Request By:
Sara Walter
Vice President and General Counsel
Naegele Outdoor Advertising Company of Louisville
1501 Lexington Road
P.O. Box 7744
Louisville, KY 40207
Opinion
Opinion By: Steven L. Beshear, Attorney General; Charles W. Runyan, Assistant Deputy Attorney General
You raise a question concerning Kentucky's carrying out the national policy relative to outdoor advertising adjacent to the rights-of-way of Kentucky interstate roads, which rights-of-way were acquired prior to July 1, 1956.
The so-called Federal Bonus Act of 1958 represented initial federal efforts at controlling outdoor advertising. It was actually a part of Public Law 85-381, the Federal Highway Act of 1958. The Act provided that states agreeing to control outdoor advertising in areas adjacent to interstate highways in accordance with national policy and national standards would receive a bonus of one-half of 1 percent of the highway's cost of construction. The so-called "Cotton areas" exemption applied to interstate highways and rights-of-way upon which they were constructed, which rights-of-way were acquired prior to July 1, 1956.
By agreement of June 12, 1961, between the Kentucky Department of Highways and the United States Department of Commerce, Bureau of Public Roads, the Commonwealth agreed to issue interstate outdoor advertising regulations, affecting areas which were historically called the "Cotton areas." The gist of the "Cotton areas" was that the agreement was to apply to areas adjacent to all portions of the Interstate System highways within Kentucky that are constructed upon any part of a right-of-way, the entire width of which has been acquired prior to July 1, 1956. The said areas (thereafter designated as adjacent areas) are those within 660 feet of the edge of the right-of-way of Kentucky Interstate System Highways, determined in accordance with the national standards. Under the Cotton Amendment agreement, the federal government permitted bonus states to exempt certain areas adjacent to the interstate highways, as above described, from application of federal regulations with respect to outdoor advertising. However, such state regulations (or statutes) must be in accordance with national standards. Thus, Kentucky was among the bonus states that incorporated the Cotton Amendment into its original bonus agreement with the federal government when it was first executed under Highway Commissioner Henry Ward (June 12, 1961). The "Cotton areas" must be distinguished from the "Kerr areas" adjoining such interstate highways, which latter involved commercial or industrial zones within incorporated cities, as the city boundaries existed on September 21, 1959.
The Kentucky agreement also contained the "Kerr Amendment" , which covered regulation of advertising near the Kentucky Interstate System, but which Kentucky regulation excludes the application of the national standards. Such excluded zones, as we said above, were those segments of the Kentucky Interstate System which traverse commercial or industrial zones within the boundaries of incorporated municipalities, as such boundaries existed on September 21, 1959. See P.L. 86-342, Section 106, effective September 21, 1959. The Kerr Amendment was implemented by Kentucky. See 603 KAR 3:010.
COTTON AMENDMENT
The "Cotton areas", which are exempted from federal controls, but which must be controlled, as to outdoor advertising, by Kentucky regulations (or statutes) and which must be subject to national standards, are those areas "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 (prior) to July 1, 1956." [Emphasis added]. The "Kerr areas" are likewise exempt from federal controls, except that Kentucky was required to provide regulations for such industrial or commercial areas within incorporated cities, as of September 21, 1959. However, the "Kerr areas" are not subject to national standards. As relates to "Cotton areas", the above language is precisely that stated in P.L. 85-381, Section 122(a) (April 16, 1958) and P.L. 85-767, Section 131(a) (August 27, 1958). Note that the "Cotton areas" is rather an all embracing concept except for Kerr areas, as relates to the affected interstate highways. It (Cotton areas) makes no distinction (we are referring to federal law prior to the 1961 agreement) between zoned or unzoned areas or industrial and commercial or non-industrial areas and non-commercial areas, or between zoned or unzoned industrial and commercial areas. Cf. the present 23 U.S.C. § 131(d).
QUESTION
You ask whether or not the State of Kentucky, through its Department of Transportation, is free to implement the "Cotton Amendment" agreement by issuing an appropriate administrative regulation, and without the necessity for federal agreement or concurrence.
FEDERAL LAW
Section 122(a) of P.L. 85-381 outlines the national policy and standard to be observed in "Cotton areas" as relates to outdoor advertising:
(a) National Policy. -- To promote the safety, convenience, and enjoyment of public travel and the free flow of interstate commerce and to protect the public investment in the National System of Interstate and Defense Highways, it is hereby declared to be in the public interest to encourage and assist the States to control the use of and to improve areas adjacent to the Interstate System by controlling the erection and maintenance of outdoor advertising signs, displays, and devices adjacent to that system. It is hereby declared to be a national policy that the erection and maintenance of outdoor advertising signs, displays, or devices within six hundred and sixty feet of the edge of the right-of-way and visible from the main-traveled way of all portions of the 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, which shall include only the following four types of signs, and no signs advertising illegal activities:
(1) Directional or other official signs or notices that are required or authorized by law.
(2) Signs advertising the sale or lease of the property upon which they are located.
(3) Signs erected or maintained pursuant to authorization or permitted under State law, and not inconsistent with the national policy and standards of this section, advertising activities being conducted at a location within twelve miles of the point at which such signs are located.
(4) Signs erected or maintained pursuant to authorization in State law and not inconsistent with the national policy and standards of this section, and designed to give information in the specific interest of the traveling public."
See 23 U.S.C. § 131(k), providing that nothing shall prohibit a State from establishing standards imposing stricter limitations with respect to outdoor advertising.
Section 131(j) of Title 23 U.S.C. requires any State highway department to maintain outdoor advertising controls required under a bonus agreement with the federal government. The proper implementation of the bonus agreement by way of implementing state regulations is a condition precedent to receiving the bonus (federal interstate aid).
23 C.F.R. § 750.101 reads:
(a) In section 12 of the Federal-Aid Highway Act of 1958, Publ. 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.
23 C.F.R. § 750.151, relating to national standards for directional and official signs, reads:
"(a) In section 131 of title 23, United States Code, 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, United States Code.
KENTUCKY LAW
KRS 177.830 to 177.890 constitute the Billboard Advertising Law. See KRS 177.830(2) for definition of "Interstate highway. " KRS 177.841(1) provides in part that, except as otherwise provided in KRS 177.830 to 177.890, the erection or maintenance of any advertising device upon or within six hundred and sixty (660) feet of the right-of-way of any interstate highway or federal aid primary road is prohibited. KRS 177.850 states that the purpose of this legislation is, inter alia, to provide maximum visibility along interstate highways, prevent unreasonable distraction of operators of motor vehicles, to prevent confusion with regard to traffic lights, signs or signals, to preserve national scenic beauty of interstates, and to provide maximum safety of users of the interstates. KRS 177.860 provides that the Commissioner of Highways shall prescribe by regulations reasonable standards for advertising devices thereafter enumerated, including advertising devices within highway rights-of-way to provide directional information for business establishments offering goods and services in the interest of the traveling public. See KRS 177.865(1), relating to regulations covering the directional ads just mentioned.
However, KRS 177.865(2) expressly provides:
"Adoption of this section and KRS 177.860 shall in no way preclude or prevent the erection of highway advertising on exempted rights-of-way as provided in Public Law 85-381." (Bonus legislation). (See also 23 C.F.R., § 750.101).
In addition, KRS 177.890 provides that the Commissioner of Highways is authorized to enter into agreements with the United States Secretary of Transportation for the purpose of carrying out the national policy of promoting the safety, convenience and enjoyment of public travel and the free flow of interstate commerce and the protection of the public investment in the National System of Interstate and Defense Highways and Federal-Aid Primary Highways within the Commonwealth. Pursuant to KRS 177.890, the appellants, in Moore v. Ward, Ky., 377 S.W.2d 881 (1964), mentioned that the Commonwealth had covenanted (1961 agreement) that it will regulate outdoor advertising in areas adjacent to interstate highways in accordance with national standards promulgated by the United States Secretary of Commerce, in return for which the Commonwealth will receive federal road subsidies. The Court, in Moore v. Ward, upheld the constitutionality of the Billboard legislation and the Kentucky-federal agreement as being within the sovereign and statutory powers of the state. See Section 2, Kentucky Constitution. See also Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27.
Again, in Southeastern Displays, Inc. v. Ward, Ky., 414 S.W.2d 573 (1967), the Court of Appeals upheld a highway department regulation permitting advertising signs in commercially or industrially developed areas (Kerr Amendment) . The Court said that a reading of the regulation indicated that it is in furtherance of the purpose of the state legislation which specifically authorizes the adoption of such regulations. Thus the regulations did not constitute new legislation, as prohibited by Sections 27 and 28, Kentucky Constitution.
In Com., Department of Transportation v. Central Ky. Angus Ass'n., Ky.App., 555 S.W.2d 627 (1977), the Court of Appeals pointed to the constitutionality of the Billboard Act as held in Moore v. Ward, above. The Court wrote that in its opinion, the statutes (Billboard Act) envision a program under which only carefully selected signs, deemed by an administrative agency to be in the interest of the traveling public, shall be erected.
It is clear at this point that Kentucky statutory law was in effect sufficient to authorize the 1961 agreement. The courts so declared.
CONCLUSIONS
It is our opinion as follows:
(1) The Cotton Amendment concept has been implemented by proper Kentucky law. There was no affirmative duty of the State of Kentucky to permit any particular outdoor advertising near such interstate areas. To the contrary, the national policy restricts such advertising in favor of the traveling public and the general public interest. The federal law expressly provided that the state regulations could be even more restrictive than the federal standards. Thus the general prohibition against billboard advertising in Cotton areas in KRS 177.841 was entirely in harmony and consonant with the spirit and letter of the national policy and standards. See KRS 177.850. See KRS 177.860, relating to standards for billboard advertising. See also KRS 177.865(1), concerning regulations governing ads of goods and services. However, the reference in KRS 177.865(2) to the Bonus law of P.L. 85-381 in no way suggests that Kentucky was required to permit advertising. Rather, the national policy was simply that if a state was to permit certain outdoor advertising in Cotton areas, national standards must be observed. Thus we believe that national standards have been observed, and the contractual commitment of 1961 has been met by the aforementioned state statutes. The aforementioned Kentucky appellate cases in no way suggest that Kentucky has been remiss in the particular of implementing the Cotton areas concept. 603 KAR 3:010 relates only to the Kerr areas. Such regulation was enacted within the reasonable discretion of the Department of Transportation.
(2) The answer to your question is that no further implementation of the Cotton areas concept is required.