FEDERAL HIGHWAY BEAUTIFICATION ACT
SOUTH CAROLINA HIGHWAY ADVERTISING CONTROL ACT
CUTTING TREES FOR BILLBOARDS
THE LEGAL CASE FOR BILLBOARD CONTROL

The following text was adapted from the “Palmetto Conservation Foundation Citizen’s Guide To Billboard Control” and is used with their permission.

In South Carolina, billboards are regulated at the federal, state and local level. These laws are intended to cooperatively control billboard proliferation by protecting the scenic and natural character of our communities and roadsides. However, in many instances this complex relationship has failed, allowing the continued proliferation of permitted, and therefore legal, billboards.

Federal Control

The United States Congress has passed three laws to provide for control of billboards along federal highways: The Bonus Act, the Highway Beautification Act and the National Scenic Byways Program.

THE BONUS ACT of 1958 has been used by some states to keep billboards off rural segments of federally aided interstates. This act provided a "carrot" to states. A state that complied with the Bonus Act by agreeing to prohibit billboards within 660 feet of interstate right-of-ways was eligible for a bonus payment of one-half of one percent of the construction costs of a highway. Even though some states were able to use the Bonus Act to protect scenery along their interstates, the majority of states have not participated in the program.

THE HIGHWAY BEAUTIFICATION ACT

Due to lack of participation in the Bonus Act, Congress responded in 1965 by passing the Highway Beautification Act (HBA). The HBA is intended to "promote the safety and recreational value of public travel, and to preserve natural beauty." The act tries to do this by mandating states to provide "effective control" over billboards along its federally aided highways. Effective control is defined by the statute as the prohibition of billboards visible from the highway, except for directional signs, on-site real estate signs, on-site business signs, landmark signs, and free coffee signs.

The statute also creates a way to remove non-conforming billboards along federal highways. States are allowed to remove all non-conforming signs after a five-year grace period. If the state decides to remove the non-conforming sign, it must pay the owner of the sign "just compensation" for the cost of the removal. It a state fails to pay "just compensation," it may be at risk of losing 10 percent of its federal highways funds. This section of the statute is one of its most controversial provisions and an impediment to communities fighting for protection of their scenic beauty.

In 1978, the Act was amended to extend the compensation requirement to any sign removal required by any law " federal, state or local. This includes local land use controls, like zoning laws and other planning-type ordinances, and any law or ordinance that required removal of signs. This loophole in the law has continued to allow construction of new billboards and thousands of non-conforming billboards still stand today. However, paying the billboard industry "just  compensation" to remove their billboard signs has not improved the aesthetic value of our roadsides. A 1985 report published by the U. S. General Accounting Office showed that the number of billboards along federal highways is not decreasing. For example, in 1983 the billboard industry was paid for the removal of 13,875 signs, but the industry erected 13,522 new legally permitted signs in commercial and industrialareas.

Another loophole in the HBA allows the construction of new billboards in areas zoned for commercial or industrial use or any unzoned commercial or industrial area. This provision of the statute allows for thousands of permitted billboards under the Act, which undermines the basic premise of why the HBA was enacted in the first place. Under the statute, the Secretary of Transportation makes an agreement with each state to define an "unzoned commercial and industrial area." Unfortunately, many communities have used this area of the statute to zone areas along the highway as commercial just to allow billboards to be erected.

The "unzoned commercial and industrial area" exception was intended for those areas that were truly commercial or industrial in communities that lacked zoning and other land-use planning. This exception has been abused in many instances by the billboard companies using 'small, obscure businesses, which may not even be visible from the highway, to qualify a rural site for the erection of several billboards."11These two factors have contributed to the failure of the HBA and the billboard clutter along our federal highways. For example, Scenic America estimates that more than 450,000 billboards can be found along the federal highway system" "about 15 for every 10 road miles. This number increases by about 5,000 "15,000 each year."

SCENIC BYWAYS PROGRAM

The most recent effort to protect America's visual heritage is the National Scenic Byways Program. Established in 1991 by the U. S. Congress, the National Scenic Byways Program is a voluntary program in which states may participate to acquire funding to protect and promote unique, natural, historic and culturally significant roads.

States have access to over $148 million over a six-year period to create projects like corridor management  planning, purchasing conservation and scenic easements, and billboard removal.

Today, over 40 states have roads that have been designated under the National Scenic Byways Program. Scenic byways can enhance quality of life and improve local economies through, among other things, the tourism industry. It has been shown in study after study that tourism stimulates economic development. A recent study in Colorado showed thatbyway designation increased traffic on eight of 21 new byways, leading to sales increased by about 10 percent.13 Finally, another important protectionmeasure afforded by byway designation is billboard control.

Once a federally aided highway is designated, no new construction of billboards is allowed. However, existing billboards may remain. South Carolina has over 220 miles of designated scenic highways including Cherokee Foothills Scenic Highway in the northwest section of the state and Savannah River Scenic Highway near the border of Georgia and the Savannah River.

SOUTH CAROLINA HIGHWAY ADVERTISING CONTROL ACT

The South Carolina Highway Advertising Act works under the assumption that billboards are an important part of South Carolina's economy, but need to be regulated in specific areas and under certain circumstances. The exceptions and restrictions provided in the statute explain why our roadsides look as they do, and why our neighborhoods and communities are showing the signs of billboard proliferation.

The South Carolina Highway Advertising Control Act follows the paradigm established in the federal Highway Beautification Act. In its declaration of purpose, the South Carolina General Assembly finds first that "outdoor advertising is a legitimate form of commercial use of the private property adjacent to the public highways," and that "outdoor advertising is an integral part of the business and marketing function and is an established segment of the national economy."However, the statute continues, "in order...to prevent unreasonable distraction of operators of motor vehicles, prevent confusion with regard to traffic lights, signs, or signals, promote the prosperity, economic well-being and general welfare of the State, and preserve and enhance the natural scenic beauty...outdoor advertising signs must be regulated..."

The statute allows no signs to be erected or maintained, "which i s visible from the main-traveled way of the interstate or federal-aid primary highways." However, the statute provides similar exceptions as the federal statute. Signs that can be erected are official signs and notices,public utility warning signs, signs of service clubs and religious organizations, directional signs for public places owned by governmental entities, on-site real estate signs, signs located in areas zoned industrial or commercial, and small agriculture signs.

The Highway Advertising Control Act also prohibits billboards within 100 feet of public parks of 10 acres or more, public forests, public playgrounds of one-half acre, and other officially designated scenic areas. Like the federal law, the state law also sets minimum standards relating to size, shape, lighting and spacing of billboards. Under the Highway Advertising Control Act, county or local governments are the entities that determine "customary use" regarding size, lighting, and spacing of outdoor advertising.

Cutting trees for billboards

The South Carolina Department of Transportation has developed a vegetation maintenance policy related to tree and vegetation removal around billboards. Under this policy, a sign owner enters into a standard eight-year contract with the state for vegetation removal. In the f i r s t year o f this contract, the sign owner is required to remove the vegetation and pay a $200 permit fee. However, the state then assumes sign maintenance for the next seven years, while billboard owners must pay $200 annually for the state to maintain a sight window. If a billboard owner violates the Outdoor Advertising Vegetation Maintenance Policy, it is grounds for termination of the agreement and cancellation of all permits issued by DOT. Afterwards, the agency can force billboard owners to remove the signs at their expense.


The City of Columbia has resisted requests by the billboard industry to cut down these Palmetto trees at this site near the Gervais Street bridge.

The legal case for billboard control

When the billboard industry challenges the legal validity of billboard regulations it usually cites the First Amendment right of free speech, and the Fifth and Fourteenth Amendment prohibiting government from taking private property without just compensation.

First Amendment:

The First Amendment of the U.S. Constitution provides: "Congress shall make no law...abridging the freedom of speech. U.S. courts have held that laws prohibiting the construction of billboards do not infringe upon freedom of speech where the public or governmental interests outweigh the free speech interests of the owner of the sign.

The controlling law on this issue is Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). In Metromedia, the United States Supreme Court looked at a city ordinance that banned all off-site billboards except those on federal highways. The court struck down the ordinance on the basis that it impermissibly favored onsite commercial speech over noncommercial speech. And while the City of San Diego lost this particular case because Metromedia lawyers successfully argued their First Amendment rights, it is important to note the Supreme Court made it very clear that cities do have the authority to ban billboards.

In his majority opinion, Justice William Brennan said that had the city of San Diego shown that it was furthering a 'substantial government interest" it could totally ban billboards on other grounds. Argued differently, the city's interest in its appearance would then possibly justify a ban on all billboards.

To ensure a billboard ordinance is crafted properly to deal with free speech concerns, billboard control advocates should consider four questions stemming directly from Metromedia, Inc. v. City of San Diego:

1. Is the billboard ordinance content neutral and impartially administered?
This means an ordinance cannot be aimed at the suppression of free expression and cannot be based on any particular point of view. For example, the ordinance cannot favor non-commercial speech over commercial speech, by allowing billboards for elections but not for advertising products.

2. Does the billboard ordinance directly advance a substantial state interest? The 'substantial state interests" as relating to billboard control are usually traffic safety and aesthetics. The court relies on the community's judgment to determine whether the ordinance directly advances the state's interest. However, the court will look to ensure that the billboard ordinance is reasonable.

3. Is the billboard ordinance narrowly tailored?
If the ordinance is challenged, a court will look to determine whether the ordinance is narrowly tailored so that its effect on speech is no greater than necessary to accomplish the city's purpose.

4. Does the ordinance leave open alternate means of communication? This question should not be difficult to answer "yes" to. Today there are many types of advertising outlets available even in small towns, including radio, television, internet, cable television, and newspapers.

Fifth Amendment: Takings

The Fifth Amendment of the U. S. Constitution provides in part that no person shall "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The Fourteenth Amendment applied this restriction to the states when it provided that "nor shall any state deprive any person of life, liberty, or property, without due process of law."

Basically, a government cannot take a person's private property without "just compensation." However, ordinances requiring removal of billboards over time do not result in a taking. It is important to remember when discussing takings that billboards are a form of tangible, personal property that can be dismantled and relocated. The structure is not seized or confiscated, but is simply required to be moved. The landowner, who is usually not the sign owner, retains full title to the property, which can be used for any other lawful purpose.

Neither is the landowner entitled to just compensation. The property has not been taken by new zoning laws, its use has just been limited, and this happens with zoning laws all the time. The site may have been valuable as agricultural property before the new zoning, if so, it is still valuable for that same use. The government hasn’t taken the property. The property had no inherent value as a billboard site until taxpayers built a road adjacent to the property.

Most taking of private property occurs when the government, exercising its power of eminent domain, takes actual possession of your land and uses it for a public purpose.  In these cases, the government takes all of the property, which leaves the owner with nothing except his right to just compensation. A billboard regulation requiring the removal of sign does not result in the government seizing the property for public use. It is an exercise of its police power, not its eminent domain power.

The government is restricting how the property can be used, as is done all the time in zoning regulations. To address Fifth Amendment considerations, courts have adopted the use of amortization as a constitutionally valid alternative to immediate removal.

A common way of eliminating nonconforming billboard signs is through a process called amortization. With amortization, a government body can allow a billboard to remain standing for a set period of time. However, at the end of this period the owner must remove the sign at which time he will receive "just compensation" from the government.

The majority of courts in the United States have held that amortization is a constitutionally acceptable substitute for cash compensation, and that it is a reasonable exercise of the police power of the state. Non-conforming signs have been held to be a problem for local government to solve through local land use powers as defined by the state constitution.

Recently, the Fourth Circuit Court ofAppeals in Major Media of the Southeast v.City of Raleigh upheld the City of Raleigh's five-year amortization period for nonconforming signs. The court observed that amortization created a"middle ground" between an indefinite term of use and a quick termination of nonconforming use.

This case seems to allow the use of amortization in South Carolina cities and counties ifthe zoning provision thatutilizes amortization representsa valid exercise of the policepower and is reasonable as applied to the owner of the sign. A "valid exercise of the police power" are that things whichfurther public health, safety orwelfare. A "reasonable" zoning provision relating to amortization must be long enough to allow the sign owner to recoup his investment, thereby constituting an alternative to paying monetary compensation for the sign's removal.

It is useful to remember when discussing the constitutionality of amortization that the billboard industry attacks amortization on the ground that it is equivalent to the confiscation or destruction of someone's home by the government. This is just not true. Requiring local governments to pay cash for billboard removal gives special treatment to billboard companies" treatment not received by any other industry or non-conforming land use. Local government (without state interference and without cash payments) regulates all other land uses.