Non-Regulatory Supplement - Federal-Aid Policy Guide, Transmittal 35

Guidelines for Bonus States - Interstate System Only

1. Section 131(j) of Title 23 U.S.C. provides that any State which entered into a bonus agreement as of June 30, 1965, may remain eligible to receive bonus payments provided it maintains the control required under such agreement along the Interstate System. It further provides that bonus States are not exempt from controlling outdoor advertising signs as otherwise provided in Section 131.

2. Therefore, if a State elects to remain eligible for bonus payments and in compliance with Section 131, as amended, it must continue to carry out its bonus agreement along the Interstate System except where Section 131 requires more stringent controls on the system.

   1. Effect on Bonus Agreements. The effect of Section 131, as amended, on bonus agreement provisions is as follows:

      1. Cotton Areas - Bonus agreements exempted so-called "Cotton Areas." These are areas adjacent to an Interstate Highway where any part of the highway right-of-way was acquired prior to July 1, 1956. The Highway Beautification Act of 1965 is more stringent in that it has no such exemption. Control Required - Signs in Cotton areas must be prohibited unless such areas are zoned or unzoned commercial or industrial areas.

      2. Kerr Areas - Bonus agreements exempted the so-called "Kerr Areas." These are areas adjacent to an Interstate highway where it traverses 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 where it traverses other areas where the land use as of September 21, 1959, was clearly established by State law as industrial or commercial. The Highway Beautification Act of 1965 permits signs in such areas, but it does not exempt signs from control. Control Required - The bonus agreement is controlling with regard to the number and size of commercial and industrial zones to be recognized, but signs in Kerr areas are subject to size, lighting, and spacing requirements of the Highway Beautification Act of 1965.

      3. The 1958 bonus agreement National Standards permitted four classes of signs in protected areas:

         1. Class 1 - Directional and Official Signs. Control Required - Directional and official signs were subject to regulation, but were not, in fact, regulated under the 1958 National Standards. Signs of this category are subject to National Standards under the 1965 Act (23 CFR 750, Subpart B) and therefore these provisions are controlling;

         2. Class 2 - On-Premise Signs. Control Required - On-Premise (on property) signs are exempt from control under the Highway Beautification Act of 1965, but they are subject to control under the 1958 bonus agreement National Standards. However, the 1958 National Standards exclude such signs from control if they are located in Cotton or Kerr areas;

         3. Class 3 - Signs Within 12 Miles of Advertised Activities. Control Required - Signs within 12 air-miles of the advertised activity are not permitted unless they are located in commercial or industrial areas or qualify as official or directional signs permitted under 23 U.S.C. 131(c) because the Highway Beautification Act of 1965 does not permit such a category; and

         4. Class 4 - Signs in the Specific Interest of the Traveling Public. Control Required - Signs in the specific interest of the traveling public are not permitted unless they are located in commercial or industrial areas or qualify as official or directional signs permitted under 23 U.S.C. 131(c) because the Highway Beautification Act of 1965 does not permit such a category.

   2. On-Premise Sign Measurements in Bonus States. On-premise signs located more than 50 feet from the advertised activity are subject to control in bonus States in accordance with 23 CFR 750, Subpart A.

      1. When the advertised activity is a business, commercial, or industrial land use, the distance shall be measured from the regularly used buildings, parking lots, storage or processing areas, or other structures which are essential and customary to the conduct of the business. It shall not be measured from driveways, fences, or similar facilities.

      2. When the advertised activity is a noncommercial or non-industrial land use such as a residence, farm, or orchard, the distance shall be measured from the major structures on the property.

   3. Bonus Program. 23 CFR 1.35 and 23 CFR 750.713 contain additional provisions for the Bonus Program.

Guidelines Concerning Destruction of Trees and Violations of Access Control

1. Instances involving the destruction of trees and shrubs on the right-of-way in order to increase or enhance the visibility of an outdoor advertising sign and instances involving the erection and/or maintenance of signs adjacent to Interstate highways by access from the highway right-of-way are contrary to the provisions of 23 CFR 1.23 and State laws and regulations. Trespassing on the right-of-way to effect the trimming or destruction of such trees or shrubs, or the maintenance or erection of signs, is prohibited. This provision is intended to preserve the safety and integrity of the right-of-way for highway purposes.

2. The State highway department should take all legal and administrative action at its disposal to abate these practices, including action to recover damages to landscaping, sodding, fences, and other appurtenances to the highway. Additionally, it is recommended that the States consider the following administrative remedies:

   1. revocation of permits for any signs so involved,

   2. denial of permits for signs which can only be erected or maintained as a practical matter from the highway right-of-way or which could not be seen from the highway due to existing landscaping on the right-of-way,

   3. certification on permits and/or licenses to the effect that the sign owner will not engage in these practices,

   4. performance bonds in permit or licensing procedures to guarantee compliance, and

   5. a specific prohibition in State outdoor advertising control regulations.

3. Division offices should report to the Washington Headquarters Office of Real Estate Services (HEPR) promptly all such instances which come to their attention together with action being taken by the State.

4. While the issue of vegetation clearance on the right-of-way is related to land use on the other side of the right-of-way fence, it is often connected with outdoor advertising sign locations. In 1977 FHWA issued guidance which permitted, but did not require, States to enter into agreements with billboard companies to clear trees and other vegetation on the public highway right-of-way to enhance the visibility of billboards. In May, 1990 as one of our scenic enhancement initiatives, we clarified our 1977 memorandum and stated that because it is Federal Highway Administration policy to be sensitive to environmental concerns, such vegetation clearance could no longer be endorsed. In November 1992, FHWA further stated that its policy is to assist States to maintain and preserve the roadside in a safe, pleasant, and forgiving manner for the highway user, but overall maintenance of the roadway and roadside is largely the responsibility of the States.

5. The 10 percent penalty authorized by the Highway Beautification Act for a State's failure to maintain effective control over outdoor advertising on the Interstate and Federal-aid primary Systems is not related to the issue of proper maintenance of the highway right-of-way as such vegetation clearance takes place within the right-of-way.

Suggested Criteria for Determining Which Signs Have Been Erected With the Purpose of Their Message Being Read From the Main-Traveled Way

1. Traffic counts, sign angle and size, message content, physical obstructions, and similar factors.

2. Distance from the controlled highway in relation to the size of the sign.

3. Exposure time (for example, would signs permitting glance views of a few seconds on highways with speed limits of 55 miles per hour be deemed readable?).

4. The sales value of the sign attributable to advertising circulation on the controlled highway under the criteria of an independent circulation audit agency where such is available.

Measurements

1. Distance from the edge of the right-of-way should be measured horizontally along a line perpendicular to the centerline of the highway.

2. Centerline means (1) a line equidistant from the edges of the median separating the main-traveled ways of a divided highway, (2) the centerline of the main-traveled way of a nondivided highway, or (3) the centerline of each of the main-traveled ways of a divided highway separated by more than the normal median width or constructed on independent alignment.

3. The minimum distance between sign structures on the same side of the highway should be measured along the nearest edge of pavement between points directly opposite the closest points of the signs as applied to sign structures located on the same side of the highway.

4. In those instances where the minimum distance between sign structures apply to signs facing the same direction of travel which may be on opposite sides of the highway, such minimum distances should be measured along the center line of the highway between points directly opposite the closest points of the signs.

5. The areas of a sign should be measured by the smallest square, rectangle, triangle, circle, or combination thereof, which will encompass the entire sign, exclusive of base, apron, and supports, but including border and trim, except where the base or apron has copy thereon in which case the base or apron should be included in the area.