Highway Beautification Act Primer

“A Chronological History"

In Memoriam

This Primer is dedicated to the memory of George F. McInturff, III, OAAA 's environmental consultant from 1974 - 1992.

George was the resident historian for the association concerning legislative and regulatory matters. He authored the first "Billboard Primer" and this edition is an update of his efforts.

His unselfish and tireless work to further the causes of the outdoor advertising industry are deeply appreciated by the association and its members.

TABLE OF CONTENTS

The 1958 Bonus Act
The Highway Beautification Act of 1965
HBA Implementation History
1966 Agency Hearings
1967 Congressional Hearings
1968 Amendments
Nonconforming Signs Issue
Federal / State Agreements
FHWA's Restudy, 1968 - 1970
The Volpe Rejuvenation
1970 Funding Amendments
The Highway Beautification Commission, 1971 - 1973
The 1974 Amendments
The 1976 Amendments
The 1978 Amendments
Federal Highway Administration Hearings
Stafford Bill, S.344 - 1979
Stafford Bill, S. 1641- 1980
National Advisory Committee on Outdoor Advertising and Motorist Information - 1979 - 1981
Stafford Bill, S.1548 – 1981
OAAA Deregulation Amendments, H.R. 621 1 – 1982
Funding Amendments - 1983 - 1984
The Gorton Bill, S. 1494 - 1985
Administration Bill - 1986
The Stafford Bill, S.2405 - 1986
The Shaw Bill, H.R. 3129 - 1986
Shuster Substitute, H.R. 3129 - 1986
1987 Amendments, H.R. 2 & Stafford, S. 185/387
Lewis/Shaw Amendments, H.R. 3389 - 1990
Chafee Amendments, S.2500 - 1989
Administration Amendments - 1991
House and Senate Amendments - 1991
Visual Pollution Control Act of 1991
Shaw/Lewis Bill, H.R. 1344/Andrews, H.R. 950/Chafee Bill S.593/S.965/S.1204 - 1991
Reid Amendment to S. 1204
Andrews Amendment to S. 1204
Andrews Amendment, H.R. 2950
Intermodal Surface Transportation Efficiency Act (ISTEA)
Amendments - December 18, 1991
Nonconforming Sign Amendment – 1992 (Dire Emergency Supplemental Appropriations Act of 1992)
Scenic Byways National Advisory Committee of 1993 And 1995 Scenic Byways Amendment
Senator Jeffords Amendment to S. 1173 (ISTEA of 1997)
Recent Activity
Summary of HBA Provisions
Control Mileage Under HBA of 1965
Outdoor Advertising Statistics
Federal Statute - 23 U.S.C. 131
Federal Regulation - 23 C.F.R. 750

The I958 BONUS ACT

In 1958, Congress passed the first outdoor advertising control legislation commonly known as the "Bonus Act", PL 85-381. However, since it was repealed and replaced by the Highway Beautification Act of 1965, it is now found in the United States Code at 23 U.S.C. 131 (j). Its provisions still exist by reason of agreements with the states.

The Bonus Act provided an incentive to states to control outdoor advertising within 660 feet of the Interstate highway system. States which volunteered for the program would receive a bonus of one-half of one percent of the Federal highway construction costs on segments of Interstate highways controlling outdoor advertising.

Bonus Act Amendments

Two amendments were adopted which allowed outdoor advertising along portions of Interstate highways. The first amendment was known as the "Cotton Amendment", which exempted any areas adjacent to part of a right-of-way, acquired prior to July 1, 1956. This allowed billboards in areas adjacent to interchanges, overpasses, and along roads that ran parallel to the interstate

The second, known as the "Kerr Amendment", allowed outdoor advertising in commercial and industrial zones. Incorporated municipal boundaries were frozen as of September 21, 1959 (the date of the amendment). Another feature of the Kerr Amendment was that outside city limits, signs were permitted only in commercial or industrial zones as of September 21, 1959. (In effect the zones were frozen. Inside city boundaries, zoning was not frozen for purposes of outdoor advertising control.)

Bonus Act Sign Compensation

The Bonus Act provided that states could either remove existing signs under the police power or under the power of eminent domain by paying just compensation. If the state chose to pay compensation the Federal government provided 90 percent as the federal match for Interstates.

States Enacting Bonus Act Provisions

The following 25 states enacted laws to implement the "Bonus" program:

California Maine Pennsylvania
Colorado Maryland Rhode Island
Connecticut Nebraska Vermont
Delaware New Hampshire Virginia
Georgia New Jersey Washington
Hawaii New York West Virginia
Illinois North Dakota Wisconsin
Iowa Ohio
Kentucky Oregon

Two states, Georgia and North Dakota, dropped the bonus program; Georgia by court decision and North Dakota by legislation.

Signs Allowed Under the Bonus Act

Under the Bonus Act, four classes of signs were permitted without regard to zoning.

• Class One Signs included directional or other official signs or notices that are required or authorized by law.

• Class Two Signs included signs advertising the sale or lease of the property upon which they are located. On premise signs were not permitted by the Bonus Act itself. This was apparently a drafting or typographical error. The national standards later included them in Class Two Signs.

• Class Three Signs included erected or maintained pursuant to authorization or permitted under state law and not inconsistent with the national policy and standards of the law, and advertising activities conducted at a location within 12 miles of the point at which such signs were located.

• Class Four Signs included signs erected or maintained pursuant to authorization in state law and not inconsistent with the national policy and standards, and designed to give information in the specific interest of the traveling public.

Bonus Act standards are set out at Title 23, Code of Federal Regulations, Part 750, Subpart A.

The Highway Beautification Act of 1965

The Highway Beautification Act of 1965 had its genesis in President Lyndon B. Johnson's State of the Union message in January 1965, when he mentioned a program to beautify the nation's highways. On February 8, 1965, the President announced his intention to call a White House Conference on Natural Beauty in mid-May 1965. In the message, the President noted that the existing program of voluntary outdoor advertising control (i.e. the bonus program) would expire on June 30, 1965 and that he intended to "recommend legislation to insure effective control of billboards along our highways."

The White House conference met in Washington, D.C. on May 24 and 25, 1965, chaired by of Laurence Rockefeller. There were 800 delegates and an additional number of observers. The Roadside Control panel recommended to:

Amend 23 U.S.C. 131 (the highway statute) to provide that the grant of primary and Interstate funds be conditioned with the requirement that the erection and maintenance of all outdoor advertising signs, displays, and devices in all areas within 1,000 feet of the outer edge of pavement of the primary system and Interstate system of highway be controlled.

A majority of the panelists were of the opinion that no off-premise advertising should be permitted in any areas adjacent to the primary system or Interstate system. One panelist, Phil Tocker (President of the OAAA), was of the view that off premise advertising should be permitted in commercial, industrial, and business areas without regard to their being zoned as such. A second panelist, Lowell K. Bridwell, then Under Secretary for Transportation, US Department of
Commerce, later joined Tocker in voting for outdoor advertising in commercial and industrial areas.

On May 26, 1965, the President transmitted four draft bills to provide for highway beautification. Three had to do with the eventual three titles of the Highway Beautification Act, namely, outdoor advertising control, junkyard control and highway landscaping. The fourth was a scenic roads bill.

Outdoor Advertising Control Bill - S.2084

The outdoor advertising control bill was introduced by Senator Jennings Randolph of West Virginia on June 3, 1965, as S.2084. Features were:

Roads controlled: Interstate and primary
Control zone: 1,000 Feet
Penalty: 100% of state's highway funds

Exemptions:

• Direction and other official signs, no standards.

• On-premise and sale-or-lease signs under national standards.

• Signs in commercial and industrial zones and areas, but no standards.

• Compensation - Not required. If a state proved they couldn't use police power, federa1 funds were available.

Hearings were held by the Senate and House Committees. The bill was debated in the Senate on September 15 and 16 and in the House on October 7.

Major amendments prior to passage, and the author:

Amendment: Author of Amendment:

Reduced control zone of 1,000 feet to 660 feet. Senate Committee
Reduced penalty from 100% to 10% Senator Randolph
Size, lighting and spacing to be set by agreement. Senator Randolph
"Consistent with customary use" criteria Representative Tuten
Just compensation required. Senate and House Committees

The HBA was signed into law by President Johnson October 22, 1965.

HBA Implementation History

Agency Hearings – 1966

The Bureau of Public Roads, (Federal Highway Administration's predecessor agency), held public hearings on the Act and its implementation in each state during March-May, 1966. The Federal Register for January 29, 1966, which announced the schedule for these hearings, also contained draft standards, allegedly for discussion purposes at the hearings. The draft standards were very restrictive, including size limits of 300 or 400 square feet, 500 foot spacing between signs, 250 or 500 foot spacing from at-grade intersections, and an unzoned area requirement that a sign on unzoned land must be within 300 feet of two commercial or industrial activities. Both Congress and the outdoor advertising industry pointed out that there was no legislative authority for national standards, and that the suggested draft standards would be prohibitive.

During the remainder of 1966, the Bureau of Public Roads studied the results of the public hearings, conferred with interested parties, and on January 10, 1967 reported proposed standards to the Congress as required by Section 303(b) of the Act.

The proposed standards were almost as restrictive as the draft standards of January 29, 1966. Size was increased to 650 square feet and spacing based on the average city block was increased to two signs per block. The unzoned commercial and industrial area definition still two signs per block. The unzoned commercial and industrial area definition still required two commercial or industrial activities within 300 feet.

Congressional Hearings – 1967

The hue and cry was resounding in opposition to the proposed standards. On March 3, 1967, Chairman John C. Kluczynski (Illinois) of the House Subcommittee on Roads wrote to the state Governors assuring them that there would be no penalty for failure to comply by the January 1, 1968, deadline set in the Act. On March 20, 1967 Chairman Kluczynski and ranking minority member William C. Cramer announced that the Committee would hold hearings which commenced on April 5, 1967. Close to 200 people testified or offered written statements resulting in a transcript of nearly 1,100 pages.

The Senate Subcommittee on Roads also held hearings during June and July, 1967. Although not as extensive as the House hearings, testimony and exhibits covered 462 pages.

Perhaps the only concrete result of the two hearings was contained in a letter from Secretary Alan S. Boyd, of Transportation, to Chairman Kluczynski, dated May 25, 1967, which contained this statement:

With regard to the determination of what constituted 'customary use' in the zoned commercial and industrial areas, we shall be glad to look to the States for certification that either the State authority or a bona fide local zoning authority has made such a determination.

This statement led to the 1968 amendment which permits certification of local zoning controls.

1968 Amendments

The Federal-aid Highway Act of 1968 made one important amendment to the Highway Beautification Act. The following was added to Section 131(d):
"Whenever a bona fide State, county or local zoning authority has made a determination of customary use, such determination will be accepted in lieu of controls by agreement in the zoned commercial and industrial areas within the geographical jurisdiction of such authority."

This amendment put into law the essence of a letter dated May 24, 1967, from Secretary of Transportation Alan Boyd to Chairman John Kluczynski of the House Subcommittee on Roads:

With regard to the determination of what constitutes customary use in the zoned commercial and industrial areas, we shall be glad to look to the States for certification that either the State authority or a bona fide local zoning authority has made such a determination."

This letter led to the FHWA procedure relating to certification of local zoning controls, by which a state could certify that a zoning authority had size, spacing and lighting criteria for signs in commercial and industrial areas, and enforced these criteria. In such situations, the local controls would govern, rather than those in the state agreement. The local controls could be stricter, less strict, or similar to the state controls.

One other amendment of note was contained in the 1968 Act, a provision that no sign could be required to be removed if the Federal share for compensation was not available.

Nonconforming Signs Issue

The magnitude of illegal and nonconforming sign removals under the HBA of 1965 was first identified in the 1966 nationwide inventory conducted by the Bureau of Public Roads. From the list of the 1.1 million outdoor advertising signs on state inventories, nearly 840,000 were found to be illegal or nonconforming and 260,000 were located in commercial and industrial areas (conforming signs).

Under the original HBA, there were two categories of nonconforming signs, nonconforming "compensable" and nonconforming "grandfathered."

A nonconforming "compensable" sign was lawfully erected but did not comply with the provisions of state law or regulations passed at a later date. These signs violated zoning or land use provisions and generally were located in rural areas (i.e. agricultural and residential land uses). The removal of such signs require just (cash) compensation.

A nonconforming "grandfathered" sign was a sign located in an otherwise legal location (i.e. commercial and industrial area), that was nonconforming due to size, space or lighting restrictions. Such signs could remain, and did not have to be removed. A grandfathered sign was allowed at its particular location for the duration of its normal life subject to customary maintenance. If removed by a state or locality, the sign required just compensation.

Federal / State Sign Agreements

On April 1, 1967, the US Department of Transportation was formed out of elements taken from the Department of Commerce, and the Bureau of Public Roads became the Federal Highway Administration (FHWA). Alan Boyd was named Secretary of Transportation and Lowell Bridwell became the new Federal Highway Administrator.

In June 1967, FHWA began negotiating with the various states to execute the size, lighting, and spacing agreements pursuant to section 131(d) of the Act. The first two agreements, executed on June 28, 1967, were with Vermont and Rhode Island. Both were more restrictive than later agreements; Vermont forewarned of its later posture by prohibiting all signs on the Interstate.

The Virginia agreement became the model for later agreements. Size was set at 1200 square feet, the 500, 300, and 100 foot spacing criteria was established, and the unzoned area definition required one activity within 500 feet and located on the same side of the highway.

Negotiations with the various states continued through 1971; the last agreement signed through these negotiations was with Texas, on May 2, 1972.

FHWA 's Restudy, 1969 – 1970

In January 1969, Former Governor John A. Volpe of Massachusetts replaced Alan Boyd as US Secretary of Transportation. On June 24, 1969, Secretary Volpe, intestimony before the Senate Subcommittee on Roads, announced that the Department would restudy the highway beautification program.

Controversies over the program, primarily relating to outdoor advertising control, had led to a decline of interest by all parties. Funds to carry out the three phases of the program had not been authorized or appropriated for two years. The uncertainty at the Federal level had caused the individual states to question the sincerity of the Federal Government in mandating protection of the highway environment.

The FHWA Restudy Report was submitted to the Congress in September 1970. Its major recommendations were:

• Continuation of the program at its present scope, with adequate funding.
• Elimination of the 660-foot control zone in rural areas
• Change in penalty to 1 percent per year, cumulative, to 10 percent maximum
• Continue mandatory compensation
• Allow tourist-oriented signs under national standards.

The only change in Federal law recommended by the FHWA Restudy Report and later adopted by the Congress was the elimination of the 660 foot control zone in rural areas.

The Volpe Rejuvenation 1969 – 1970

When he took office in January 1969, Secretary of Transportation John Volpe had reservations about the future of the highway beautification program. Later he was convinced, primarily by Doug Snarr, an outdoor operator in Utah, that the program had merit and should be enforced. On July 1, 1970, the Administration's highway bill was introduced in the Senate, calling for the amendments recommended in the FHWA Report and Restudy, which demonstrated substantial finding for outdoor advertising control.

On February 4, 1971, Secretary Volpe wrote to the Governors of the states not yet in compliance with the Act and warned them that the 10 percent penalty would be forthcoming if the states failed to comply. The year 1971 experienced a frenzy of activity; 11 states resisted Volpe's edict to the point of demanding hearings, which were held between August and October. By March 1972, all states except South Dakota had complied with the outdoor advertising provisions of the HBA.

1970 Funding Amendments

The Federal-Aid Highway Act of 1970 did not approve any substantive amendments to the HBA but created the Highway Beautification Commission and, for the first time, authorized substantial funding for the program:

• Fiscal year 1971 $27.0 million
• Fiscal year 1972 $20.5 million
• Fiscal year 1973 $50.0 million

The Highway Beautification Commission 1971 – 1973

The commission was created by the Federal-Aid Highway Act of 1970 (P.L. 91-605) and began operating late in 1971. There were 11 members; four from the Senate, four from the House of Representatives, and three public members appointed by the President.

Members were:

• Rep. Jim Wright, Chairman Mr. Alfred Bloomingdale
• Mrs. Marion Fuller Brown Sen. James L. Buckley
• Rep. Don H. Clausen Sen. Mike Gravel
• Rep. Kenneth J. Gray Rep. Wilmer D. Mizell
• Sen. Jennings Randolph Mr. Michael Rapuano
• Sen. Robert T. Stafford

Rep. Ed Edmondson, Rep. Fred Schwengel, Sen. Birch Bayh and Sen. Lowell P. Weicker, Jr., were members when the Commission was originally formed; they were replaced when not reelected, or when they resigned from the commission.

The Commission held seven public hearings: in Atlanta; Los Angeles; St. Louis; Meriden, Connecticut; Syracuse, New York; Iowa City, Iowa; and Washington, DC.

These hearings were attended by more than 1,000 people and more than 200 witnesses gave verbal or written testimony. Recommendations were received from a wide spectrum of the public, 35 state highway departments, 15 other state agencies, and seven Federal agencies.

The Commission also sponsored several symposiums dealing with such subjects as the aesthetic considerations in the design of new and existing highways, landscaping and planning aspects of highway beautification, and the possible need for regulation of on-premise signs. Individuals representing a wide range of expertise and opinion were invited to participate.

Two public opinion surveys were sponsored by the Commission. They were undertaken by deKadt Marketing and Research, Inc., Greenwich, Connecticut; and by Sindlinger and Company, Swarthmore, Pennsylvania. The purpose of these surveys was to determine the general public attitude regarding highway beautification, priorities which the public felt should be placed on expenditures of funds for beautification, and informational needs of motorists while traveling.

In August, 1972, the Commission issued an interim report and recommendations:

• Eliminate the 660 foot control zone in ma1 areas
• Improve motorist information systems
• Eliminate the hiatus period, 1965 to 1968, where compensation was not required, by requiring compensation for any sign "lawfully erected under state law"
• Steady funding
• State and local governments were urged to study on-premise controls

On December 31, 1973, the Commission issued its final report. The report, in addition to the above recommendations, made several suggestions on motorist services information, and recommended that the Secretary have the option of assessing less than a 10 percent penalty.

The only two recommendations of the Commission that resulted in substantial changes in the Federal law were the elimination of the 660 foot control zone in rural areas and making compensation mandatory for all lawfully erected signs, thereby eliminating the hiatus period from 1965 - 1968.

Perhaps the best opinion of the value of the Commission came from one of its members, Sen. Robert T. Stafford of Vermont, who was referring to the planned formation of the later 1979 National Advisory Committee on Outdoor Advertising and Motorist Information during remarks on the Senate FIoor on June 26,1979:
Mr. Stafford: "Mr. President, the Secretary of Transportation, I am informed, has asked the administration for permission to establish a Billboard Advisory Commission. Mr. President, what a farce. This issue has been studied to death. A few years ago, I was a member of a commission on billboards. That commission accomplished next to nothing.” (Emphasis added.)

1974 Amendments

The Administration's proposal to incorporate the 1973 Commission's recommendations was submitted to Congress as the Highway Beautification Act of 1974, S. 3161. The bill was later incorporated into the Federal-Aid Highway Act of 1974 (P.L. 93-643), signed on January 4, 1975.

The 1974 Act extended outdoor advertising controls beyond 660 feet outside of urban areas. This extension of control was limited to those signs visible from the main traveled way of the controlled highway and erected with the purpose of their message being read from such main traveled way.

The Act also eliminated the "hiatus period" by requiring compensation for any sign lawfully erected under state law.

Also, so-called "landmark signs" (artistic or historic significance), or signs painted on barns were allowed, containing messages such as "Chew Mail Pouch Tobacco."

The Act authorized $50 million for fiscal year 1975.

The 1976 Amendments

The Federal -Aid Highway Act of 1976 (P.L. 94 - 280) contained a number of minor amendments:

• Subsection 131 (o) was added, permitting retention of certain nonconforming directional-message signs in specific areas where sign removal would create a substantial economic hardship. FHWA was required to approve the retention.
• Logo signs (specific service signs) were permitted on federal-aid primary highway rights-of-way, limited to four categories of gas, food, lodging and camping. The original HBA of 1965 allowed logos on interstates only.
• Federal financing was provided for signs moved to beyond 660 feet and made nonconforming by the 1974 Act.

The act authorized $25 million per year for fiscal years 1977 and 1978.

The 1978 Amendments

The 1978 Amendments were the culmination of several years of sign ordinance battles and legal opinions between the FHWA, OAAA, and states over the issue of removing signs without payment of just compensation.

The history of the amendments can be traced to February 26, 1974, when the Mayor of Madison, WI, approved an ordinance prohibiting outdoor advertising in the city and amortizing all existing signs over a term of years and not paying just compensation for the signs upon removal.

On September 20, 1974, the Wisconsin Department of Transportation requested an opinion from the FHWA as to whether the state was obligated to pay just compensation for any or all of the signs to be removed under the Madison ordinance.

On December 21, 1974, FHWA Regional Counsel Roger Brady issued an opinion to the effect that the state was not required to pay for signs rendered nonconforming under state or local law. Thus Wisconsin would not be penalized if Madison removed signs along HBA-controlled highways without compensation.

The OAAA expressed to FHWA its dismay with the Brady opinion on various occasions. On May 12, 1975, a lengthy legal opinion prepared by OAAA's counsel, Pierson, Ball & Dowd, was delivered to FHWA, pointing out the fallacy of the Brady opinion.

On July 15, 1975, FHWA Chief Counsel, David E. Wells, withdrew the Brady opinion as "inappropriately issued." He stated that the matter was best left to state courts to resolve, since it involved the relationship of municipal law to state law.

On December 8, 1976, FHWA issued an opinion which said that "a state is only subject to the penalties in 23 U.S.C. 131 when compensation is not paid for the removal of lawful signs under laws passed to comply with the Act." This opinion meant that signs removed under local zoning ordinances could be removed without compensation.

The year 1977 saw many attempts to rectify the inequity of the December 8, 1976, FHWA position. Finally, the issue resulted in a meeting on September 13,1977, with US Transportation Secretary Brock Adams. Although key Congressional leaders who had been active in the passage of the 1965 Act agreed that the December 8, 1976, FHWA legal opinion did not reflect Congressional intent, no change to the FHWA position was made.

In the early days of the 95th Congress, second session (1978), compensation amendments were drafted and included in both the Senate and House bills. On the House side, amendments were approved by the Public Works Committee and were in the bill reported to the full House. In the Senate, however, the amendments were opposed by Vermont Sen. Robert T. Stafford, who offered a substitute amendment during full committee mark up, which was accepted by the full committee and by the Senate. Under Stafford's amendment, compensation was not guaranteed for any sign which at one time conformed to the 1965 Act. That would have meant no compensation for most signs in commercial or industrial areas.

On September 22, 1978, the most significant threat to the compensation amendments surfaced during the House floor debate. Rep. Peter H. Kostmayer (PA) offered an amendment which would have deleted proposed amendments to the HBA, including those on compensation. After extensive debate, the Kostmayer amendment was defeated, 199 to 76.

Although a number of key Congressmen spoke on behalf of the industry position, the following statement of subcommittee chairman Jim Howard sums up the issue most eloquently:

"Madam Chairman, I believe the crux of the issue is equity. This House, and the Congress as a whole, have repeatedly said that individual owners must be compensated for the taken of their property. The provision in the committee bill merely reaffirms what has always been the congressional intent."

The just compensation issue was debated by the Conference Committee and resolved in favor of the House position to require just compensation for any lawfully erected sign removed by a state or locality on a controlled highway.

Previously, there were two categories of signs considered nonconforming: nonconforming "compensable" and nonconforming "grandfathered". Due to the 1978 Amendments, the status of some billboards changed due to a locality enacting more restrictive sign ordinance than the state criteria. These are labeled as 1978 Amendment signs. Generally, signs in this category are not placed in the legal, conforming categories under federal or state requirements. As with other nonconforming signs, the removal of such signs require the payment of just compensation.

The just compensation amendment was part of the Surface Transportation Assistance Act of 1978 (P.L. 95 - 599).
In addition to the requirement that just (cash) compensation be paid for the removal of lawfully erected signs the Act was also amended: 1) to allow electronic variable message on-premise signs in bonus states; and 2) created a new category of exempt signs that advertise "free coffee" by nonprofit organizations.

Federal High way Administration Hearings

On November 27, 1978, Deputy Federal Highway Administrator John S. Hassell, to the consternation of the OAAA, announced at OAAA's Third Legal/Legislative Seminar in San Francisco that FHWA intended to reassess the Highway Beautification Program. The reassessment included holding a series of hearings throughout the country, along with the appointment of a National Commission to review the program and provide recommendations for its future direction.

The formal announcement appeared in the Federal Reaister on April 30, 1979, and the first hearings were held simultaneously by FHWA staff on June 5, 1979, in Boston, Chicago, and Portland, Oregon. Hearings were held during subsequent weeks in Baltimore, Kansas City, San Francisco, Atlanta, Dallas, Denver and New York City. The final hearing took place in Washington, DC on July 10 and 11, 1979.

Testimony may be summarized as follows:

• At the 11 hearings, 435 people testified.
• The general public did not respond to the hearings.
• Approximately 90 percent of those testifying favored continuation of the Highway Beautification Act and were supportive of outdoor advertising in general.
• FHWA maintained a docket for the reassessment program. There were over 1,100 submissions to the docket. Thirty-one of these were by State Highway Departments or, in two cases, the Governor, on behalf of the highway department.

FHWA reviewed these submissions to determine the consensus of the states in three areas: the Stafford bill (S.344), just compensation, and vegetation clearance.

The Stafford Bill (3.344)

State views

Seventeen states supported the Stafford bill or its concept of eliminating mandatory just compensation and having an optional Federal program. Six opposed the Stafford Bill. Eight had no position or no comment.

Just Compensation - State Views

Five states indicated the1978 compensation amendments offered them no problem. Four had no comment. The remaining 22 states had critical comments ranging from indicating that the 1978 amendments could cause problems to outright opposition. Two states questioned the constitutionality of the 1978 amendments.

Vegetation Clearance - State Views

Fourteen states favored allowing some clearing, minor trimming or purchase of blocked signs, or approved of present Federal Highway Administration policy leaving the decision up to the states. Eight opposed the idea of clearing vegetation is front of signs and the existing Federal Highway Administration policy. Nine states had no comment or no position, or stated they had no problem.

The Stafford Bill, 344 – 1979

S.344 was introduced by Sen. Robert T. Stafford of Vermont of February 6, 1979. It was referred to the Senate Committee on Environment and Public Works. After introduction, Sens. Howard Baker of Tennessee and Pete Dominici of New Mexico joined as co-sponsors.

Briefly, the bill would have had the following effect:

• Control of outdoor advertising would be optional.
• Payment of just compensation would be optional.
• No mandatory 10 percent penalty.
• Would provide for further application of the right-of way logo signs along the primary system.
• Continuation of bonus payments by FHWA.

Hearings were held by the Senate Subcommittee on Transportation on July 17 and 18, 1979. Witnesses in favor of S.344 included a number of environmental and garden club representatives. Witnesses in opposition included former Federal Highway Administrator Bill Cox, and former US Secretary of Transportation John Volpe, who made an eloquent statement in favor of continuing the program and requiring the payment of just compensation.

After passage in subcommittee, a full Senate Committee mark up took place on November 14, 1979. The following day, the WashingtonPost reported:
"The billboard industry won a multimillion dollar victory yesterday when the Senate Environment and Public Works Committee defeated a proposal to allow states to operate their own billboard removal programs." Sen. Robert T. Staffords's (R-VT) stateoption proposal was defeated by a 6-to-6 tie vote.

The Stafford Bill, S.1641-1980

Sen. Stafford did not end his efforts with this setback. On June 2, 1980, he offered an amendment to S. 1641, a hydroelectric power bill, which in essence copied S. 344. It failed.

National Advisory Committee on Outdoor Advertising and Motorist Information - 1979 – 1981

Duringthe same time frame that Sen. Stafford was introducing outdoor advertising control legislation, the Federal Highway Administration announced the formation of the National Advisory Committee on Outdoor Advertising and
Motorist Information in the Federal Register on July 12, 1979.

Membership consisted of:

Chairman, Thomas W. Bradshaw, Jr. Virginia W. Lacey
Secretary of North Carolina National Council of State Garden Clubs
Department of Transportation

Vice Chairman, Ernie Bonner Edward J. Leary
Bonner Planning of Oregon American Sign & Indicator Corp.

Secretary, Thomas Kimball Daniel R. Mandelker
National Wildlife Federation Washington University

Ross Barrett Yale Maxon

Metromedia, Inc. California Roadside Council Committee

Ruth H. Becker Frederick Middleton
Pennsylvania Roadside Council Sierra Legal Defense Fund

William M. Cox Charles E. Novel
Former Federal Highway Administrator Sanlyn & Associates, Inc.

Ronald E. W. Crisman Jessie M. Rattley
Secretary City Council Member
Vermont Agency of Transportation Newport News, VA.

Bert K. Dart Bobby G. Richardson
Foster & Kleiser Northern Commissioner
Mississippi State Highway Department

Charles F. Floyd Margaret H. Rush
University of Georgia District Highway Commissioner
South Carolina

Thomas H. Gibson Jane A. Schmidt
Skyline Caverns, Inc. Colorado-Wyoming
Hotel & Motel Assn.

George Hagemeister George Viverette
Eller Advertising Corp. American Automobile Association

Gerard P. Joyce Mathias Kemeny
Patrick Outdoor Media Travel Information Centers

The committee reviewed all information received through the 1979 FHWA public hearings as well as information received into the public docket. In addition, during the Committee's deliberations, 144 statements were made by the general public to the docket and 81 reports were filed by the FHWA staff.

The committee met six times between May 1980, and June 1981. The meetings, marked by intense debate and discussion, lasted two day each. Two of the six meetings were held by outside Washington, DC, in Atlanta and Chicago.

During the Chicago meeting, the committee toured the Foster & Kleiser plant in Chicago, IL to see first hand the production and construction of billboards.

Committee Debate and Recommendations

Early in thedeliberations it became apparent that the membership of the full committee was generally divided into two strongly committed but divergent groups. One industry-oriented group favored retention of the present Highway Beautification Act based on its results; supported mandatory compensation for sign removal; and agreed that roadside and tourist oriented businesses were entitled to relief from unfairly severe sign restrictions.

The environmental-oriented group was critical of the Highway Beautification Act; felt that the Act tried to cover too much territory; wanted to return major responsibility for billboard control to state and local governments with greatly relaxed compensation requirements such as amortization; and strongly supported alternative information systems in place of traditional outdoor advertising signs.

In order to organize the options into coherent packages, the Committee formed two subcommittees: Administrative and Legislative, and directed the subcommittees to develop reports and recommendations to the full Committee. The Administrative Subcommittee was comprised of industry and tourist-oriented members; the Legislative Subcommittee was comprised primarily of environmental-oriented members.

During the final meeting of the full Committee, the members discussed the subcommittee reports, weighed the alternatives available for improving the Highway Beautification Program, and then voted on the recommendations. The balanced nature of the Committee was reflected in the closeness of the votes between utilizing administrative procedures to change to the program or proposing changes to the law. The voting revealed the split opinions of the group and provided sometimes contradictory results. In many instances the votes did not give any clear direction for the future of the program.

The final report of the National Advisory Committee, at best, can be described as confusing; at worst, conflicting. For example, on the first day of its final meeting, the committee, by a vote of 11 to 8, recommended that further sign removals be made optional with the individual states and later rejected a similar recommendation that would have made the payment of just compensation also optional. The following day, the Committee recommended, by a vote of 12 to 10, deregulation of municipalities over 25,000 and urban cities. This would have allowed the use of amortization in these jurisdictions. A short while later, by a vote 12 to t 1, the committee rejected a recommendation which would permit amortization and levy a Federal user tax on nonconforming signs.

The National Advisory Committee Report was submitted to the FHWA in late 1981 at the same time as a new Administration. FHWA took no official action to follow-up on the report and it died.

The Stafford Bill, S.1548 – 1981

On July 30, 1981, Stafford introduced S. 1548, the Billboard Deregulation Act of 1981, which would have repealed the Highway Beautification Act of 1965. In August 1981, he announced that this bill would be offered as an amendment to S. 1024, the highway bill.

However, mark up of the highway bill took place on September 30, 1981, without the Stafford amendment being offered.

OAAA Deregulation Amendment, H.R. 6211-1982

In order to counter any possible reintroduction of Sen. Stafford's deregulation bill, S.1548, OAAA drafted a deregulation bill, which was inserted into the proposed House highway bill, HR 6211.

HR 6211 proposed that:

• Signs would be limited to commercial and industrial areas or to unzoned commercial and industrial areas as the state deemed appropriate. The existing exempt categories found in current subsection 131(c) were retained. The states would no longer spell out details of control in zoned and unzoned commercial and industrial areas, as required by the Federal/State agreement.
• Signs could not be erected in areas where funds had been expended to cause their removal.
• The compensation provisions of the current law would protect sign owners from the impairment of the customary use of signs by allowing maintenance of signs. States would be required to pay compensation to cover these situations.
• The states were encouraged to provide for scenic areas where signs were not permitted.
• The Governor of each state would certify the state's program to the Secretary of Transportation. The Secretary's oversight would be limited to assuring that the state made a proper certification and controlled signs in accord with the certification. The penalty provision of the current law was retained to permit the Secretary to enforce the law.

The section made no changes to the 1958 bonus program, the specific information signing (logo) program, or the information center program.

The amendment encountered considerable opposition from environmentalists and in the press. Although it passed the House, it was opposed strenuously in the Senate, primarily by Sen. Stafford, and it was withdrawn during the House - Senate conference in December 1982.

Funding Amendments, 1983 and 1984

In 1983 and 1984 there were attempts to provide a new funding source for the program, from the Highway Trust Fund instead of the General Fund. All such attempts failed.

The Gorton Bill, S. 1494 - 1985

On July 25, 1985, Sen. Slade Gorton of Washington introduced a bill which would have radically amended the Highway Beautification Act. The bill, S.1494, was cosponsored by Sens. Chafee (RI), Evans (WA), Hatfield (OR), lnouye (HI), Matsunaga (HI), Moynihan (NY), and Wilson (CA).

The bill proposed that:

• Compensation would be at the state option and amortization would be allowed. No federal funds would be expended if compensation was paid-100 percent by state funds.
• Nonconforming signs and conforming signs erected after July 1985, in commercial and industrial zones would be removed by the end of the next state legislative session. Signs in unzoned commercial and industrial areas would be removed by 1990.
• Elimination of federal-state agreements for signs in commercial and industrial areas. No new billboards would be permitted.
• Mandatory penalty for permitting vegetation cutting on state-owned right of way.
• Mandatory 10 percent penalty. No Secretarial discretion.
• Retention of bonus controls and payments. However, no funds were appropriated for bonus payments.

Senator Gorton testified on behalf of his bill before the Senate Committee on Environment and Public Works on May 20, 1986.

A number of states responded that the legislation would be very costly. As an example, CALTRANS provided an analysis that the bill could cost the state $45 million by the close of the next state legislature.

After the state views were made known, the Gorton bill was never given serious consideration.

Administration Bill – 1986

The Administration's proposed highway bill was submitted to the Congress on February 5, 1986. It contained extensive amendments to the Highway Beautification Act. These included:

• The Act would apply to rural areas only.
• Signs in commercial and industrial areas would be allowed only in areas actually used for commercial and industrial purposes. Size, lighting and spacing standards were not required.
• Tourist-oriented directional signs (TODS) would be allowed under state standards on highway rights of way. If a TODS applicant for a permit also owned nonconforming signs, one billboard was to be removed without compensation before receiving a permit for one TODS.
• Nonconforming signs on the Interstate system were to be removed in five years.
• The DOT Secretary could withhold highway approvals for failure to comply.
• The payment of just compensation was optional by the state. Federal funds would come from the state's highway apportionment.
• Bonus payments would be discontinued. Bonus states would be required to continue controls or pay back bonus payments already received.

The Administration Bill was never accorded serious consideration in Congress but did precipitate extensive action on the outdoor advertising issue in 1986.

The Stafford Bill, S.2405 - 1986

The Senate highway bill, S.2405, was introduced by Sen. Symms and five cosponsors on May 6, 1986. At the time of its introduction, it contained no highway beautification amendments.

On July 22, 1986, the Senate Committee on Environment and Public Works met to mark up the highway bill. At that time, Sen. Stafford, joined by Sens. Bentsen (TX) and Moynihan (NY), offered amendments to the Highway Beautification Act which included:

• Elimination of the mandatory requirement for the payment of just compensation. State and local governments could use their police power to remove lawfully erected signs.
• Prohibition of new signs to be erected after July 1, 1986, or the effective date of the state's compliance law.
• Prohibition of all vegetation control on the right of way for the purpose of sign visibility
• Requirement of an updated inventory of existing signs.
• Requirement for the prompt removal of illegal signs and those billboards which had been paid for.
• Prohibition of sign maintenance which would improve the visibility or useful life. Prohibition of the use of materials from a purchased sign in building a new sign.
• Requirement of warning labels, if required on other ads.
• Making the penalty discretionary, up to 5 percent of the state's highway funding apportionment.

During mark up, there was considerable discussion on the need for signs in rural areas for directional purposes. It was apparent that a consensus would not be reached, and the committee recessed.

On the following day, July 23, 1986, a new section was added by Sen. Stafford which provided that the Secretary shall not require any further removals of nonconforming signs. After virtually no discussion, a vote was taken, and the Stafford amendment was approved, nine to four. Those voting against the amendment were Sens. Symms (ID), Abdnor (SD), Burdick (ND), and Simpson (WY).

The Shaw Bill, HR 3129 – 1986

On August 6, 1986, during the floor debate on the House highway bill, HR3129, Rep. Clay Shaw (R-FL) offered an amendment to the Highway Beautification Act. Rep. Shaw had offered a similar amendment earlier, which had been rejected by the House Committee on Public Works and Transportation. The Shaw amendment, which was very similar to the Administration bill, provided:

The Act would apply to rural areas only.

• Signs in commercial and industrial areas would be allowed only in areas actually used primarily for commercial and industrial purposes with DOT definition for "actual use." Size, lighting and spacing standards were not required.
• Tourist-oriented directional signs (TODS) would be allowed under state standards on highway rights of way. The Secretary would define TODS and approve areas for placement. If an applicant for a TODS permit also owns nonconforming signs, one such sign was to removed with compensation before receiving a permit for a TODS.
• Vegetation control would be prohibited.
• Nonconforming signs would be removed by the end of 1991.
• Illegal signs would be removed within 90 days.
• The DOT Secretary could withhold approvals for failure to comply.
• Just compensation would be optional for states. Federal funds were made available from a state's highway funds apportionment.
• Bonus payments would be discontinued. Bonus states would be required to continue controls or payback bonus payments already received.

On August 7, 1986, Rep. Bud Shuster (R-PA) offered a substitute to the Shaw amendment. After considerable debate, the Shuster substitute was accepted by a vote of 251 to 159.

Shuster Substitute, HR 3129 – 1986

The approved Shuster substitute provided for:

• A change in the compliance penalty to a sliding scale of fiveto 10 percent. The DOT'S authority to suspend a penalty was removed.
• Requirement of an annual state inventory or permit system to identify unlawful signs.
• Requirement that "illegal signs" be removed within 90 days.
• Prohibition of vegetation control, except under standards set by Secretary; a sign became unlawful if an owner was proven to illegally cut for a sign's visibility. Prohibition on sign modification to improve visibility or useful life; routine maintenance permitted.
• Except for new replacement signs, no new signs could be erected in commercial and industrial areas after January 1, 1987. The number of signs in commercial and industrial areas in the state was frozen as of January 1, 1987. Subject to state law, existing lawful signs could be moved to new locations in commercial and industrial areas. For this purpose, unzoned commercial or industrial areas would only be recognized if established prior to 1/1/87. Just compensation was not required for signs erected after 1/1/87 and before a state complied with Federal Law.
• The Secretary would be precluded from requiring a state to remove lawfully erected nonconforming signs, but the states would not be precluded from such action.
• Mandatory compensation would be retained with funding from the state's construction or 4R funds. The federal share was 75 percent or less, as agreed.
• Prohibition on the use of sign materials acquired by a state from being reused for new signs.
• Clarification of control on public lands but exempted certain lands held in trust for Indian nations.
• Elimination of the provision that Federal funds must be available before signs could be required to be removed.

Following passage, the highway bilk and Shuster Substitute went to a House-Senate conference. Although the Conferees met a number of times, they could not agree on a final highway bill by the time Congress adjourned. The highway beautification amendments were not part of the controversy preventing agreement by the Conferees.

1987 Amendments, HR 2 & Stafford, S.185/387-1987

H.R. 2

Failure by the 99th Congress to pass a highway bill put tremendous pressure on the100th Congress to do so because of the need for funding the nation's highways. The House responded by passing of HR 2 on January 21, 1987, which was virtually identical to the 1986 bill, HR 3129. There were no committee hearings, and little or no debate. The Highway Beautification Act amendments were the same as those in HR3129; only the dates were changed.

Stafford, S.185/387-1987

The Senate Highway Bill, S.185, contained no Highway Beautification amendments when introduced.

Mark up of S.185 in the Senate Committee took place on January 21, 1987, at which time Sen. Stafford offered an amendment to the Highway Beautification Act. The amendment was virtually identical to that contained in the 1986 Senate bill. After approximately one hour of debate, the amendment was voted on, with an eight-to-eight result. The tie prevented reporting the amendment to the Senate floor.

On February 3, 1987, during floor debate of the Senate bill, now S.387, Sen. Stafford offered another amendment, co-sponsored by Sens. Bentsen (TX), Chafee (RI), Evans (WA), Moynihan (NY)and Wilson (CA). The amendment was similar to the 1986 Senate bill, with several major changes. These were:

Moratorium on new signs in rural areas. New boards up to 75 square feet would be allowed only in urban areas.

A ban on new boards within 2,500 feet of National Parks, etc.

Compensation required for removals required under Highway Beautification Act provisions; not required for other removals by localities.

After one hour of debate, Sen. Wendell Ford (KY) moved to table the amendment, and the Senate agreed, 57 to 40. This resulted in no Highway Beautification Act amendments in the Senate bill.

The House - Senate Conferees met on March 10, 1987, and decided not to amend the Highway Beautification Act, and all such amendments passed by the House of Representatives were dropped from the highway bill.

Lewis/Shaw Amendments, HR 3389 – 1989

On October 24, 1989, Reps. John Lewis (D-GA) and Clay Shaw (R-FL) introduced the most sweeping anti-billboard legislation ever proposed. The proposal, HR3389, the Billboard Control Act of 1989, would:

• Place a moratorium on the construction of new billboards beginning in 1995.
• Allow states and localities to remove signs without paying "cash" compensation.
• Prohibit the cutting or trimming of vegetation and trees to improve the visibility of billboards.
• Require annual sign inventories by the states and a report by the US Department of Transportation.
• Provide for the removal of all nonconforming billboards in existence after September 1, 1995.

No votes were taken on the proposal.

Chafee Amendment, S.2500 – 1990

The outdoor advertising program faced continued attack during the 2nd session of the 101st Congress. Sen. Chafee (R-RI), along with seven co-sponsors, introduced the "Visual Pollution Control Act of 1990," S.2500. The proposal included provisions to:

• Eliminate the mandatory 10 percent penalty and replace it with a discretionary penalty.
• Require an annual inventory by the states.
• Mandate the removal of illegal and nonconforming signs with 90 days of enactment.
• Prohibit vegetation control in front of billboards by states.
• Ban modifications of nonconforming signs.
• Ban new signs after Oct. 1, 1990.
• Make payment for sign removal discretionary by the states.
• Provide funding from the Highway Trust Fund for sign removal.

In November, 1990, the Senate Environment and Public Works Committee voted 11-4 in favor of the Chafee amendment. However, Congress adjourned before any other action was taken.

Administration Amendments – 1991

On February 13, 1991, Secretary of Transportation Samuel Skinner submitted to Congress the Administration's highway and transportation bill.

Within Title 1 of the proposed Federal-Aid Highway Act of 1991, section 116, Outdoor Advertising, and Section 109, General Provisions, amended outdoor advertising control provisions. Significant changes included:

• Elimination of the just compensation provision of the Highway Beautification Act. States could be reimbursed for sign acquisition costs on controlled, rural highways only. Cash compensation would come from the Highway Trust Fund.
• Requirement for a sign inventory in rural areas of effective control. New highways for billboard controls to be added.
• Ban on new signs (i.e. a permanent freeze) on rural, controlled highways. No exception made for signs in commercial and industrial areas. Nonconforming signs were not required to be removed in rural areas. No sign control within urbanized areas.
• The mandatory 10 percent penalty was changed to a discretionary penalty on a project basis.
• Nonconforming signs could not be changed to improve visibility or prolong useful life. Modification of nonconforming signs must adhere to new Federal requirements.
• Illegal or acquired signs must be removed within 90 days.

House and Senate Amendments – 1991

The Visual Pollution Control Act of 1991 was identical to the 1990 Senate proposal, S. 2500. On March 7, 1991, Reps. Clay Shaw (R-FL) and John Lewis (D - GA) reintroduced HR 1344 to conform to the Senate version. A companion bill (S.593 subsequently changed to S.965) was introduced in the Senate by Sen. John Chafee (R - RI). The bills had 28 co-sponsors in the House and 10 Senate co-sponsors when introduced, along with 40 organizations supporting the anti-billboard amendments.

The Shaw/Lewis and Chafee proposal would:

• Place a moratorium on new billboard construction along Federal-Aid Primary and Interstate highways.
• Prohibit any vegetation control in front of billboards.
• Eliminate mandatory just compensation for a lawfully erected sign when removed by a state or locality.

At the Senate Committee mark up of the Surface Transportation Efficiency Act of 1991 (S.965) on May 22, 1991, the billboard amendment by Sen. Chafee was approved by a vote of 11-4. On June 3, 1991, Chairman Burdick (D-ND), reported the Surface Transportation Efficiency Act of 1991 out of committee. The bill number was changed to S.1204 and Section 137, Visual Pollution Control, was the amended Chafee proposal.

Reid Amendment to S.1204

On June 12, 1991, the Senate voted on a floor amendment offered by Sen. Harry Reid (D-NV) to strike section 137 (the Chafee language) in its entirety. The vote was over the merits of just compensation for billboards. The Senate's favorable vote by a margin of 60 - 39 supported Sen. Reid and the outdoor advertising industry.

The Senate passed its entire bill (S. 1204) on June 19. However, the House version of the Surface Transportation Act was pulled from a vote on August 1, after becoming entangled over a 5 cent per gallon gasoline increase.

Andrews Amendment, HR 2950

Rep. Andrews (D-TX) drafted an amendment to HR 2950 which would have required:

• An "actual use" requirement to allow billboards in all zoned commercial and industrial areas as well as eliminating the unzoned area designations.
• No new sign within 2,500 feet of a National Park or historic property
• No tree or vegetation removal in front of billboards.
• Removing the mandatory penalty and substituting a discretionary penalty of up to 10 percent

The amendment was never brought before the House Public Works Committee, nor the entire Rouse. Instead, the House brought a bill to the Conference Committee without any change to outdoor advertising controls.

Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA)

The Conference Committee debated the highway and transportation issues and reached an agreement on November 27, 1991, on major changes to the transportation program in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). The billboard issue was debated by the House-Senate conferees and punitive billboard measures were kept out of the bill. HBA amendments agreed to were:

• Funding: If a state elects to do so, it may use its Highway Trust Funds as compensation for the removal of nonconforming signs. The Federal share is 80 percent. These funds will come from the same money source that funds highway maintenance and bridge repairs or from a new category of funding called Surface Transportation Funds. Billboard control is an eligible item under the Transportation Enhancements program.
• Illegal Signs: Owners of an illegal sign (unlawfully erected) must remove the sign 90 days after enactment of the bill or the State shall remove it and assess all costs to the owner.
• Control Routes: The Highway Beautification Act compliance applies to all signs on highways designated as the "Federal-aid primary" system as of June 1, 1991, and on any highway which is designated as part of the new National Highway System (NHS). Therefore, HBA controls will apply to the current 306,000 miles or Interstate and Federal-aid primary highways and additional miles or newly designated NHS highways.
• State Compliance: Amendments made by the Amendment shall not effect the status or the validity of any existing state compliance law or regulation. States will not have to automatically submit their HBA laws for federal revisions.
• Scenic Byways: Prohibits the erection of new billboards on state designated scenic byways which are part of the interstate or primary system. Control of signs on such highways shall be in accordance with HBA control provisions.

Scenic Byways Advisory Committee

 

A 17-member Advisory Committee was established to assist the Secretary of Transportation in the establishment of a National Scenic Byways Program and All American Roads program. The Advisory Committee was required to submit a report to the Secretary no later than 18 months after ISTEA's enactment. The outdoor advertising industry was made a member of the Scenic Byways Advisory Committee. Other scenic byways and alternative sign issues included:

• An Interim Scenic ByWays Program was also established and FHWA given authority to make grants to the states. Ten percent of these grants (up to $1 million in 1992, 1993, and 1994) were for sign removal under HBA controls. The Federal share for payment was to be 80 percent.
• Tourist Oriented Directional Signs: Directed the Secretary of Transportation to encourage the states to provide for equitable participation in the use of TODS and logos and included a one year study.

Nonconforming Sign Amendment- in the Dire Emergency Supplemental Appropriations Act of 1992

The ink had hardly been dry on the December 18, 1991 ISTEA legislation before a DOT/FHWA interpretation of the new statute required an amendment to the Highway Beautification Act.

In January 1992, FHWA issued guidance to its field offices and the states concerning the new billboard control requirements. On February 20, 1992, the FHWA notified all state Governors that since ISTEA of 1991 made removal of nonconforming signs eligible for federal-aid highway funds, the states must use highway trust funds to remove all remaining nonconforming signs.

On March 6, 1992 the FHWA published a Federal Register Notice calling for the required removal of nonconforming signs within two years or risk losing 10 percent of their federal highway money. The estimated cost to remove 92,000 was $428 million. Each state was to provide an action plan to implement removals by June 18, 1992. In addition, illegal sign removal action and the billboard ban on scenic byways was included for comments.

Letters from key congressional leadership, Governors and other state officials, and billboard users protested this unilateral action by FHWA.

On May 8, 1992, the FHWA issued in the Federal Register a Notice of Proposed Rulemaking (NPRM) asking for comment on four sign removal options, but recommended proposed regulations that states remove all nonconforming signs by March 1994. The comment period was to expire on July 8, 1992.

On May 20, 1992, Sen. Steve Symms (R-ID) offered amendment No. 1849 to an emergency urban aid package. The Symms proposal was approved by voice vote in the Senate that same evening. The technical amendment to section 131

(n) of the HBA provided that Federal funds for the removal of legal, nonconforming signs was at the states' discretion.

The amendment was uncontested. During the debate on the amendment, the American Road & Transportation Builders Association (ARBTA) provided a detailed analysis of the economic impact on jobs if billboards had to be removed and the resulting number of highway miles that would not be rehabilitated due to funds being used to remove billboards. Also, the travel and tourism industry voiced concern about the loss of advertising opportunities for their members, many dependent upon billboards. Rep, Bud Shuster (R-PA) offered a floor colloquy on June 18, which spelled out the House-Senate conferees intent.

On June 22, 1992, the President signed the Dire Emergency Supplemental Appropriations Act of 1992 (PL 102-302). The outdoor advertising amendment unequivocally negated the FHWA rulemaking notice of May 8, 1992, which made mandatory the removal of nonconforming signs.

FHWA then advised their field offices that there was no risk of penalty if a state chose not to acquire nonconforming signs. On July 16, 1992, the FHWA published in the Federal Register a deletion of all references to nonconforming sign removals. The illegal sign removal matter and the billboard ban on scenic byways rulemaking were not affected.

Throughout the entire rulemaking process, over 3,200 letters were submitted to the FHWA Docket. Nearly 90 percent were in support of the outdoor advertising industry position.

Scenic Byways National Advisory Committee of 1993 and 1995 Scenic Byways Amendment

Similar to the nonconforming sign removal issue, one of the first actions taken by the Federal Highway Administration after enactment of ISTEA (December 18, 1991) was the issuance of a March 1992, advisory that construed the provisions of subsection (s) to prohibit the construction of all new billboards on any state-designated scenic byways. The FHWA prohibition included new billboards on any state-designated scenic byways. The FHWA prohibition included new billboards within commercial and industrial areas along scenic byway routes.

The billboard ban issue became a contentious issue during the 1993 National Scenic Byways Commission deliberations, primarily due to efforts by anti-billboard factions to insert the FHWA's rulemaking policy language into the Commission's Final Report that a mandatory ban on new billboards was required. Votes on the billboard ban issue reflected the divided nature of the Commission membership between government officials, business and tourism interests, and conservationists/preservationists. Members of the Advisory Committee were:

Planners Historic Preservation
Paul A. Bergmann David A. Doheny (Appointee)
Executive Director Vice-President & General Counsel
Louisville & Jefferson County Peter Brink (Representing)
Planning Commission National Trust for Historic Preservation
Louisville, KY Washington, DC

Highway Users Outdoor Advertising Association of America
Lester P. Lamm Nancy J. Fletcher
President Chairman
Highway Users Federation Outdoor Advertising Association of America
Washington, DC Washington, DC

Conservationists Scenic Preservation
Hal Hiemstra Sally G. Oldham
Vice President of Operations President
Roads and Trails Conservancy Scenic America
Washington, DC Washington, DC

Tourist Industry Federal Agencies
Homer Staves National Park Service
Vice President, Consumer Service Dennis GaIvin
Campground of America Associate Director
Billings, MT Planning/Development
Washington, DC

Local Highway & Transportation Officials Travel and Tourism
William Block Edward Shedlick
Morrison County Board of Commission Director Public Sector Relations
Little Falls, MN Travel & Tourism
Department of Commerce
Washington, DC

State Highway & Transportation Officials Forest Service
Dwight M. Bower George M. Leonard
Deputy Director Associate Chief
Colorado DOT Department of Agriculture
Denver, CO Washington, DC

Recreational Users Bureau of Indian Affairs
David Flitner Richard Geiger
BXN, Inc. Chief, Division of Transportation
Denver, CO Washington, DC

Motoring Public Bureau of Land Management
Daryl Wyland Carson Culp
Senior Vice President Director, Bureau of Land Management
Public & Government Relations, AAA Washington, DC

Federal Highway Administration
Kevin E. Heanue
Director, Office of Planning

The Committee's charge was to recommend to the Secretary of Transportation those minimum criteria by which state and federal agencies would designate and operate certain outstanding scenic byways as National Scenic Byways and All American Roads. The Commission's report focused on the identification and development of scenic byways that offer scenic, historic, natural, cultural, recreational, or archaeological values yet are a part of a voluntary, "Bottoms-up'' grassroots effort, not a federal mandate.

The Committee's Final Report, issued in 1993, provided a program structure, designation process and criteria, funding recommendations, de-designation procedures, signing options, design standards, safety, and outdoor advertising control recommendations.

The outdoor advertising issue was the most difficult and contentious for the Committee to resolve. There was extensive debate over the interpretation of the existing laws as well as recommendations for a future national program. Formal votes were taken on several issues (with very close results) because consensus could be reached.

A majority of the committee did not support a recommendation that the Secretary of Transportation require a demonstrated commitment not to add new billboards, but accepting those which were in place. The Committee then agreed that its vote should not be construed as meaning it favored new billboards. This motion referred to a prohibition of billboard construction on routes other than Interstate and federal-aid primary roads designed as national scenic byways.

A majority of the Committee did recommend that the Secretary of Transportation encourage the states to extend billboard controls to limit new billboard construction on the national designated routes, regardless of road system. This latter point was added by FHWA staff because of disagreement over the interpretation of ISTEA language.

A majority of the Committee recommended that corridor management plans for All-American Roads require states to effectively ban new billboards except in communities with over 25,000 population and to encourage the use of alternative business identification signs such as TODS and logos.

ISTEA and HBA controls would apply to a scenic byway designated inaccordance with the nomination process as a national scenic byway or All-American Road on the Interstate or federal-aid primary highway even it was not designated pursuant to state law as a state scenic byway.

All votes were summarized in the Final Report along with Addendum Statements filed by both billboard opponents and OAAA. The OAAA's position was that the FHWA's preemption policy was wrong as a matter of law because it conflicted directly with basic structure of the Highway Beautification Act that expressly reserves authority to the states for control of outdoor advertising incommercial and industrial areas. As a practical matter, the FHWA policy was also ill-conceived because it forced the states against their will to extend scenic byways regulation to inherently non-scenic areas. Economic development along scenic byways was compromised by impairing the ability of travel and tourism businesses within those areas to advertise themselves to the users of the highway.

OnJune 14, 1993, FHWA reversed it earlier policy by issuing a "segmentation" policy that recognized state discretion to permit new billboards within commercial and industrial segments of state scenic byways. However, the FHWA policy was implemented in a sporadic and vague manner, resulting in broad confusion among the states concerning the scope of FHWA's authority in this area.

In late 1993, an amendment to clarify the scenic byways "segmentation" issue was included in the House Committee version of the HAZMAT bill. However, all amendments considered non-germane to the bill were dropped prior to the Floor vote.

1995 Amendment to Scenic Byways Controls:

In 1995, the National Highway System Designation was under consideration by both the House and Senate. This legislation was required by ISTEA. The House of Representatives approved an amendment to subsection (s) of the HBA to clarify that the federal ban on new billboards on scenic byways did not restrict the authority of a state with respect to commercial and industrial areas along a scenic byway or roads designated pursuant to the original ISTEA language on the national scenic byways program.

The Senate bill contained no comparable provision and, after much debate by the Conference Committee, A substitute was agreed to which codified the FHWA'S June 14, 1993, policy implementation. The Conference Substitute language stated:

In designating a scenic byway for purposes of section 131(s) and section 1047 of the Intermodal Surface Transportation Efficiency Act of 1991, a state may exclude from such designation any segment of a highway that is inconsistent with the state's criteria for designating scenic byways. The exclusion of a highway segment must have a reasonable basis. The secretary of Transportation has the authority to prevent actions that evade Federal Requirements.

In effect, the final language codifies current FHWA policy to allow segmentation of non-scenic areas along a state designated or federally approved scenic byway so long as the state's determination is reasonable. Trail blazer signs and mapping of excluded segments is not prohibited.

Managerial language to accompany the Conference Substitute was printed in the Congressional Record, pages H 13324-25 on November 18, 1995, by Rep. Bud Shuster. The National Highway System Designation Act of 1995 (P.L. 104-
59) was enacted into law on November 28, 1995.

Senator Jeffords Amendment to S. 1173 (ISTEA Reauthorization of 1997)

On October 23, 1997, Sen. Jeffords filed seven amendments to S. 1173 the reauthorization of the highway and transportation program. The amendments did not come to a vote on the Senate Floor due to other pressing business. The amendments were:

Amendment 1403
Placed a cap on the total number of billboards

Amendment 1405
Prohibited state vegetation control programs

Amendment 1406
Allowed a locality to remove legal signs with just compensation for signs erected after enactment

Amendment 1407
Required each state to conduct an annual inventory that catalogs every illegal, nonconforming and conforming signs along federal-aid controlled highways and scenic byways.

Amendment 1408

• Prohibited new billboards in unzoned commercial and industrial areas
• Allowed a locality to remove signs on federal-aid highways without payment of just compensation
• Placed a cap on the total number of signs
• Required an annual inventory
• Prohibited state vegetation control programs

Amendment 1404
Prohibited new billboards in unzoned commercial and industrial areas

Amendment 1409

• Allowed a locality to remove signs on federal-aid highways without just compensation
• Required an annual inventory
• Prohibited state vegetation control programs

TEA 21-1998
No amendments to the outdoor advertisement control program were offered during debate on the Transportation Equity Act for the 21st (TEA 21), a six-year reauthorization of the highway, safety and transit program.

Billboard control remains an eligible item under the Transportation Enhancements Program as established under ISTEA of 1991 and continued by TEA 21 in 1998. The federal share is 80 percent.

Recent Activity

On August 10, 2005, President Bush signed SAFE-TEA-LU (Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users at a ceremony in Illinois; it is scheduled to expire on September 30, 2009. No amendments to the outdoor advertising control program were offered. This legislation lifted the cap on calculating transit advertising and concession revenue as “local match” funds to qualify for federal funding.

In 2008, Congress approved a technical corrections bill to fix errors in the Highway Bill signed in 2005. Conferees on the corrections bill considered but dropped a non-industry proposal to allow corporate floral logos in the right of way.

In 2006 and 2007, Congress considered amendments on appropriations bills to affirm state authority to allow rebuilding of damaged billboards after hurricane Katrina. In 2006, a House-Senate conference on an Energy and Water Development appropriations bill deleted a storm-damage amendment. In 2007, a similar measure was stripped from an emergency appropriations bill on the Senate floor under a point of order.

In early 2006, FHWA announced a formal “conflict assessment” process on the Highway Beautification Act of 1965. A contract was signed with the U.S. Institute for Environmental Conflict Resolution (ECR), Tucson, AZ, to conduct a nationwide assessment in order for the agency to better understand the nature and complexity of the conflicts that have developed in the wake of the HBA and to determine what paths toward resolution are available.

Seven cities were selected as hosts for stakeholder interviews, focus groups and mini-public “drop-in” meetings. These cities were Sacramento, CA: Cleveland, OH; Austin, TX: Atlanta, GA; Salt Lake City, UT; Kansas City, MO; and Philadelphia, PA. The meetings were scheduled from mid-August to mid-November, 2006.

Through over 100 personal interviews, seven focus groups and public meetings in the seven cities along with over 1,800 comments to the Federal Register, the Assessors gathered unique perspectives about the outdoor advertising control program. The Assessors reached several fundamental conclusions:

• Conflict about outdoor advertising controls is substantive, organizational and attitudinal
• Key issues perceived as both important to the stakeholders and having reasonable potential for agreement were:
• The use of new technology
• Abuses of signage in commercial and industrial areas
• Future of nonconforming signs
• Control of vegetation in the right of way around billboards
• Inconsistent regulation and enforcement
• FHWA’s outdoor advertising control organization warrants attention – and changes, if any, should be addressed through a forum that includes state regulators
• A well-structured collaborative process holds promise to address substantive issues. However conditions for policy dialogue must be supported by FHWA leadership and endorsement along with good faith participation by stakeholders. The Assessors recommended selecting a limited number of issues to work on and organize a time period to resolve such issues.
• The final assessment report was published in the Federal Register in February, 2007.
• One of the first outcomes from the assessment was a policy memorandum released by FHWA about new technology. On September 25, 2007, the agency issued a policy memorandum titled: “Information: Guidance on Off-Premise Changeable Message Signs.” This memorandum provided clarification to an earlier 1996 FHWA memorandum concerning changeable message signs and set policy guidance and standards for states to allow off-premise changeable message signs (i.e., digital billboards).

A Summary of the Highway Beautification Act of 1965

As amended:

• The Highway Beautification Act of 1965, as amended, has jurisdiction over billboards on Interstate and federal-aid primary highways in existence as of June 1, 1991, and those highways added to the National Highway System.
• Billboards are restricted to commercial and industrial areas with size, lighting and spacing provisions adopted by states and localities.
• No new billboards can be erected along state designated scenic byway portions of the Interstate and federal-aid primary highways, except for “segmented" areas.
• The HBA requires payment of just compensation for the removal of all lawfully erected signs.
• Logo signs and tourist-oriented directional signs located in the highway right-of-way are allowed under the HBA subject to explicit restrictions.
• Illegal signs (i.e., unlawfully erected) are to be removed expeditiously by the sign owner and/or the state.
• States not complying with the provisions of the HBA are subject to a 10 percent reduction in their highway allocations.
• States have the discretion to remove legal nonconforming signs along highways; there is no federal mandate to remove billboards.
• States have the authority to enact more restrictive provisions to control signs.

Control Mileage Under HBA of 1965

The Federal Highway Administration reports the following number of miles subject to outdoor advertising controls:

• Total Interstate, Federal-aid primary highways (as if June 1, 1991) and the new National Highway system is 306,000 miles.
• Outdoor advertising controls are established by rural and urban area boundaries.
• The urban area boundary definition is established in the statute to be 5,000 or more in population.

Outdoor Advertising Statistics

The Federal Highway Administration (FHWA) in its June, 1997 Nationwide Statistical Report on the outdoor advertising control program that there are nearly 875,000 fewer signs along controlled highways since enactment of the Highway Beautification Act in 1965.

FHWA statistics (as of 9/30/96) show:

• Over 127,000 legal nonconforming compensable signs have been removed
• Fewer than 74,000 legal nonconforming signs remain
• Nearly 750,000 illegal signs removed by owners or the government, or 98 percent of all illegal signs.
• Approximately 14,600 illegal signs remain to be removed.

TITLE 23, UNITED STATES CODE, HIGHWAYS

Section 131.

Control of outdoor advertising (a) The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty. (b) Federal-aid highway funds apportioned on or after January 1, 1968, to any State which the Secretary determines has not made provision for effective control of the erection and maintenance along the Interstate System and the primary system of outdoor advertising signs, displays, and devices which are within six hundred and sixty feet of the nearest edge of the right-of-way and visible from the main traveled way of the system, and Federal-aid highway funds apportioned on or after January 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, to any State which the Secretary determines has not made provision for effective control of the erection and maintenance along the Interstate System and the primary system of those additional outdoor advertising signs, displays, and devices which are more than six hundred and sixty feet off the nearest edge of the right-of-way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall be reduced by amounts equal to 10 per centum of the amounts which would otherwise be apportioned to such State under section 104 of this title, until such time as such State shall provide for such effective control. Any amount which is withheld from apportionment to any State hereunder shall be reapportioned to the other States. Whenever he determines it to be in the public interest, the Secretary may suspend, for such periods as he deems necessary, the application of this subsection to a State. (c) Effective control means that such signs, displays, or devices after January 1, 1968, if located within six hundred and sixty feet of the right-of-way and, on or after July 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, if located beyond six hundred and sixty feet of the right-of-way located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section, (2) signs, displays, and devices advertising the sale or lease of property upon which they are located, (3) signs, displays, and devices, including those which may be changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are located, (4) signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, or historic or artistic significance the preservation of which would be consistent with the purposes of this section, and (5) signs, displays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection, the term ``free coffee'' shall include coffee for which a donation may be made, but is not required. (d) In order to promote the reasonable, orderly and effective display of outdoor advertising while remaining consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing, consistent with customary use is to be determined by agreement between the several States and the Secretary, may be erected and maintained within six hundred and sixty feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and primary systems which are zoned industrial or commercial under authority of State law, or in unzoned commercial or industrial areas as may be determined by agreement between the several States and the Secretary. The States shall have full authority under their own zoning laws to zone areas for commercial or industrial purposes, and the actions of the States in this regard will be accepted for the purposes of this Act. Whenever a bona fide State, county, or local zoning authority has made a determination of customary use, such determination will be accepted in lieu of controls by agreement in the zoned commercial and industrial areas within the geographical jurisdiction of such authority. Nothing in this subsection shall apply to signs, displays, and devices referred to in clauses (2) and (3) of subsection (c) of this section. (e) Any sign, display, or device lawfully in existence along the Interstate System or the Federal-aid primary system on September 1, 1965, which does not conform to this section shall not be required to be removed until July 1, 1970. Any other sign, display, or device lawfully erected which does not conform to this section shall not be required to be removed until the end of the fifth year after it becomes nonconforming. (f) The Secretary shall, in consultation with the States, provide within the rights-of-way for areas at appropriate distances from interchanges on the Interstate System, on which signs, displays, and devices giving specific information in the interest of the traveling public may be erected and maintained. The Secretary may also, in consultation with the States, provide within the rights-of-way of the primary system for areas in which signs, displays, and devices giving specific information in the interest of the traveling public may be erected and maintained. Such signs shall conform to national standards to be promulgated by the Secretary. (g) Just compensation shall be paid upon the removal of any outdoor advertising sign, display, or device lawfully erected under State law and not permitted under subsection (c) of this section, whether or not removed pursuant to or because of this section. The Federal share of such compensation shall be 75 per centum. Such compensation shall be paid for the following:(A) The taking from the owner of such sign, display, or device of all right, title, leasehold, and interest in such sign, display, or device; and(B) The taking from the owner of the real property on which the sign, display, or device is located, of the right to erect and maintain such signs, displays, and devices thereon. (h) All public lands or reservations of the United States which are adjacent to any portion of the Interstate System and the primary system shall be controlled in accordance with the provisions of this section and the national standards promulgated by the Secretary. (i) In order to provide information in the specific interest of the traveling public, the State transportation departments are authorized to maintain maps and to permit information directories and advertising pamphlets to be made available at safety rest areas. Subject to the approval of the Secretary, a State may also establish information centers at safety rest areas and other travel information systems within the rights-of-way for the purpose of informing the public of places of interest within the State and providing such other information as a State may consider desirable. The Federal share of the cost of establishing such an information center or travel information system shall be that which is provided in section 120 for a highway project on that Federal-aid system to be served by such center or system. (j) Any State transportation department which has, under this section as in effect on June 30, 1965, entered into an agreement with the Secretary to control the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System shall be entitled to receive the bonus payments as set forth in the agreement, but no such State transportation department shall be entitled to such payments unless the State maintains the control required under such agreement: Provided, That permission by a State to erect and maintain information displays which may be changed at reasonable intervals by electronic process or remote control and which provide public service information or advertise activities conducted on the property on which they are located shall not be considered a breach of such agreement or the control required thereunder. Such payments shall be paid only from appropriations made to carry out this section. The provisions of this subsection shall not be construed to exempt any State from controlling outdoor advertising as otherwise provided in this section. (k) Subject to compliance with subsection (g) of this section for the payment of just compensation, nothing in this section shall prohibit a State from establishing standards imposing stricter limitations with respect to signs, displays, and devices on the Federal-aid highway systems than those established under this section. (l) Not less than sixty days before making a final determination to withhold funds from a State under subsection (b) of this section, or to do so under subsection (b) of section 136, or with respect to failing to agree as to the size, lighting, and spacing of signs, displays, and devices or as to unzoned commercial or industrial areas in which signs, displays, and devices may be erected and maintained under subsection (d) of this section, or with respect to failure to approve under subsection (g) of section 136, the Secretary shall give written notice to the State of his proposed determination and a statement of the reasons therefor, and during such period shall give the State an opportunity for a hearing on such determination. Following such hearing the Secretary shall issue a written order setting forth his final determination and shall furnish a copy of such order to the State. Within forty-five days of receipt of such order, the State may appeal such order to any United States district court for such State, and upon the filing of such appeal such order shall be stayed until final judgment has been entered on such appeal. Summons may be served at any place in the United States. The court shall have jurisdiction to affirm the determination of the Secretary or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the United States court of appeals for the circuit in which the State is located and to the Supreme Court of the United States upon certiorari or certification as provided in title 28, United States Code, section 1254. If any part of an apportionment to a State is withheld by the Secretary under subsection (b) of this section or subsection (b) of section 136, the amount so withheld shall not be reapportioned to the other States as long as a suit brought by such State under this subsection is pending. Such amount shall remain available for apportionment in accordance with the final judgment and this subsection. Funds withheld from apportionment and subsequently apportioned or reapportioned under this section shall be available for expenditure for three full fiscal years after the date of such apportionment or reapportionment as the case may be. (m) There is authorized to be appropriated to carry out the provisions of this section, out of any money in the Treasury not otherwise appropriated, not to exceed $20,000,000 for the fiscal year ending June 30, 1966, not to exceed $20,000,000 for the fiscal year ending June 30, 1967, not to exceed $2,000,000 for the fiscal year ending June 30, 1970, not to exceed $27,000,000 for the fiscal year ending June 30, 1971, not to exceed $20,500,000 for the fiscal year ending June 30, 1972, and not to exceed $50,000,000 for the fiscal year ending June 30, 1973. The provisions of this chapter relating to the obligation, period of availability and expenditure of Federal-aid primary highway funds shall apply to the funds authorized to be appropriated to carry out this section after June 30, 1967. Subject to approval by the Secretary in accordance with the program of projects approval process of section 105,\1\ a State may use any funds apportioned to it under section 104 of this title for removal of any sign, display, or device lawfully erected which does not conform to this section. (n) No sign, display, or device shall be required to be removed under this section if the Federal share of the just compensation to be paid upon removal of such sign, display, or device is not available to make such payment. Funds apportioned to a State under section 104 of this title shall not be treated for purposes of the preceding sentence as being available to the State for making such a payment except to the extent that the State, in its discretion, expends such funds for such a payment. (o) The Secretary may approve the request of a State to permit retention in specific areas defined by such State of directional signs, displays, and devices lawfully erected under State law in force at the time of their erection which do not conform to the requirements of subsection (c), where such signs, displays, and devices are in existence on the date of enactment of this subsection and where the State demonstrates that such signs, displays, and devices (1) provide directional information about goods and services in the interest of the traveling public, and (2) are such that removal would work a substantial economic hardship in such defined area. (p) In the case of any sign, display, or device required to be removed under this section prior to the date of enactment of the Federal-Aid Highway Act of 1974, which sign, display, or device was after its removal lawfully relocated and which as a result of the amendments made to this section by such Act is required to be removed, the United States shall pay 100 per centum of the just compensation for such removal (including all relocation costs). (q)(1) During the implementation of State laws enacted to comply with this section, the Secretary shall encourage and assist the States to develop sign controls and programs which will assure that necessary directional information about facilities providing goods and services in the interest of the traveling public will continue to be available to motorists. To this end the Secretary shall restudy and revise as appropriate existing standards for directional signs authorized under subsections 131(c)(1) and 131(f) to develop signs which are functional and esthetically compatible with their surroundings. He shall employ the resources of other Federal departments and agencies, including the National Endowment for the Arts, and employ maximum participation of private industry in the development of standards and systems of signs developed for those purposes. (2) Among other things the Secretary shall encourage States to adopt programs to assure that removal of signs providing necessary directional information, which also were providing directional information on June 1, 1972, about facilities in the interest of the traveling public, be deferred until all other nonconforming signs are removed. (r) Removal of Illegal Signs.--(1) By owners.--Any sign, display, or device along the Interstate System or the Federal-aid primary system which was not lawfully erected, shall be removed by the owner of such sign, display, or device not later than the 90th day following the effective date of this subsection.(2) By states.--If any owner does not remove a sign, display, or device in accordance with paragraph (1), the State within the borders of which the sign, display, or device is located shall remove the sign, display, or device. The owner of the removed sign, display, or device shall be liable to the State for the costs of such removal. Effective control under this section includes compliance with the first sentence of this paragraph. (s) Scenic Byway Prohibition.--If a State has a scenic byway program, the State may not allow the erection along any highway on the Interstate System or Federal-aid primary system which before, on, or after the effective date of this subsection, is designated as a scenic byway under such program of any sign, display, or device which is not in conformance with subsection (c) of this section. Control of any sign, display, or device on such a highway shall be in accordance with this section. In designating a scenic byway for purposes of this section and section 1047 of the Intermodal Surface Transportation Efficiency Act of 1991, a State may exclude from such designation any segment of a highway that is inconsistent with the State's criteria for designating State scenic byways. Nothing in the preceding sentence shall preclude a State from signing any such excluded segment, including such segment on a map, or carrying out similar activities, solely for purposes of system continuity. (t) Primary System Defined.--For purposes of this section, the terms ``primary system'' and ``Federal-aid primary system'' mean the Federal-aid primary system in existence on June 1, 1991, and any highway which is not on such system but which is on the National Highway System.

PART 750—HIGHWAY BEAUTIFICATION

Subpart A - National Standards for Regulation by States of Outdoor Advertising Adjacent to the Interstate System Under the 1958 Bonus Program

§ 750.101 Purpose.
§ 750.102 Definitions.
§ 750.103 Measurements of distance.
§ 750.104 Signs that may not be permitted in protected areas.
§ 750.105 Signs that may be permitted in protected areas.
§ 750.106 Class 3 and 4 signs within informational sites.
§ 750.107 Class 3 and 4 signs outside informational sites.
§ 750.108 General provisions.
§ 750.109 Exclusions.
§ 750.110 State regulations.

Subpart B—National Standards for Directional and Official Signs

§ 750.151 Purpose.
§ 750.152 Application.
§ 750.153 Definitions.
§ 750.154 Standards for directional signs.
§ 750.155 State standards.

Subpart C [Reserved]

Subpart D—Outdoor Advertising (Acquisition of Rights of Sign and Sign Site Owners)

§ 750.301 Purpose.
§ 750.302 Policy.
§ 750.303 Definitions.
§ 750.304 State policies and procedures.
§ 750.305 Federal participation.
§ 750.306 Documentation for Federal participation.
§ 750.307 FHWA project approval.
§ 750.308 Reports.

Subpart E—Signs Exempt From Removal in Defined Areas

§ 750.501 Purpose.
§ 750.502 Applicability.
§ 750.503 Exemptions.

Subpart F [Reserved]

Subpart G—Outdoor Advertising Control

§ 750.701 Purpose.
§ 750.702 Applicability.
§ 750.703 Definitions.
§ 750.704 Statutory requirements.
§ 750.705 Effective control.
§ 750.706 Sign control in zoned and unzoned commercial and industrial areas.
§ 750.707 Nonconforming signs.
§ 750.708 Acceptance of state zoning.
§ 750.709 On-property or on-premise advertising.
§ 750.710 Landmark signs.
§ 750.711 Structures which have never displayed advertising material.
§ 750.712 Reclassification of signs.
§ 750.713 Bonus provisions.

Source: 38 FR 16044, June 20, 1973, unless otherwise noted.

Subpart A - National Standards for Regulation by States of Outdoor Advertising Adjacent to the Interstate System Under the 1958 Bonus Program

Authority: Sec. 12, Pub. L. 85–381, 72 Stat. 95, as amended; 23 U.S.C. 131; delegation of authority in 49 CFR 1.48(b).

§ 750.101 Purpose.

(a) In section 12 of the Federal-Aid Highway Act of 1958, Pub. L. 85–381, 72 Stat. 95, hereinafter called the act, the Congress declared that:

(1) 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 National System of Interstate and Defense Highways, hereinafter called the Interstate System, it is in the public interest to encourage 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 system.

(2) It is a national policy that the erection and maintenance of outdoor advertising signs, displays, or devices within 660 feet of the edge of the right-of-way and visible from the main-traveled way of all 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 prepared and promulgated by the Secretary of Transportation.

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

[38 FR 16044, June 20, 1973, as amended at 39 FR 28629, Aug. 9, 1974]

§ 750.102 Definitions.

The following terms when used in the standards in this part have the following meanings:

(a) Acquired 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 political 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 nondivided Interstate Highway.

(c) Controlled portion of the Interstate System means any portion which:

(1) 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 centerline of the highway and extending to both edges of the right-of-way will intersect any right-of-way acquired for right-of-way on or before July 1, 1956);

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

(3) Is not excluded under the terms of the act which provide that agreements entered into between the Secretary of Transportation and the State highway department shall not apply to those segments of the Interstate System which traverse commercial or industrial zones within the boundaries of incorporated municipalities, as such boundaries existed on September 21, 1959, wherein the use of real property adjacent to the Interstate System is subject to municipal regulation or control, or which traverse other areas where the land use as of September 21, 1959, was clearly established by State law as industrial or commercial.

(d) Entrance roadway means any public road or turning roadway, including 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 turning 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 public road or turning roadway including deceleration lanes, by which traffic may leave the main-traveled way of an Interstate 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 turning 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 panels for the display of advertising and informational signs may be erected and maintained.

(h) Legible means capable of being read without visual aid by a person of normal visual acuity.

(i) Maintain means to allow to exist.

(j) 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, turning roadways, or parking areas.

(k) Protected areas means all areas inside the boundaries of a State which are adjacent to and within 660 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 Interstate 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 660 feet of the edge of the right-of-way of the Interstate Highway in the adjoining State.

(l) 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.

(m) 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 contents of which is visible from any place on the main-traveled way of a controlled portion of the Interstate System.

(n) 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.

(o) State law means a State constitutional provision or statute, or an ordinance, rule, or regulation enacted or adopted by a State agency or political subdivision of a State pursuant to State constitution or statute.

(p) Trade name shall include brand name, trademark, distinctive symbol, or other similar device or thing used to identify particular products or services.

(q) Traveled way means the portion of a roadway for the movement of vehicles, exclusive of shoulders.

(r) Turning roadway means a connecting roadway for traffic turning between two intersection legs of an interchange.

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

§ 750.103 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 §750.107 (a)(2) and (b) shall be measured along the centerline of the highway between two vertical planes which are normal or perpendicular to and intersect the centerline of the highway, and which pass through the termini of the measured distance.

[38 FR 16044, June 20, 1973, as amended at 41 FR 9321, Mar. 4, 1976]

§ 750.104 Signs that may not be permitted in protected areas.

Erection or maintenance of the following signs may not be permitted in protected areas:

(a) 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.

(b) Obsolete signs.

(c) Signs that are not clean and in good repair.

(d) Signs that are not securely affixed to a substantial structure, and

(e) Signs that are not consistent with the standards in this part.

§ 750.105 Signs that may be permitted in protected areas.

(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 direction or authorization contained in State of Federal law, for the purpose of carrying out an official duty or responsibility.

Class 2—On-premise signs. Signs not prohibited by State law which are consistent with the applicable provisions of this section and §750.108 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 advertised activities. Signs not prohibited by State law which are consistent with the applicable provisions of this section and §§750.106, 750.107, and 750.108 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 §§750.106, 750.107, and 750.108 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 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 advertised activity which is within 12 air miles of such sign is displayed as conspicuously as such trade name.

(c) Only information 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 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 accordance with the provisions of paragraph (c) of this section.

§ 750.106 Class 3 and 4 signs within informational sites.

(a) Informational sites for the erection and maintenance of Class 3 and 4 advertising and informational signs may be established in accordance with §1.35 of this chapter. The location and frequency of such sites shall be as determined by agreements between the Secretary of Transportation and the State highway departments.

(b) Class 3 and 4 signs may be permitted within such informational sites in protected areas in a manner consistent with the following provisions:

(1) No sign may be permitted which is not placed upon a panel.

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

(3) No sign may be permitted to exceed 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.

(4) Not more than one sign concerning a single activity or place may be permitted within any one informational site.

(5) 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.

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

(7) 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 illuminated by any other lights, or any flashing, intermittent, or moving lights.

(8) 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 Interstate 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.

[23 FR 8793, Nov. 13, 1958, as amended at 35 FR 18719, Dec. 10, 1970; 41 FR 9321, Mar. 4, 1976]

§ 750.107 Class 3 and 4 signs outside informational sites.

(a) The erection or maintenance of the following signs may be permitted within protected areas, outside informational sites:

(1) 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;

(2) 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.

(3) Signs that qualify both as Class 3 and 4 signs may be permitted in accordance with either paragraph (a)(1) or (2) of this section.

(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:

(1) 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 intersection may not be permitted to exceed the following number:

Distance from intersection Number of 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 Interstate highway.

(2) 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.

(3) Such signs may not be permitted in protected areas adjacent to any Interstate highway right-of-way upon any part of the width of which is constructed an entrance or exit roadway.

(4) 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.

(5) No such signs may be permitted in scenic areas.

(6) Not more than one such sign advertising 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 direction 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 informational sites.

§ 750.108 General provisions.

No Class 3 or 4 signs may be permitted to be erected or maintained pursuant to §750.107, and no Class 2 sign may be permitted to be erected or maintained, in any manner inconsistent with the following:

(a) No sign may be permitted which attempts or appears to attempt to direct the movement of traffic or which interferes with, imitates or resembles any official traffic sign, signal or device.

(b) 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.

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

(d) 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 Interstate 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.

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

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

(g) No sign may be permitted to exceed 20 feet in length, width or height, or 150 square feet in area, including border and trim but excluding supports, except Class 2 signs not more than 50 feet from, and advertising activities being conducted upon, the real property where the sign is located.

§ 750.109 Exclusions.

The standards in this part shall not apply to markers, signs and plaques in appreciation of sites of historical significance for the erection of which provisions are made in an agreement between a State and the Secretary of Transportation, as provided in the Act, unless such agreement expressly makes all or any part of the standards applicable.

§ 750.110 State regulations.

A State may elect to prohibit signs permissible under the standards in this part without forfeiting its rights to any benefits provided for in the act.

Subpart B—National Standards for Directional and Official Signs

Authority: 23 U.S.C. 131, 315, 49 U.S.C. 1651; 49 CFR 1.48(b).

§ 750.151 Purpose.

(a) In section 131 of title 23 U.S.C., Congress has declared that:

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

(2) Directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, shall conform to national standards authorized to be promulgated by the Secretary, which standards shall contain provisions concerning the lighting, size, number and spacing of signs, and such other requirements as may be appropriate to implement the section.

(b) The standards in this part are issued as provided in section 131 of title 23 U.S.C.

[38 FR 16044, June 30, 1973, as amended at 40 FR 21934, May 20, 1975]

§ 750.152 Application.

The following standards apply to directional and official signs and notices located within six hundred and sixty (660) feet of the right-of-way of the Interstate and Federal-aid primary systems and to those located beyond six hundred and sixty (660) feet of the right-of-way of such systems, outside of urban areas, visible from the main traveled way of such systems and erected with the purpose of their message being read from such main traveled way. These standards do not apply to directional and official signs erected on the highway right-of-way.

[40 FR 21934, May 20, 1975]

§ 750.153 Definitions.

For the purpose of this part:

(a) Sign means an outdoor sign, light, 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 contents of which is visible from any place on the main traveled way of the Interstate or Federal-aid primary highway.

(b) Main traveled way means the through traffic lanes of the highway, exclusive of frontage roads, auxiliary lanes, and ramps.

(c) Interstate System means the National System of Interstate and Defence Highways described in section 103(d) of title 23 U.S.C.

(d) Primary system means the Federal-aid highway system described in section 103(b) of title 23 U.S.C.

(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) Maintain means to allow to exist.

(g) Scenic area means any area of particular scenic beauty or historical significance as determined by the Federal, State, or local officials having jurisdiction thereof, and includes interests in land which have been acquired for the restoration, preservation, and enhancement of scenic beauty.

(h) Parkland means any publicly owned land which is designated or used as a public park, recreation area, wildlife or waterfowl refuge or historic site.

(i) Federal or State law means a Federal or State constitutional provision or statute, or an ordinance, rule, or regulation enacted or adopted by a State or Federal agency or a political subdivision of a State pursuant to a Federal or State constitution or statute.

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

(k) Freeway means a divided arterial highway for through traffic with full control of access.

(l) Rest area means an area or site established and maintained within or adjacent to the highway right-of-way by or under public supervision or control for the convenience of the traveling public.

(m) Directional and official signs and notices includes only official signs and notices, public utility signs, service club and religious notices, public service signs, and directional signs.

(n) Official signs and notices means signs and notices erected and maintained by public officers or public agencies within their territorial or zoning jurisdiction and pursuant to and in accordance with direction or authorization contained in Federal, State, or local law for the purposes of carrying out an official duty or responsibility. Historical markers authorized by State law and erected by State or local government agencies or nonprofit historical societies may be considered official signs.

(o) Public utility signs means warning signs, informational signs, notices, or markers which are customarily erected and maintained by publicly or privately owned public utilities, as essential to their operations.

(p) Service club and religious notices means signs and notices, whose erection is authorized by law, relating to meetings of nonprofit service clubs or charitable associations, or religious services, which signs do not exceed 8 square feet in area.

(q) Public service signs means signs located on school bus stop shelters, which signs:

(1) Identify the donor, sponsor, or contributor of said shelters;

(2) Contain public service messages, which shall occupy not less than 50 percent of the area of the sign;

(3) Contain no other message;

(4) Are located on schoolbus shelters which are authorized or approved by city, county, or State law, regulation, or ordinance, and at places approved by the city, county, or State agency controlling the highway involved; and

(5) May not exceed 32 square feet in area. Not more than one sign on each shelter shall face in any one direction.

(r) Directional signs means signs containing directional information about public places owned or operated by Federal, State, or local governments or their agencies; publicly or privately owned natural phenomena, historic, cultural, scientific, educational, and religious sites; and areas of natural scenic beauty or naturally suited for outdoor recreation, deemed to be in the interest of the traveling public.

(s) State means any one of the 50 States, the District of Columbia, or Puerto Rico.

(t) Urban area means an urbanized area or, in the case of an urbanized area encompassing more than one State, that part of the urbanized areas in each such State, or an urban place as designated by the Bureau of the Census having a population of five thousand or more and not within any urbanized area, within boundaries to be fixed by responsible State and local officials in cooperation with each other, subject to approval by the Secretary. Such boundaries shall, as a minimum, encompass the entire urban place designated by the Bureau of the Census.

[38 FR 16044, June 30, 1973, as amended at 40 FR 21934, May 20, 1975]

§ 750.154 Standards for directional signs.

The following apply only to directional signs:

(a) General. The following signs are prohibited:

(1) Signs advertising activities that are illegal under Federal or State laws or regulations in effect at the location of those signs or at the location of those activities.

(2) Signs located in such a manner as to obscure or otherwise interfere with the effectiveness of an official traffic sign, signal, or device, or obstruct or interfere with the driver's view of approaching, merging, or intersecting traffic.

(3) Signs which are erected or maintained upon trees or painted or drawn upon rocks or other natural features.

(4) Obsolete signs.

(5) Signs which are structurally unsafe or in disrepair.

(6) Signs which move or have any animated or moving parts.

(7) Signs located in rest areas, parklands or scenic areas.

(b) Size. (1) No sign shall exceed the following limits:

(i) Maximum area—150 square feet.

(ii) Maximum height—20 feet.

(iii) Maximum length—20 feet.

(2) All dimensions include border and trim, but exclude supports.

(c) Lighting. Signs may be illuminated, subject to the following:

(1) Signs which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights are prohibited.

(2) Signs which are not effectively shielded so as to prevent beams or rays of light from being directed at any portion of the traveled way of an Interstate or primary highway or which are of such intensity or brilliance as to cause glare or to impair the vision of the driver of any motor vehicle, or which otherwise interfere with any driver's operation of a motor vehicle are prohibited.

(3) No sign may be so illuminated as to interfere with the effectiveness of or obscure an official traffic sign, device, or signal.

(d) Spacing. (1) Each location of a directional sign must be approved by the State highway department.

(2) No directional sign may be located within 2,000 feet of an interchange, or intersection at grade along the Interstate System or other freeways (measured along the Interstate or freeway from the nearest point of the beginning or ending of pavement widening at the exit from or entrance to the main traveled way).

(3) No directional sign may be located within 2,000 feet of a rest area, parkland, or scenic area.

(4)(i) No two directional signs facing the same direction of travel shall be spaced less than 1 mile apart;

(ii) Not more than three directional signs pertaining to the same activity and facing the same direction of travel may be erected along a single route approaching the activity;

(iii) Signs located adjacent to the Interstate System shall be within 75 air miles of the activity; and

(iv) Signs located adjacent to the primary system shall be within 50 air miles of the activity.

(e) Message content. The message on directional signs shall be limited to the identification of the attraction or activity and directional information useful to the traveler in locating the attraction, such as mileage, route numbers, or exit numbers. Descriptive words or phrases, and pictorial or photographic representations of the activity or its environs are prohibited.

(f) Selection method and criteria. (1) Privately owned activities or attractions eligible for directional signing are limited to the following: natural phenomena; scenic attractions; historic, educational, cultural, scientific, and religious sites; and outdoor recreational areas.

(2) To be eligible, privately owned attractions or activities must be nationally or regionally known, and of outstanding interest to the traveling public.

(3) Each State shall develop specific selection methods and criteria to be used in determining whether or not an activity qualifies for this type of signing. A statement as to selection methods and criteria shall be furnished to the Secretary of Transportation before the State permits the erection of any such signs under section 131(c) of title 23 U.S.C., and this part.

§ 750.155 State standards.

This part does not prohibit a State from establishing and maintaining standards which are more restrictive with respect to directional and official signs and notices along the Federal-aid highway systems than these national standards.

[38 FR 16044, June 20, 1973, as amended at 40 FR 21934, May 20, 1975]

Subpart C [Reserved]

Subpart D—Outdoor Advertising (Acquisition of Rights of Sign and Sign Site Owners)

Authority: 23 U.S.C. 131 and 315; 23 CFR 1.32 and 1.48(b).

Source: 39 FR 27436, July 29, 1974, unless otherwise noted.

§ 750.301 Purpose.

To prescribe the Federal Highway Administration (FHWA) policies relating to Federal participation in the costs of acquiring the property interests necessary for removal of nonconforming advertising signs, displays and devices on the Federal-aid Primary and Interstate Systems, including toll sections on such systems, regardless of whether Federal funds participated in the construction thereof. This regulation should not be construed to authorize any additional rights in eminent domain not already existing under State law or under 23 U.S.C. 131(g).

§ 750.302 Policy.

(a) Just compensation shall be paid for the rights and interests of the sign and site owner in those outdoor advertising signs, displays, or devices which are lawfully existing under State law, in conformance with the terms of 23 U.S.C. 131.

(b)(1) Federal reimbursement will be made on the basis of 75 percent of the acquisition, removal and incidental costs legally incurred or obligated by the State.

(2) Federal funds will participate in 100 percent of the costs of removal of those signs which were removed prior to January 4, 1975, by relocation, pursuant to the provisions of 23 CFR §750.305(a)(2), and which are required to be removed as a result of the amendments made to 23 U.S.C. 131 by the Federal-Aid Highway Amendments of 1974, Pub. L. 93–643, section 109, January 4, 1975. Such signs must have been relocated to a legal site, must have been legally maintained since the relocation, and must not have been substantially changed, as defined by the State maintenance standards, issued pursuant to 23 CFR 750.707(b).

(c) Title III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4651, et seq .) applies except where complete conformity would defeat the purposes set forth in 42 U.S.C. 4651, would impede the expeditious implementation of the sign removal program or would increase administrative costs out of proportion to the cost of the interests being acquired or extinguished.

(d) Projects for the removal of outdoor advertising signs including hardship acquisitions should be programed and authorized in accordance with normal program procedures for right-of-way projects.

[39 FR 27436, July 29, 1974; 39 FR 30349, Aug. 22, 1974, as amended at 41 FR 31198, July 27, 1976]

§ 750.303 Definitions.

(a) Sign. An outdoor sign, light, display, device, figure, painting, drawing, message, placard, poster, billboard or other thing which is designed, intended of the advertising or informative contents of which is visible from any place on the main-traveled way of the Interstate or Primary Systems, whether the same be permanent or portable installation.

(b) Lease (license, permit, agreement, contract or easement). An agreement, oral or in writing, by which possession or use of land or interests therein is given by the owner or other person to another person for a specified purpose.

(c) Leasehold value. The leasehold value is the present worth of the difference between the contractual rent and the current market rent at the time of the appraisal.

(d) Illegal sign. One which was erected and/or maintained in violation of State law.

(e) Nonconforming sign. One which was lawfully erected, but which does not comply with the provisions of State law or State regulations passed at a later date or which later fails to comply with State law or State regulations due to changed conditions. Illegally erected or maintained signs are not nonconforming signs.

(f) 1966 inventory. The record of the survey of advertising signs and junkyards compiled by the State highway department.

(g) Abandoned sign. One in which no one has an interest, or as defined by State law.

§ 750.304 State policies and procedures.

The State's written policies and operating procedures for implementing its sign removal program under State law and complying with 23 U.S.C. 131 and its proposed time schedule for sign removal and procedure for reporting its accomplishments shall be submitted to the FHWA for approval within 90 days of the date of this regulation. This statement should be supported by the State's regulations implementing its program. Revisions to the State's policies and procedures shall be submitted to the FHWA for approval. The statement should contain provisions for the review of its policies and procedure to meet changing conditions, adoption of improved procedures, and for internal review to assure compliance. The statement shall include as a minimum the following:

(a) Project priorities. The following order of priorities is recommended.

(1) Illegal and abandoned signs.

(2) Hardship situations.

(3) Nominal value signs.

(4) Signs in areas which have been designated as scenic under authority of State law.

(5) Product advertising on:

(i) Rural interstate highway.

(ii) Rural primary highway.

(iii) Urban areas.

(6) Nontourist-oriented directional advertising.

(7) Tourist-oriented directional advertising.

(b) Programing. (1) A sign removal project may consist of any group of proposed sign removals. The signs may be those belonging to one company or those located along a single route, all of the signs in a single county or other locality, hardship situations, individually or grouped, such as those involving vandalized signs, or all of a sign owner's signs in a given State or area, or any similar grouping.

(2) A project for sign removal on other than a Federal-aid primary route basis e.g., a countywide project or a project involving only signs owned by one company, should be identified as CAF–000B( ), continuing the numbering sequence which began with the sign inventory project in 1966.

(3) Where it would not interfere with the State's operations, the State should program sign removal projects to minimize disruption of business.

(c) Valuation and review methods —(1) Schedules—formulas. Schedules, formulas or other methods to simplify valuation of signs and sites are recommended for the purpose of minimizing administrative and legal expenses necessarily involved in determining just compensation by individual appraisals and litigation. They do not purport to be a basis for the determination of just compensation under eminent domain.

(2) Appraisals. Where appropriate, the State may use its approved appraisal report forms including those for abbreviated or short form appraisals. Where a sign or site owner does not accept the amount computed under an approved schedule, formula, or other simplified method, an appraisal shall be utilized.

(3) Leaseholds. When outdoor advertising signs and sign sites involve a leasehold value, the State's procedures should provide for determining value in the same manner as any other real estate leasehold that has value to the lessee.

(4) Severance damages. The State has the responsibility of justifying the recognition of severance damages pursuant to 23 CFR 710.304(h), and the law of the State before Federal participation will be allowed. Generally, Federal participation will not be allowed in the payment of severance damages to remaining signs, or other property of a sign company alleged to be due to the taking of certain of the company's signs. Unity of use of the separate properties, as required by applicable principles of eminent domain law, must be shown to exist before participation in severance damages will be allowed. Moreover, the value of the remaining signs or other real property must be diminished by virtue of the taking of such signs. Payments for severance damages to economic plants or loss of business profits are not compensable. Severance damage cases must be submitted to the FHWA for prior concurrence, together with complete legal and appraisal justification for payment of these damages. To assist the FHWA in its evaluation, the following data will accompany any submission regarding severance:

(i) One copy of each appraisal in which this was analyzed. One copy of the State's review appraiser analysis and determination of market value.

(ii) A plan or map showing the location of each sign.

(iii) An opinion by the State highway department's chief legal officer that severance is appropriate in accordance with State law together with a legal opinion that, in the instant case, the damages constitute severance as opposed to consequential damage as a matter of law. The opinion shall include a determination, and the basis therefor, that the specific taking of some of an outdoor advertiser's signs constitutes a distinct economic unit, and that unity of use of the separate properties in conformity with applicable principles of eminent domain law had been satisfactorily established. A legal memorandum must be furnished citing and discussing cases and other authorities supporting the State's position.

(5) Review of value estimates. All estimates of value shall be reviewed by a person other than the one who made the estimate. Appraisal reports shall be reviewed and approved prior to initiation of negotiations. All other estimates shall be reviewed before the agreement becomes final.

(d) Nominal value plan. (1) This plan may provide for the removal costs of eligible nominal value signs and for payments up to $250 for each nonconforming sign, and up to $100 for each nonconforming sign site.

(2) The State's procedures may provide for negotiations for sign sites and sign removals to be accomplished simultaneously without prior review.

(3) Releases or agreements executed by the sign and/or site owner should include the identification of the sign, statement of ownership, price to be paid, interest acquired, and removal rights.

(4) It is not expected that salvage value will be a consideration in most acquisitions; however, the State's procedures may provide that the sign may be turned over to the sign owner, site owner, contractor, or individual as all or a part of the consideration for its removal, without any project credits.

(5) Programing and authorizations will be in accord with §750.308 of this regulation. A detailed estimate of value of each individual sign is not necessary. The project may be programed and authorized as one project.

(e) Sign removal. The State's procedural statement should include provision for:

(1) Owner retention.

(2) Salvage value.

(3) State removal.

[39 FR 27436, July 29, 1974; 42 FR 30835, June 17, 1977, as amended at 50 FR 34093, Aug. 23, 1985]

§ 750.305 Federal participation.

(a) Federal funds may participate in:

(1) Payments made to a sign owner for his right, title and interest in a sign, and where applicable, his leasehold value in a sign site, and to a site owner for his right and interest in a site, which is his right to erect and maintain the existing nonconforming sign on such site.

(2) The cost of relocating a sign to the extent of the cost to acquire the sign, less salvage value if any.

(3) A duplicate payment for the site owner's interest of $2,500 or less because of a bona fide error in ownership, provided the State has followed its title search procedures as set forth in its policy and procedure submission.

(4) The cost of removal of signs, partially completed sign structures, supporting poles, abandoned signs and those which are illegal under State law within the controlled areas, provided such costs are incurred in accordance with State law. Removal may be by State personnel on a force account basis or by contract. Documentation for Federal participation in such removal projects should be in accord with the State's normal force account and contractual reimbursement procedures. The State should maintain a record of the number of signs removed. These data should be retained in project records and reported on the periodic report required under §750.308 of this regulation.

(5) Signs materially damaged by vandals. Federal funds shall be limited to the Federal pro-rata share of the fair market value of the sign immediately before the vandalism occurred minus the estimated cost of repairing and reerecting the sign. If the State chooses, it may use its FHWA approved nominal value plan procedure to acquire these signs.

(6) The cost of acquiring and removing completed sign structures which have been blank or painted out beyond the period of time established by the State for normal maintenance and change of message, provided the sign owner can establish that his nonconforming use was not abandoned or discontinued, and provided such costs are incurred in accordance with State law, or regulation. The evidence considered by the State as acceptable for establishing or showing that the nonconforming use has not been abandoned or voluntarily discontinued shall be set forth in the State's policy and procedures.

(7) In the event a sign was omitted in the 1966 inventory, and the State supports a determination that the sign was in existence prior to October 22, 1965, the costs are eligible for Federal participation.

(b) Federal funds may not participate in:

(1) Cost of title certificates, title insurance, title opinion or similar evidence or proof of title in connection with the acquisition of a landowner's right to erect and maintain a sign or signs when the amount of payment to the landowner for his interest is $2,500 or less, unless required by State law. However, Federal funds may participate in the costs of securing some lesser evidence or proof of title such as searches and investigations by State highway department personnel to the extent necessary to determine ownership, affidavit of ownership by the owner, bill of sale, etc. The State's procedure for determining evidence of title should be set forth in the State's policy and procedure submission.

(2) Payments to a sign owner where the sign was erected without permission of the property owner unless the sign owner can establish his legal right to erect and maintain the sign. However, such signs may be removed by State personnel on a force account basis or by contract with Federal participation except where the sign owner reimburses the State for removal.

(3) Acquisition costs paid for abandoned or illegal signs, potential sign sites, or signs which were built during a period of time which makes them ineligible for compensation under 23 U.S.C. 131, or for rights in sites on which signs have been abandoned or illegally erected by a sign owner.

(4) The acquisition cost of supporting poles or partially completed sign structures in nonconforming areas which do not have advertising or informative content thereon unless the owner can show to the State's satisfaction he has not abandoned the structure. When the State has determined the sign structure has not been abandoned, Federal funds will participate in the acquisition of the structure, provided the cost are incurred in accordance with State law.

§ 750.306 Documentation for Federal participation.

The following information concerning each sign must be available in the State's files to be eligible for Federal participation.

(a) Payment to sign owner. (1) A photograph of the sign in place. Exceptions may be made in cases where in one transaction the State has acquired a number of a company's nominal value signs similar in size, condition and shape. In such cases, only a sample of representative photographs need be provided to document the type and condition of the signs.

(2) Evidence showing the sign was nonconforming as of the date of taking.

(3) Value documentation and proof of obligation of funds.

(4) Satisfactory indication of ownership of the sign and compensable interest therein (e.g., lease or other agreement with the property owner, or an affidavit, certification, or other such evidence of ownership).

(5) Evidence that the sign falls within one of the three categories shown in §750.302 of this regulation. The specific category should be identified.

(6) Evidence that the right, title, or interest pertaining to the sign has passed to the State, or that the sign has been removed.

(b) Payment to the site owner. (1) Evidence that an agreement has been reached between the State and owner.

(2) Value documentation and proof of obligation of funds.

(3) Satisfactory indication of ownership or compensable interest.

(c) In those cases where Federal funds participate in 100 percent of the cost of removal, the State file shall contain the records of the relocation made prior to January 4, 1975.

[39 FR 27436, July 29, 1974, as amended at 41 FR 31198, July 27, 1976]

§ 750.307 FHWA project approval.

Authorization to proceed with acquisitions on a sign removal project shall not be issued until such time as the State has submitted to FHWA the following:

(a) A general description of the project.

(b) The total number of signs to be acquired.

(c) The total estimated cost of the sign removal project, including a breakdown of incidental, acquisition and removal costs.

§ 750.308 Reports.

Periodic reports on site acquisitions and actual sign removals shall be submitted on FHWA Form 1424 and as prescribed.1

1 Forms are available at FHWA Division Offices located in each State.

[39 FR 27436, July 29, 1974, as amended at 41 FR 9321, Mar. 4, 1976]

Subpart E—Signs Exempt From Removal in Defined Areas

Authority: 23 U.S.C. 131 and 315, 49 CFR 1.48, 23 CFR 1.32.

Source: 41 FR 45827, Oct. 18, 1976, unless otherwise noted.

§ 750.501 Purpose.

This subpart sets forth the procedures pursuant to which a State may, if it desires, seek an exemption from the acquisition requirements of 23 U.S.C. 131 for signs giving directional information about goods and services in the interest of the traveling public in defined areas which would suffer substantial economic hardship if such signs were removed. This exemption may be granted pursuant to the provisions of 23 U.S.C. 131(o).

§ 750.502 Applicability.

The provisions of this subpart apply to signs adjacent to the Interstate and primary systems which are required to be controlled under 23 U.S.C. 131.

§ 750.503 Exemptions.

(a) The Federal Highway Administration (FHWA) may approve a State's request to exempt certain nonconforming signs, displays, and devices (hereinafter called signs) within a defined area from being acquired under the provisions of 23 U.S.C. 131 upon a showing that removal would work a substantial economic hardship throughout that area. A defined area is an area with clearly established geographical boundaries defined by the State which the State can evaluate as an economic entity. Neither the States nor FHWA shall rely on individual claims of economic hardship. Exempted signs must:

(1) Have been lawfully erected prior to May 5, 1976, and must continue to be lawfully maintained.

(2) Continue to provide the directional information to goods and services offered at the same enterprise in the defined area in the interest of the traveling public that was provided on May 5, 1976. Repair and maintenance of these signs shall conform with the State's approved maintenance standards as required by subpart G of this part.

(b) To obtain the exemption permitted by 23 U.S.C. 131(o), the State shall establish:

(1) Its requirements for the directional content of signs to qualify the signs as directional signs to goods and services in the defined area.

(2) A method of economic analysis clearly showing that the removal of signs would work a substantial economic hardship throughout the defined area.

(c) In support of its request for exemption, the State shall submit to the FHWA:

(1) Its requirements and method (see §750.503(b)).

(2) The limits of the defined area(s) requested for exemption, a listing of signs to be exempted, their location, and the name of the enterprise advertised on May 5, 1976.

(3) The application of the requirements and method to the defined areas, demonstrating that the signs provide directional information to goods and services of interest to the traveling public in the defined area, and that removal would work a substantial economic hardship in the defined area(s).

(4) A statement that signs in the defined area(s) not meeting the exemption requirements will be removed in accordance with State law.

(5) A statement that the defined area will be reviewed and evaluated at least every three (3) years to determine if an exemption is still warranted.

(d) The FHWA, upon receipt of a State's request for exemption, shall prior to approval:

(1) Review the State's requirements and methods for compliance with the provisions of 23 U.S.C. 131 and this subpart.

(2) Review the State's request and the proposed exempted area for compliance with State requirements and methods.

(e) Nothing herein shall prohibit the State from acquiring signs in the defined area at the request of the sign owner.

(f) Nothing herein shall prohibit the State from imposing or maintaining stricter requirements.

Subpart F [Reserved]

Subpart G—Outdoor Advertising Control

Authority: 23 U.S.C. 131 and 315; 49 CFR 1.48.

Source: 40 FR 42844, Sept. 16, 1975, unless otherwise noted.

§ 750.701 Purpose.

This subpart prescribes the Federal Highway Administration (FHWA) policies and requirements relating to the effective control of outdoor advertising under 23 U.S.C. 131. The purpose of these policies and requirements is to assure that there is effective State control of outdoor advertising in areas adjacent to Interstate and Federal-aid primary highways. Nothing in this subpart shall be construed to prevent a State from establishing more stringent outdoor advertising control requirements along Interstate and Primary Systems than provided herein.

§ 750.702 Applicability.

The provisions of this subpart are applicable to all areas adjacent to the Federal-aid Interstate and Primary Systems, including toll sections thereof, except that within urban areas, these provisions apply only within 660 feet of the nearest edge of the right-of-way. These provisions apply regardless of whether Federal funds participated in the costs of such highways. The provisions of this subpart do not apply to the Federal-aid Secondary or Urban Highway System.

§ 750.703 Definitions.

The terms as used in this subpart are defined as follows:

(a) Commercial and industrial zones are those districts established by the zoning authorities as being most appropriate for commerce, industry, or trade, regardless of how labeled. They are commonly categorized as commercial, industrial, business, manufacturing, highway service or highway business (when these latter are intended for highway-oriented business), retail, trade, warehouse, and similar classifications.

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

(c) Federal-aid Primary Highway means any highway on the system designated pursuant to 23 U.S.C. 103(b).

(d) Interstate Highway means any highway on the system defined in and designated, pursuant to 23 U.S.C. 103(e).

(e) Illegal sign means one which was erected or maintained in violation of State law or local law or ordinance.

(f) Lease means an agreement, license, permit, or easement, oral or in writing, by which possession or use of land or interests therein is given for a specified purpose, and which is a valid contract under the laws of a State.

(g) Maintain means to allow to exist.

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

(i) Sign, display or device, hereinafter referred to as “sign,” means an outdoor advertising sign, light, 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 contents of which is visible from any place on the main-traveled way of the Interstate or Primary Systems, whether the same be permanent or portable installation.

(j) State law means a State constitutional provision or statute, or an ordinance, rule or regulation, enacted or adopted by a State.

(k) Unzoned area means an area where there is no zoning in effect. It does not include areas which have a rural zoning classification or land uses established by zoning variances or special exceptions.

(l) Unzoned commercial or industrial areas are unzoned areas actually used for commercial or industrial purposes as defined in the agreements made between the Secretary, U.S. Department of Transportation (Secretary), and each State pursuant to 23 U.S.C. 131(d).

(m) Urban area is as defined in 23 U.S.C. 101(a).

(n) Visible means capable of being seen, wehter or not readable, without visual aid by a person of normal visual acuity.

§ 750.704 Statutory requirements.

(a) 23 U.S.C. 131 provides that signs adjacent to the Interstate and Federal-aid Primary Systems which are visible from the main-traveled way and within 660 feet of the nearest edge of the right-of-way, and those additional signs beyond 660 feet outside of urban areas which are visible from the main-traveled way and erected with the purpose of their message being read from such main-traveled way, shall be limited to the following:

(1) Directional and official signs and notice which shall conform to national standards promulgated by the Secretary in subpart B, part 750, chapter I, 23 CFR, National Standards for Directional and Official Signs;

(2) Signs advertising the sale or lease of property upon which they are located;

(3) Signs advertising activities conducted on the property on which they are located;

(4) Signs within 660 feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and Federal-aid Primary Systems which are zoned industrial or commercial under the authority of State law;

(5) Signs within 660 feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and Federal-aid Primary Systems which are unzoned commercial or industrial areas, which areas are determined by agreement between the State and the Secretary; and

(6) Signs lawfully in existence on October 22, 1965, which are determined to be landmark signs.

(b) 23 U.S.C. 131(d) provides that signs in §750.704(a) (4) and (5) must comply with size, lighting, and spacing requirements, to be determined by agreement between the State and the Secretary.

(c) 23 U.S.C. 131 does not permit signs to be located within zoned or unzoned commercial or industrial areas beyond 660 feet of the right-of-way adjacent to the Interstate or Federal-aid Primary System, outside of urban areas.

(d) 23 U.S.C. 131 provides that signs not permitted under §750.704 of this regulation must be removed by the State.

§ 750.705 Effective control.

In order to provide effective control of outdoor advertising, the State must:

(a) Prohibit the erection of new signs other than those which fall under §750.704(a)(1) through (6);

(b) Assure that signs erected under §750.704(a)(4) and (5) comply, at a minimum, with size, lighting, and spacing criteria contained in the agreement between the Secretary and the State;

(c) Assure that signs erected under §750.704(a)(1) comply with the national standards contained in subpart B, part 750, chapter I, 23 CFR;

(d) Remove illegal signs expeditiously;

(e) Remove nonconforming signs with just compensation within the time period set by 23 U.S.C. 131 (subpart D, part 750, chapter I, 23 CFR, sets forth policies for the acquisition and compensation for such signs);

(f) Assure that signs erected under §750.704(a)(6) comply with §750.710, Landmark Signs, if landmark signs are allowed;

(g) Establish criteria for determining which signs have been erected with the purpose of their message being read from the main-traveled way of an Interstate or primary highway, except where State law makes such criteria unnecessary. Where a sign is erected with the purpose of its message being read from two or more highways, one or more of which is a controlled highway, the more stringent of applicable control requirements will apply;

(h) Develop laws, regulations, and procedures to accomplish the requirements of this subpart;

(i) Establish enforcement procedures sufficient to discover illegally erected or maintained signs shortly after such occurrence and cause their prompt removal; and

(j) Submit regulations and enforcement procedures to FHWA for approval.

[40 FR 42844, Sept. 16, 1975; 40 FR 49777, Oct. 24, 1975]

§ 750.706 Sign control in zoned and unzoned commercial and industrial areas.

The following requirements apply to signs located in zoned and unzoned commercial and industrial areas within 660 feet of the nearest edge of the right-of-way adjacent to the Interstate and Federal-aid primary highways.

(a) The State by law or regulation shall, in conformity with its agreement with the Secretary, set criteria for size, lighting, and spacing of outdoor advertising signs located in commercial or industrial zoned or unzoned areas, as defined in the agreement, adjacent to Interstate and Federal-aid primary highways. If the agreement between the Secretary and the State includes a grandfather clause, the criteria for size, lighting, and spacing will govern only those signs erected subsequent to the date specified in the agreement. The States may adopt more restrictive criteria than are presently contained in agreements with the Secretary.

(b) Agreement criteria which permit multiple sign structures to be considered as one sign for spacing purposes must limit multiple sign structures to signs which are physically contiguous, or connected by the same structure or cross-bracing, or located not more than 15 feet apart at their nearest point in the case of back-to-back or “V” type signs.

(c) Where the agreement and State law permits control by local zoning authorities, these controls may govern in lieu of the size, lighting, and spacing controls set forth in the agreement, subject to the following:

(1) The local zoning authority's controls must include the regulation of size, of lighting and of spacing of outdoor advertising signs, in all commercial and industrial zones.

(2) The regulations established by local zoning authority may be either more restrictive or less restrictive than the criteria contained in the agreement, unless State law or regulations require equivalent or more restrictive local controls.

(3) If the zoning authority has been delegated, extraterritorial, jurisdiction under State law, and exercises control of outdoor advertising in commercial and industrial zones within this extraterritorial jurisdiction, control by the zoning authority may be accepted in lieu of agreement controls in such areas.

(4) The State shall notify the FHWA in writing of those zoning jurisdictions wherein local control applies. It will not be necessary to furnish a copy of the zoning ordinance. The State shall periodically assure itself that the size, lighting, and spacing control provisions of zoning ordinances accepted under this section are actually being enforced by the local authorities.

(5) Nothing contained herein shall relieve the State of the responsibility of limiting signs within controlled areas to commercial and industrial zones.

§ 750.707 Nonconforming signs.

(a) General. The provisions of §750.707 apply to nonconforming signs which must be removed under State laws and regulations implementing 23 U.S.C. 131. These provisions also apply to nonconforming signs located in commercial and industrial areas within 660 feet of the nearest edge of the right-of-way which come under the so-called grandfather clause contained in State-Federal agreements. These provisions do not apply to conforming signs regardless of when or where they are erected.

(b) Nonconforming signs. A nonconforming sign is a sign which was lawfully erected but does not comply with the provisions of State law or State regulations passed at a later date or later fails to comply with State law or State regulations due to changed conditions. Changed conditions include, for example, signs lawfully in existence in commercial areas which at a later date become noncommercial, or signs lawfully erected on a secondary highway later classified as a primary highway.

(c) Grandfather clause. At the option of the State, the agreement may contain a grandfather clause under which criteria relative to size, lighting, and spacing of signs in zoned and unzoned commercial and industrial areas within 660 feet of the nearest edge of the right-of-way apply only to new signs to be erected after the date specified in the agreement. Any sign lawfully in existence in a commercial or industrial area on such date may remain even though it may not comply with the size, lighting, or spacing criteria. This clause only allows an individual sign at its particular location for the duration of its normal life subject to customary maintenance. Preexisting signs covered by a grandfather clause, which do not comply with the agreement criteria have the status of nonconforming signs.

(d) Maintenance and continuance. In order to maintain and continue a nonconforming sign, the following conditions apply:

(1) The sign must have been actually in existence at the time the applicable State law or regulations became effective as distinguished from a contemplated use such as a lease or agreement with the property owner. There are two exceptions to actual existence as follows:

(i) Where a permit or similar specific State governmental action was granted for the construction of a sign prior to the effective date of the State law or regulations and the sign owner acted in good faith and expended sums in reliance thereon. This exception shall not apply in instances where large numbers of permits were applied for and issued to a single sign owner, obviously in anticipation of the passage of a State control law.

(ii) Where the State outdoor advertising control law or the Federal-State agreement provides that signs in commercial and industrial areas may be erected within six (6) months after the effective date of the law or agreement provided a lease dated prior to such effective date was filed with the State and recorded within thirty (30) days following such effective date.

(2) There must be existing property rights in the sign affected by the State law or regulations. For example, paper signs nailed to trees, abandoned signs and the like are not protected.

(3) The sign may be sold, leased, or otherwise transferred without affecting its status, but its location may not be changed. A nonconforming sign removed as a result of a right-of-way taking or for any other reason may be relocated to a conforming area but cannot be reestablished at a new location as a nonconforming use.

(4) The sign must have been lawful on the effective date of the State law or regulations, and must continue to be lawfully maintained.

(5) The sign must remain substantially the same as it was on the effective date of the State law or regulations. Reasonable repair and maintenance of the sign, including a change of advertising message, is not a change which would terminate nonconforming rights. Each State shall develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate nonconforming rights.

(6) The sign may continue as long as it is not destroyed, abandoned, or discontinued. If permitted by State law and reerected in kind, exception may be made for signs destroyed due to vandalism and other criminal or tortious acts.

(i) Each state shall develop criteria to define destruction, abandonment and discontinuance. These criteria may provide that a sign which for a designated period of time has obsolete advertising matter or is without advertising matter or is in need of substantial repair may constitute abandonment or discontinuance. Similarly, a sign damaged in excess of a certain percentage of its replacement cost may be considered destroyed.

(ii) Where an existing nonconforming sign ceases to display advertising matter, a reasonable period of time to replace advertising content must be established by each State. Where new content is not put on a structure within the established period, the use of the structure as a nonconforming outdoor advertising sign is terminated and shall constitute an abandonment or discontinuance. Where a State establishes a period of more than one (1) year as a reasonable period for change of message, it shall justify that period as a customary enforcement practice within the State. This established period may be waived for an involuntary discontinuance such as the closing of a highway for repair in front of the sign.

(e) Just compensation. The States are required to pay just compensation for the removal of nonconforming lawfully existing signs in accordance with the terms of 23 U.S.C. 131 and the provisions of subpart D, part 750, chapter I, 23 CFR. The conditions which establish a right to maintain a nonconforming sign and therefore the right to compensation must pertain at the time it is acquired or removed.

§ 750.708 Acceptance of state zoning.

(a) 23 U.S.C. 131(d) provide that signs “may be erected and maintained within 660 feet of the nearest edge of the right-of-way within areas . . . which are zoned industrial or commercial under authority of State law.” Section 131(d) further provides, “The States shall have full authority under their own zoning laws to zone areas for commercial or industrial purposes, and the actions of the States in this regard will be accepted for the purposes of this Act.”

(b) State and local zoning actions must be taken pursuant to the State's zoning enabling statute or constitutional authority and in accordance therewith. Action which is not a part of comprehensive zoning and is created primarily to permit outdoor advertising structures, is not recognized as zoning for outdoor advertising control purposes.

(c) Where a unit of government has not zoned in accordance with statutory authority or is not authorized to zone, the definition of an unzoned commercial or industrial area in the State-Federal agreement will apply within that political subdivision or area.

(d) A zone in which limited commercial or industrial activities are permitted as an incident to other primary land uses is not considered to be a commercial or industrial zone for outdoor advertising control purposes.

§ 750.709 On-property or on-premise advertising.

(a) A sign which consists solely of the name of the establishment or which identifies the establishment's principal or accessory products or services offered on the property is an on-property sign.

(b) When a sign consists principally of brand name or trade name advertising and the product or service advertised is only incidental to the principal activity, or if it brings rental income to the property owner, it shall be considered the business of outdoor advertising and not an on-property sign.

(c) A sale or lease sign which also advertises any product or service not conducted upon and unrelated to the business or selling or leasing the land on which the sign is located is not an on-property sign.

(d) Signs are exempt from control under 23 U.S.C. 131 if they solely advertise the sale or lease of property on which they are located or advertise activities conducted on the property on which they are located. These signs are subject to regulation (subpart A, part 750, chapter I, 23 CFR) in those States which have executed a bonus agreement, 23 U.S.C. 131(j). State laws or regulations shall contain criteria for determining exemptions. These criteria may include:

(1) A property test for determining whether a sign is located on the same property as the activity or property advertised; and

(2) A purpose test for determining whether a sign has as its sole purpose the identification of the activity located on the property or its products or services, or the sale or lease of the property on which the sign is located.

(3) The criteria must be sufficiently specific to curb attempts to improperly qualify outdoor advertising as “on-property” signs, such as signs on narrow strips of land contiguous to the advertised activity when the purpose is clearly to circumvent 23 U.S.C. 131.

§ 750.710 Landmark signs.

(a) 23 U.S.C. 131(c) permits the existence of signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, of historic or artistic significance, the preservation of which is consistent with the purpose of 23 U.S.C. 131.

(b) States electing to permit landmark signs under 23 U.S.C. 131(c) shall submit a one-time list to the Federal Highway Administration for approval. The list should identify each sign as being in the original 1966 inventory. In the event a sign was omitted in the 1966 inventory, the State may submit other evidence to support a determination that the sign was in existence on October 22, 1965.

(c) Reasonable maintenance, repair, and restoration of a landmark sign is permitted. Substantial change in size, lighting, or message content will terminate its exempt status.

§ 750.711 Structures which have never displayed advertising material.

Structures, including poles, which have never displayed advertising or informative content are subject to control or removal when advertising content visible from the main-traveled way is added or affixed. When this is done, an “outdoor advertising sign” has then been erected which must comply with the State law in effect on that date.

§ 750.712 Reclassification of signs.

Any sign lawfully erected after the effective date of a State outdoor advertising control law which is reclassified from legal-conforming to nonconforming and subject to removal under revised State statutes or regulations and policy pursuant to this regulation is eligible for Federal participation in just compensation payments and other eligible costs.

§ 750.713 Bonus provisions.

23 U.S.C. 131(j) specifically provides that any State which had entered into a bonus agreement before June 30, 1965, will be entitled to remain eligible to receive bonus payments provided it continues to carry out its bonus agreement. Bonus States are not exempt from the other provisions of 23 U.S.C. 131. If a State elects to comply with both programs, it must extend controls to the Primary System, and continue to carry out its bonus agreement along the Interstate System except where 23 U.S.C. 131, as amended, imposes more stringent requirements.