If those who govern the District of Columbia decide that the Nation's capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.

HAwAII

Revised Laws of Hawaii, 1955

Defines billboards and outdoor advertis-ing. (ch. 154, § 1)

No person shall erect any billboard or engage in the business of outdoor advertis-ing or maintaining billboards without pay-ing the tax provided therefor. (ch. 154, § 2)

It shall be unlawful for any person to erect or maintain within the city and county of Honolulu any billboard of a surface sign space of more than ten feet six inches in height. (ch. 154, § 4)

No billboards shall be erected or main-tained except in accordance with the pro-visions of chapter 154 and unless thesame are safely and securely built and construc-ted in accordance with the specifications set forth. (ch. 154, § 5)

It shall be unlawful for any person to erect or construct any billboard without first obtaining a building permit from the building inspector of the city and county of Honolulu. (ch. 154, § 6)

No person shall erect or maintain any billboard or outdoor advertising in the city and county of Honolulu except in the busi-ness districts (as defined in ch. 154, § 1(e)). (ch. 154, § 7)

All billboards which are constructed on street lines or within three feet therefrom, shall have a smooth surface and no nails, tacks or wires shall be permitted to pro-trucle except electrical reflectors or devices extending over the top and in front of the billboards to be used for illuminating pur-poses. (ch. 154, § 3)

It shall be unlawful for any person, ex-cept a public officer or employee in perform-ance of a public duty to place in any man-ner or otherwise fasten any card, banner, handbill, sign, poster or advertisement or notice of any kind on any curbstone, lamp-post, pole, hitching post, watering trough, hydrant, bridge or tree upon a public street or public property within the city and county of Honolulu. (ch. 154, § 9)

It shall be unlawful for any person, except a public officer or employee in performance of a public duty, or a private person in giv-ing legal notice, to place in any manner any advertisement or notice upon any property without the written consent of the owner, holder; lessee, agent or trustee thereof. (ch. 154, § 10)

It shall be unlawful for any person to place in any manner upon any billboard or painted wall sign, any statement, words or signs of an obscene, indecent, or immoral nature, or any picture of any human figure in such detail as to offend public morality or decency or any other matter or thing of an obscene, indecent or immoral nature. (ch. 154, § 14)

Any person violating any provision of Chapter 154 shall be fined not less than $25 nor more than $500, or imprisoned not more than one month, or both. (ch. 154, § 15)

The term "outdoor advertising" as used in §§ 155-70 to 155-75 includes all adver-tising so displayed as to attract the atten-tion of persons on any public highway, or while in a vehicle of a common carrier, or in any station, public building, park or other public place, whether such advertising be by means of )rinting, writing, painting, pic-tures or a combination thereof, and what-ever be the means of display, except- that it does not include advertising located upon private property and relating exclusively to the business conducted on such property or the sale or rental thereof. (ch. 155, § 70)

Every person engaging in outdoor adver-tising in any county shall pay into the treas-ury thereof an annual license fee. Such li-cense shall be conditioned upon the mainte-nance of all advertising devices in a safe condition, and the keeping and observing of the provisions of §§ 155-70 to 155-75. (ch. 155, § 71)


No person shall display any outdoor ad-vertising except upon billboards or signs and bulletin boards or walls erected, owned or leased by him, and no person shall place in any manner any handbill, sign, poster, advertisement or notice of any kind what-soever or cause the same to be done on any curbstone, block, stone or portion or parts of any sidewalk or street, upon any tree, lamp l)ost, hitching post, telegraph, telephone or electric light pole, hydrant, bridge, pier or upon any public structure, and no person shall so place any outdoor advertising upon any private wall, window, door, gate, fence or other private structure or building unless he is the owner thereof, without the written consent of the owner or person in control thereof first obtained. These restrictions shall not apply to any order, decree or writ-ing by law or by order of any court required to be posted on any place whatsoever. (ch. 155, § 72)

No person shall display any outdoor ad-vertising giving or purporting to give infor-mation from whom or where medicines may be obtained for the cure, prevention or treat-ment of social diseases or containing pic-tures or illustrations of an immoral char-acter. (ch. 155, § 73)

All billboards, signboards and structures of any kind erected or maintained for plac-ing thereon outdoor advertising shall be so constructed that the same shall be reason-ably secure. (ch. 155, § 74)

Any person who violates or fails to ob-serve any of the terms of §§ 155-70 to 155-75, shall be fined not less than $50 nor more than $250 for each offense. (ch. 155, § 75)

PUERTO Rico

Laws of Puerto Rico

Defines advertisement, commercial sign and locational sign. (tit. 9, § 31)

Except as provided, the placing of any sign within a distance of 500 meters on both sides from the center of the roads in Puerto Rico, is hereby prohibited, except in such areas where the Zoning Regulations prepared by the Planning Board are or may become effective and such Regulations pro-vide otherwise. (tit. 9, § 32)

The. following signs are exempted from the provisions of tit. 9, §32: (1) traffic signs permitted by the Department of Public Works; (2) provisional warning and signs indicating danger; (3) commercial signs without intermittent illumination posted in the rural zone with the previous approval of the Planning Board. The Board is author-ized to regulate the posting, size, location and sha.pe of said commercial signs. (4) locational signs provided they have been previously approved by the Planning Board. (tit. 9, § 33) (a) Any existing sign which, on the date tit.

§§ 31-38 take effect, does not meet the requirements of these provisions or the regulations promulgated hereunder, shall be considered not in conformity with law. Such sign may continue to be used provided a proper permit is obtained, but the sign shall not at any time be changed, enlarged, im-proved or in any way altered. Every sign not in conformity with law shall be deleted within five years on and after the provisions of tit. 9, §§ 31-38 take effect. (b) All com-mercial or locational signs exceeding the size approved by the Board and whose location deviates the attention and obstructs the vis-ibility of drivers over the roads, shall be considered not in conformity with law. Such signs may continue to be used for the same purposes for which they were posted pro-vided the proper permit is secured from the Bureau of Permits. They shall be deleted within three years on and after the provi-sions of tit. 9, §§ 31-38 take effect. (tit. 9, § 34)

Any one who erects any prohibited sign shall be guilty of a misdemeanor and, upon conviction shall be fined not less than 20 dollars nor more than 100 dollars, or be imprisoned for a maximum term of 90 days, or both. (tit. 9, § 37)

No person shall erect billboards, signs or bulletin boards upon property belonging to, or subject to an easement in favor of Puerto Rico upon or adjoining public roads or highways and no person shall place in any manner a sign of any kind upon a tree, rock or natural object upon such property. (tit.

§ 313)

APPENDIX B

95

No person shall place in any manner a sign of any kind on any curbstone, flagstone, or any other part of any sidewalk or street pavement or upon any tree, lampost, hitch-ing post, telegraph or telephone pole, hy-drant, bridge pier or upon any public struc-ture within the limits of any public street or highway. (tit. 10, § 314)

No person shall post upon or in any place within Puerto Rico where same can be seen from the highways, streets, alleys, or other public places, any advertisement of any character giving information from whom or where medicine or remedies for social dis-eases may be obtained. (tit. 10, § 315)

No person shall post so that the same can be seen from highways, streets, alleys, or other public places any advertisements con-taining pictures or illustrations of an ob-scene or immoral character. (tit. 10, § 316)

No billboard within the urban limits of municipalities shall exceed ten feet in width by ten feet in height unless placed against a wall. An annual license tax shall be col

lected by municipalities for such signs erected. Permitted are signs on, or affixed to, buildings occupied for business purposes containing the names of the person or firm doing business, or:setting forth -the-names, prices and merits of articles therein sold or a description of the business carried on. (tit. 10, § 317)

Advertising matter displayed on property adjoining the public roads of Puerto Rico shall be subject to an annual Common-wealth tax. (tit. 10, § 318)

Advertisements or announcements of the United States, Commonwealth or Municipal governments are exempt from the restric-tions of tit. 10, §§ 313-320. (tit. 10, § 319)

Any one violating any provision of Title 9, §§ 313-320 shall be guilty of a misde-meanor and shall be fined not less than 10 dollars nor more than 100 dollars. (tit. 10, § 320)

Any owner, holder or operator of adver-tising posters shall pay a license fee. (tit. 13, § 1291 (50))

APPENDIX C

TABLE OF CASES CITED Page

Advertising Corp. v. Linzell, 168 Ohio St. 259 (1958) ..........................36, 37, 79 Allen v. City of Los Angeles, 210 Cal. 235, 291 Pac. 393 (1930) .................. 41 Anderlik v. Iowa State Highway Comm., 240 Iowa 919, 38 N.W.2d 605 (1949) 33 Anthony Carlin Co. v. Halle Bros. Co., 23 Ohio App. 115, 155 N.E. 398 (1926) ... 34 Appecil of Liggett et al., 291 Pa. 109, 139 At!. 619 (1927) ...................... 47, 83 Bang v. Forman, 244 Mich. 571, 222 N.W. 96 (1928) .......................... 35 Barney & Casey Co. v. Town of Milton, 324 Mass. 440, 87 N.E.2d 9 (1949) ..... 69 Baseball Pub. Co. v. Bruton, 302 Mass. 54, 18 N.E.2d 362 (1938) ............... 36, 69 Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954) .............45, 92 Bischofv. Merchants National Bank, 75 Neb. 838,106 N.W. 996 (1906) ........ 34 Borough Bill Posting Co. v. Levy, 144 App. Div. 784,129 N.Y. Supp. 740 (1911).. 36 Breard v. Alexandria, 341 U.S. 622, 71 S. Ct. 920, 95 L. Ed. 1233 (1951) .......... 33, 49 Brougher v. Board of Public Works of San Francisco, 107 Cal. App. 15, 290 Pac.

140 (1930) .......................................................... 44,60 Brown-Brand Realty Co. v. Saks & Co., 126 Misc. 336, 214 N.Y. Supp. 230

(1925) ............................................................. 34 Bryan v. Chester, 212 Pa. St. 259, 61 Ati. 894 (1905) .......................... 48 Cadwalader v. Bailey, 17 R.I. 495, 23 At!. 20 (1891) .......................... 34 Carazalla v State of Wisconsin., 269 Wis. 593, 71 N.W.2d 276 (1955) ............ 33 Chase v. Cram, 39 R.I. 83, 97 At.l. 481 (1916) ................................ 34 Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67, 35 S. Ct. 678, 59 L. Ed. 1204

(1915) .............................................................. 38 Chicago v. Gunning System, 214 Ill. 628, 73 N.E. 1035 (1905) ...............38, 39, 63 Churchill and Tait V. Rafferty, 32 P.I. 580 (1915) appeal dismissed, 248 U.S. 591,.

39 S. Ct. 20, 63 L. Ed. 436 (1918) .......................................36, 37, 40 Cincinnati v. Criterion Adv. Co., 32 Ohio App. 472, 168 N.E. 227 (1929) ......... 46 Cincinnati v. i)lorton, 58 Ohio App. 485, 16 N.E.2d 826 (198) ................. 47 City of New York, In Re, 57 App. Div. 166, 68 N.Y. Supp. 196, aff'd 167 N.Y. 624,

60 N.E.2d 1108 (1901) ................................................ 52 City of Richmond v. Dervishian, 190 Va. 398, 57 S.E.2d 120 (1950) ............. 53 City of Rochester v. West, 29 App. Div. 125, 51 N.Y. Supp. 482 (1898), aff'd 164

N.Y. 510, 58 N.E. 673 (1900) .......................................... 40 Commonwealth v. Boston Adv. Co., 188 Mass. 348, 74 N.E. 601 (1905) .....33, 38, 42 Commonwealth v. Trimmer, 53 Dauphin Co. Rep. 91 (Pa. 1942) ............... 44, 83 Cortnor v. City of University Park (Tex. Civ. App. 1940) 142 S.W.2d 706 45 Crawford v. Topeka, 51 Kan. 756, 33 Pac. 476 (1893) .......................... 64 Cream City Bill Posting Co. v. Milwaukee, 158 Wis. 86, 147 N.W. 25 (1914) 40,47 Criterion Service, Inc. V. City of East Cleveland (Ohio App. 1949) 88 N.E.2d 300

(1949) appeal dismissed, 152 Ohio St. 416, 89 N.E.2d 475 (1949) ........... 78 Curràn Bill Posting and Distributing Co. v. Denver, 47 Cob. 221, 107 Pac. 261

(1910) ...........................................................38,39,46,60 Davis v. Spragg, 72 W. Va. 672, 79 S.E. 652 (1913) ............................ 34 Dernier v. Rutland Ry. L. & P. Co., 94 Vt. 187, 110 At!. 4 (1920) .............. 35 Dowsey V. Village of Kensington, 257 N.Y. 221, 177 N.E. 427 (1931) .......... 76 East ham v. Church, 301 Ky. 93, 219 S.W.2d 406 (1949) ....................... 34 Ellis v. Ohio Turnpike Commission, 162 Ohio St. 86, 120 N.E.2d 719 (1954) . .. .46, 52, 79 Essex v. Hindenlang, 35 N.J. Super. 479, 114 A.2d 461 (1955) .................. 53

96

APPENDIX C 97

Page Ex Parte Savage, 63 Tex. Crim. Rep. 285, 141 S.W. 244 (1911) .................. 39 Federal Advertising Corp. v. Fairiawn, 8 N.J. Misc. 619, 151 Ati. 285 (1930) ..... 39, 74 Federal Advertising Corp. v. Ha.rdin, 137 N.J.L. 468, 60 A.2d 615 (1948) ......... 46 Fifth Avenue Coach Co. v. New York, 221 U.S. 467, 31 S. Ct. 709 (1911) ........ 39 First National Bank v. Tyson, 133 Ala. 459, 32 So. 144 (1902) .................. 34, 57 Fourteen Twenty-six Woodward Avenue, Inc. v. Wolf, 312 Mich. 352, 20 N.11,7.2c1

1 1 217 (1945) . .......................................................... 40,44 Franklin Furnifrare Co. v. Bridgeport, 142 Conn. 510, 115 A.2d 435 (1955) ....... 33, 61 Fred Wolf erman Bldg. Co. v. General Outdoor Adv. Co. (Mo.), 30 S.W.2c1 157

(Kansas City Ct. of App., 1930) ........................................ 46, 71 Frischkorn Construction Co. V. Lambert,.315 Mich. 556, 24 N.W.2d 209 (1946)... 45,70 Gaertner v. Donnelly, 296 Mass. 260, 5 N.E.2d 419 (1936) ..................... 36, 69 General Outdoor Advertising Co., Inc. 'v. Department of Public Works, 289 Mass.

149, 193 N.E. 799 (1935), appeal dismissed on motion of appellants, 296 U.S. 543, 56 S. Ct. 495 (1936) .....................37, 40,41,42, 43, 44, 45, 46, 47, 48, 69.

General Outdoor Adv. Co. v. Indianapolis, 202 md. 85, 172 N.E. 309 (1930) ..40, 41, 48, 64 General Outdoor Adv. Co. V. Village of Evendale, 50 Ohio 354, 124 N.E.2d 189

(1954) ............................................................. Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363

79

(1957) ................................................................. 48,68 Grau?nan v. Department of Highways, 286 Ky. 850,151 S.W.2d 1061 (1941) 53 Hales v. Atlantic Coast Line R.R. Co., 172 N.C. 104, 90 S.E. 11(1916) .......... 34 Hailer Sign Works v. Physical Culture Training School, 249 Iii. 436, 94 N.E. 920

(1911) .............................................................. 38,63 Hay-a-Tampa Cigar Co. v. Johnson, 149 Fla. 148, 5 So.2d 433 (1942) ............ 62 Hitchman v. Oakland Township, 329 Mich. 331, 45 N.W.2d 306 (1951) .......... 70 Hopkins the Florist, Inc. v. Fleming, 112 Vt. 389, 26 A.2d 96 (1942) ............ 35 Houghtaling v. Stoothoff, 170 Misc. 773, 12 N.Y.S.2d 207 (1937), aff'd 259 App.

Div. 854,19 N.Y.S.2d 510 (1940) ....................................... 34 Houston v. Zahm, 44 Ore. 610, 76 Pac. 641 (1904) ............................ 34 James, In re, 99 Vt. 265, 132 Atl. 40 (1926) ................................. 36 John H. Swisher & Son, Inc. v. Johnson,, 149 Fla. 132, 5 So.2d 441 (1942) .. .44, 47, 48, 62 Kansas City Gunning Adv. Co. v. Kansas City, 240 Mo. 659, 144 S.W. 1099

(1912) ............................................................. 71 Kansas City v. Liebi, 298 Mo. 569, 252 SW. 404 (1923) ....................... 71 Keck v. Manning, 313 Ky. 433, 231 S.W.2d 604 (1950) ........................ 53 Keibro v. Myrick, 113 Vt. 64, 30 A.2d 527 (1943) ................34, 36, 40, 41, 47, 87 Klaber V. Lakenan, 64 F.2d 86 (CCA 8th 1933) ................................ 34 Krantz v. Town of Amherst, 192 Misc. 912, 80 N.Y.S.2d 812 (1948) ............. 45 Lamb v. Pontiac, Oxford & Northern R.R. Co., 150 Mich. 340, 113 N.W. 1110

(1907) .............................................................. 34 Lexington v. Governor, 295 Mass. 31, 3 N.E.2d 19 (1936) ...................... 44, 69 Lionshead Lake, Inc. v. Wayne Township, 10 N.J. 165, 89 A.2d 693 (1952) 38 Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38 (1949) .............. 41, 60 Louisviil N.A. & C. Ry. v. Malott, 135 md. 113, 34 N.E. 709 (1893) ............. 34 Mallary, Inc. v. New Rochelle, 184 Misc. 66, 53 N.Y.S.2d 643 (1944), aff'd 295

N.Y. 712, 65 N.E.2d 425 (1946) .......................................40, 46, 76 McClintic-Marshall Co. v. Ford Motor Company, 254 Mich. 305, 236 N.W. 792

(1931) ........... ...................................... . ........... 34,35,36

McCullough v. Broad Exchange Co., 101 App. Div. 566, 92 N.Y. Supp. 533 (1905), aff'd 184 N.Y. 590, 77 N.E. 1191 (1906) ................................. 34, 35


Page

Merritt v. Peters, Fla., 65 So.2d 861 (1953) ................................. 44 Mid-State Adv. Co. v. Bond, 274 N.Y. 82, 8 N.E.2d 286 (1937) ................. 76 Miller v. Weingart, 317 Iii. 179, 147 N.E. 804 (1925) ......................... 35 Minneapolis Gas Co. v. State, Minn. Supreme Court, Docket No. 37568, No. 101,

July 11, 1958 ........................................................ 53 Murphy, Inc. V. Town of Westport, 131 Conn. 292,40 A.2d 177 (1944) .33, 36,40,41; 44,61 National Silk Dyeing Co. v. Grobart, 117 N.J.Eq. 156, 175 Ati. 91(1932).......... 34 New Orleans v. Per gament, 198 La. 852, 5 So.2d 129 (1941) .............44, 45, 46, 65 Noble State Bank v. Haskell, 219 U.S. 104, 31 S. Ct. 186, 55 L. Ed. 112 (1911) 38,48 O'Mealia Outdoor Adv Co. v. Borough of Rutherford, 128 N.J.L. 587, 27 A.2d 863

(1942) ............................................................... 48,74 Opinion of the Justices, 132 A.2d 440 (Me. 1957) .............................. 53 Opinion of the Justices, 232 Mass. 605, 124 N.E. 319 (1919) .................... 43 Opinion of the Justices, 330 Mass. 713, 113 N.E.2d 452 (1953) .................. 51 Opinion of the Justices, 132 A.2d 613 (N.H. 1957) ............................ 53 Oscar P. Gustaf son Co. v. Minneapolis, 231 Minn. 271, 42 N.W.2d 809 (1950) 44, 70 Packer Corporation v. Utah, 285 U.S. 105 (1932), affirming 78 Utah 177, 2 F.2d

114 (1931) .........................................................41, 42, 48 Pacific Rys. Advertising Co. V. City of Oakland, 98 Cal. App. 165, 276 Pac. 629

(1929) ............................................................... 60 Passaic v. Paterson Bill Posting Co., 72 N.J.L. 285, 62 Ati. 267 (1905) ......38, 39, 44, 74 People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N.Y. 126,88 N.E. 17 (1909) 38 People v. Green, 85 App. Div. 400, 83 N.Y. Supp. 460 (1903) ................... 38, 75 People v. Murphy, 195 N.Y. 126, 88 N.E. 17 (1909) ........................... 33 People v. Norton, 108 Cal. App. 767, 288 Pac. 33 (1930) ....................... 47, 60 People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799 (1943) ........................ 33 Perlmutter v. Greene, 259 N.Y. 327, 182 N.E. 5 (1932) ........................ 42, 76 Pontiac Improvement Co. v. Board of Commissioners, 104 Ohio St. 447, 135 N.E.

635 (1922) ........................................................... 52 Preferred Tires, Inc. v. Village of Hempstead, 173 Misc. 1017, 19 N.Y.S.2d 374

(1940) .......................................................40,44,45,46, 76 Pritz v. Messer, 112 Ohio St. 628,149 N.E. 30 (1925) .......................... 45 Robinson v. State, 207 Misc. 325, 137 N.Y.S.2C1 673 (1955) ..................... 33 Rochester Poster Adv. Co. v Smit hers, 224 App. Div. 435, 231 N.Y. Supp. 315

(1928) .............................................................. 36 Ruth v. Incorporated Village of Colonie, 198 Misc. 608, 99 N.Y.S.2d 471 (1950)... 76 St. Louis Gunning Adv. Co. v. St. Louis, 235 Mo. 99,137 S.W. 929 (1911) .. .39, 45, 47, 71 St. Louis-Poster Advertising-Go-v. St. Louis, 249 U.S. 269,39 S. Ct. 274, 63 L. Ed.

599 (1919) .......................................................40,46,47,71 Schnider v. State, 38 Cal.2d 439, 241 P.2d 1 (1.952) ........................... 33 Siedler v. Waln, 266 Pa. St. 361, 109 Ati. 643 (1920) .......................... 34 Smick v. Commonwealth (Ct. of App. of Ky.) 268 S.W.2d 424 (1954) ........... 33 Southern Advertising Co. v. Sherman (Ct. of App. Tenn., 1957) 308 S.11- 7.2d 491 37 State v. Caplan, 100 Vt. 140, 135 Ati. 705 (1927) ............................. 36 State ex rel. Civillo v. City of New Orleans, 154 La. 271, 97 So. 440 (1923) ....... 45, 65 State v. Ga?nelin, 111 Vt. 245, 13. A.2d 204 (1940) ............................. 36 State v. Jonasson, 78 Idaho 205, 299 P.2d 755 (1956) .......................... 53 State v. Martin, 38 Wash.2d 834, 232 P.2d 833 (1951) ........................ 53 State v. Staples, 157 N.C. 637, 73 S.E. 112 (1911) ............................. 39, 77 State v. Whitlock, 149 N.C. 542, 63 S.E. 123 (1908) ........................... 39, 77 State v. Wieland, 269 Wis. 262, 69 N.W.2d 217 (1955) ........................ 46

APPENDIX C 99

Page State Highwa.y Commission v. Burk, 200 Ore. 211, 265 P.2d 783 (1954) ........... 33 Stoner McCray System v. City of Des Moines, 247 Iowa 1313, 78 N.W.2d 843

(1956) ............................................................. Stokes, W. S., Jr., Inc. v. iViatney, 194 Va. 339, 73 S.E.2d 269 (1952) ............

48,64 34

Story v. N.Y. Elevated R.R. Co., 90 N.Y. 122, 43 Am. Rep. 146 (1882) .......... 33 Tho?nas Cusack Co. v. Chicago, 242 U.S. 526, 37 S. Ct. 190 (1917) ............. 63 Thompson v. City of Carrollton (Tex. Civ. App. 1948) 211 S.W.2d 970.......... 45 Town of Greenburgh v. General Outdoor Adv. Co., 109 N.Y.S.2d 826 (1951) ...... 48, 76 Town of Milton, v. Donnelly, 306 IViass. 451, 28 N.E.2d 438 (1940) ............40, 47, 69 United Adv. Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2c1 362 (1952) ..41, 46, 48, 74 Valentine v. Christensen, 316 U.S. 52, 62 S. Ct. 920, 86 L. Ed. 1262 (1942) 36 Varney & Green v. Williams, 155 Cal. 318, 100 Pac. 867 (1909) ..............38, 40, 60 Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303

(1926) ....................... ....................................... 40,78 Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99 (1923) ...................... 45, 64 Welsh v. Swasey, 214 U.S. 91, 29 S. Ct. 567, 53 L. Ed. 923 (1909) ............... 45 West Bros. Brick Co. v. City of Alexandria, 169 Va. 271, 192 S.E. 881 (1937),

appeal dismissed 302 U.S. 658, 58 S. Ct. 369 (1937), rehearing den'd 302 U.S. 781, 58 S. Ct. 480 (1938) .......................................... 45

White v. Johnson, 148 S.C. 488, 146 S.E. 411 (1929) .......................... 52 Whitmier & Filbreck Co. v. Buffalo, 118 Fed. 773 (C.C.N.Y., 1902) ............. 75 Williams v. Los Angeles R. Co., 150 Cal. 592, 89 Pac. 330 (1907) ................ 34 Wilshire, Inre (C.C.S.D. Cal., 1900) 103 Fed. 620 .........................38, 40, 59 Wolverine Sign Works v. City of Bloomfield Hills, 279 Mich. 205, 271 N.W. 823

(1937) .............................................................45, Wood v. Woodley, 160 N.C. 17, 75 S.E. 719 (1912) ............................

48, 70 34

Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. .120 (1925) ....................... 45, 75 Yale University v. New Haven, 104 Conn. 610, 134 Ati. 268 (1926) ............ 34

APPENDIX D

BIBLIOGRAPHY OF SELECTED READINGS

"Aesthetic Regulation Under the Police Power," Selected Essays on Cons titütional Law, Vol. 2, p. 902. Foundation Press (1938).

BALFOUR, F. C., "Battle of the Billboards in California," Proceedings, American Associa- tion of State Highway Officials, p. 110 (1951).

BARD, A. S., "Aesthetics and the Police Power," 15 American Journal of Econo?nics & Sociology 265 (1956).

CHANDLER, H. P., "The Attitude of the Law Toward Beauty," 8 American Bar Associa- tion Journal 470 (1922).

"Constitutional. Law—Signboard Regulation—Aesthetic Considerations," 29 New York

University Law Review 1017 (1954). "Constitutionality of City Ordinances 'Which Adopt State Statutes by Reference," 37

Oregon Law Review 272 (1958). CROCKETT, J. B., "Government Regulation of Billboard Advertising," 9 University of

Florida Law Review 213 (1956). DUKEMINIER, Jn., J. J., "Zoning For Aesthetic Objectives: A Reappraisal," 20 Law and

Contemporary Problems 218 (1955). FULTZ, B. V., "Billboard Regulationin Ohio," 17 Ohio State Law Journal 116 (1956).

GARDNER, GEORGE K., "The Massachusetts Billboard Decision," 49 Harvard Law Review

869 (1936). HAAR, CHARLES IVI., "In Accordance With a Comprehensive Plan," 68 Harvard Law Re-

view 1154 (1955). HICKMAN, L. E., "Aesthetics and the Police Power," 1 Pennsylvania Bar Association

Quarterly, No. 10, p. 24 (1929-1932). Land, The Yearbook of Agriculture (1958), U.S. Dept. of Agriculture. LEVIN, D. R., "Highway Zoning and Roadside Protection in Wisconsin," 1953 Wisconsin

Law Review 147. MEE, J. L., "Validity of Municipal Regulation of Outdoor Advertising," 4 The John

Marshall Law Quarterly 33 (1938-1939). "Nonconforming Uses: A Rationale and an Approach;" 102 University of Pennsylvania

Law Review 91 (1953). OLDS, NICHOLAS V., "Billboards Along the Highway," 26 Michigan State Bar Journal 15

(1947). "Signs and Billboards," Planning Advisory Service, Information Report No. 28, Ameri-

can Society of Planning Officials, July, 1951. PROFFITT, H. W., "Public Esthetics and the Billboard," 16 Cornell Law Quarterly 151

(1931). RHYNE, C. S. and RHYNE, B. W., "Municipal Regulation of Signs, Billboards, Marquees,

Canopies, Awnings and Street Clocks—Model Ordinance Annotated," National Institute of Municipal Law Officers, Report No. 137 (1952).

RODDA, C., "The Accomplishment of Aesthetic Purposes Under the Police Power," 27 Southern California Law Review 149 (1954).

SAYRE, P., "Aesthetics and Property Values: Does Zoning Promote the Public Welfare," 35 American Bar Association Journal 471 (1949).

SMITH, J. lvi., "Regulation and Control of Outdoor Advertising," Bureau of Governmental Research and Services, University of Washington, Report No. 76, September, 1947.

100

APPENDIX D

101

SOLBERG, E. D., "Rural Zoning in the United States," United States Department of Agriculture, Bureau of Agricultural Economics, Agriculture Information Bulletin, No. 59, January, 1952.

STALVEY, W. W. and BURNETT, J., "Discussion of Florida Outdoor Advertising Law," Proceedings, American Association of State Highway Officials, P. 184 (1951).

TERRY, H. T., "The Constitutionality of Statutes Forbidding Advertising Signs on Prop- erty," 24 Yale Law Journal 1 (1914).

WILSON, RUTH I., "Billboards and the Right to be Seen from the Highway," 30 George-town Law Journal 723 (1942).

"Zoning'-: Permissible Purposes," 50 Colorado Law Review 202 (1950). Zoning and Traffic, The Eno FOundation For Highway Traffic Control (1952).

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