Towns can ban billboards along state highways

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If you get lost on your way to the House on the Rock, it’s not the owner’s fault; he’d like to put up billboards to guide you there.

Unfortunately for him (and for you if you happen to get lost), state statute sec. 84.30 does not preempt municipalities from banning directional billboards along state highways.

However, in its Mar. 20 opinion holding to that effect, the Court of Appeals suggested in a footnote that it is possible municipalities have no such power for the statute to preempt in the first place.

The federal Highway Beautification Act of 1965 requires that, as a condition for receiving federal highway funds, states adopt standards applicable to signs viewable from interstate and federal-aid highways.

To comply with the funding requirement, the State of Wisconsin passed sec. 84.30.

The statute provides, in relevant part to this case, that no directional sign may be erected or maintained, except those “which are required or authorized by law,” and which comply with rules promulgated by the Wisconsin Department of Transportation (DOT).

The statute also requires that the DOT rules shall not be inconsistent with, nor more restrictive than, the national standards.

The town of Spring Valley adopted a zoning ordinance banning directional signs in residential and agricultural areas.

Arthur Donaldson, the owner of the House on the Rock, wanted to erect a sign on property he owned along State Highway 11, providing motorists directions to the attraction.

When the town would not allow erection of the billboard, he brought suit against it.

The circuit court granted summary judgment in favor of Donaldson, holding that sec. 84.30(3)(a) preempts municipalities from enacting more stringent requirements than the state statute provides.

The town appealed, and the Court of Appeals reversed, in a decision by Judge Paul G. Lundsten.

The court rejected Donaldson’s argument that the maximum signage permitted by federal law has been chosen by the state Legislature as the maximum signage required in Wisconsin.

Instead, the court read the statute as creating two independent conditions: a sign must be “required or authorized by law”; and a sign must comply with the Wisconsin DOT rules.

The court read the first requirement as permitting municipalities to set their own more restrictive rules.

The court read the phrase, “authorized by law,” independent of the condition that a sign comply with DOT rules. Thus, while the Legislature has precluded the DOT from adopting requirements stricter than are required by federal law, nothing in the statute bars municipalities from doing so.

To read the statute to preempt stricter municipal laws, the court concluded, would render the condition “required or authorized by law” meaningless.

Analysis

A footnote by the court suggests a possible argument for attorneys seeking to avoid the result in this case in future cases.

Footnote 3 begins, “We assume, without deciding, that in the absence of Wis. Stat. sec. 84.30(3), the [t]own has the authority to ban directional signs visible from highways.”

However, that assumption is not necessarily valid.

The court noted that, in the circuit court, the town based its authority on secs. 60.10(2)(c), 60.22(3), and 61.34(1).

In effect, those statutes give towns and villages broad police powers that “shall be limited only by express language.”

However, a long-standing countervailing principle provides that the powers of villages and towns are derived solely from the state through the Legislature. City of Fond du Lac v. Town of Empire, 273 Wis. 333, 77 N.W.2d 699, 701 (1956).

The question thus is whether or not the power to regulate billboards along state highways through local ordinances is a local police power that does not need express authorization from the state.

Looking to other jurisdictions, the general rule is very well settled that local governments are not preempted by state law from enacting stricter regulations than those set out by the federal law or state law.

McQuillin states the rule thus: “At one time, esthetic considerations alone generally could not sanction restrictions relating to the erection and maintenance of billboards and other outdoor advertising structures. That is no longer the case.” 7 McQuillin, Municipal Corporations (3d ed.), p. 532, sec. 24.381.

Throughout the country, local governments have been given the power to regulate billboards for aesthetic reasons, whether via state statute, constitutional amendment, judicial fiat, or otherwise.

So, if the modern trend in the rest of the nation is any indication how Wisconsin courts would rule if squarely presented with the issue, the property owners’ argument would seem to have little hope.

However, a different state statute from the one at issue in this case provides quite a bit of hope.

Section 60.23(29) provides that a town may, “Enact and enforce an ordinance, and provide a forfeiture for a violation of the ordinance, that regulates the maintenance and construction of billboards and other similar structures on premises abutting on highways in the town THAT ARE MAINTAINED BY THE TOWN OR BY THE COUNTY in which the town is located so as TO PROMOTE THE SAFETY OF PUBLIC TRAVEL on the highways (emphases added).”

In the case at bar, the highway at issue is a state highway, not maintained by the town or county. In addition, the ordinance is not based on safety concerns, but solely aesthetic ones.

The most reasonable inference to be drawn from this statute is that the Legislature did not intend to permit towns to regulate billboards on state highways for aesthetic reasons, and the town’s billboard ordinance is invalid, or at least unenforceable as to property that abuts them.

As a result, property owners may be able to succeed in defeating such ordinances, even in cases that are factually indistinguishable from this one.