Van v. Travel Information Council

• Citation: 52 Or.App. 399,628 P.2d 1217
• Decision Date: 26 May 1981
• Docket Number: No. CA,CA
• Parties: , 7 Media L. Rep. 1772 Roger M. VAN and Michael Fitzgerald, Petitioners, v. The TRAVEL INFORMATION COUNCIL of the State of Oregon, Respondent. 18553.
• Court: Court of Appeals of Oregon

Page 1217

628 P.2d 1217

52 Or.App. 399, 7 Media L. Rep. 1772

Roger M. VAN and Michael Fitzgerald, Petitioners, v. The TRAVEL INFORMATION COUNCIL of the State of Oregon, Respondent.

No. CA 18553.

Court of Appeals of Oregon.

Argued and Submitted Nov. 12, 1980.

Decided May 26, 1981.

Steven L. Philpott, Eugene, argued the cause for petitioners. On the brief were Mary A. Marshall and Armstrong & Philpott, P. C., Eugene.

William F. Gary, Deputy Sol. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., and John R. McCulloch, Jr., Sol. Gen., Salem.

Before GILLETTE, P. J., ROBERTS, J., and CAMPBELL, J. Pro Tem.

GILLETTE, Presiding Judge.

This is a proceeding pursuant to ORS 183.400(1). ¹ Petitioners ² challenge that portion of an administrative rule adopted by the Travel Information Council which limits the right to erect temporary political signs on land adjacent to a state highway to a period of sixty days preceding an election. OAR 733-20-050(3)(a), infra. Petitioners claim that the rule violates the First Amendment and the equal protection clauses of both the Oregon and United States Constitutions. We agree and therefore declare the rule invalid. ORS 183.400(4). ³

Before turning to an examination of petitioners' specific claims, it is necessary to understand the federal and state statutory scheme of which the challenged regulation is a part. OAR 733-20-050 was promulgated by the Oregon Travel Information Council pursuant to authority granted by the Oregon Motorist Information Act of 1971. ORS 377.700 to 377.840 and 377.992. That Act was enacted in response to the 1965 federal Highway Beautification Act. 23 U.S.C. § 131 et seq.

The federal Act is designed to persuade the states, by means of financial incentives, to use their police power to control the erection and maintenance of outdoor advertising structures adjacent to the Interstate and primary highway systems. Its purpose is "to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty." 23 U.S.C. § 131(a). The Act provides for the reduction of federal aid highway funds by an amount equal to 10 percent of the sum which would otherwise be apportioned on or after January 1, 1968, to any state which the Secretary of Transportation determines has not made provision for "effective control" of the erection and maintenance of outdoor advertising structures. 23 U.S.C. § 131(b). ⁴ "Effective control" means that signs, displays, or devices within the prescribed area shall 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 the landmark signs, including signs on farm structures or natural surfaces, of 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 of 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." 23 U.S.C. § 131(c), as amended.

The Act further provides that, pursuant to an agreement between a state and the Secretary of Transportation, advertising structures may be erected and maintained within the proscribed distance in areas which are zoned industrial or commercial under authority of state law or within unzoned commercial or industrial areas. States retain the full authority to zone areas for commercial or industrial purposes, and the actions of the states in this regard are to be accepted for purposes of the Act. Advertising structures erected pursuant to this section are subject to certain size, lighting and spacing requirements, which are to be determined by agreement between the states and the Secretary. 23 U.S.C. § 131(d), as amended.

The Act also provides for payment of just compensation to owners of outdoor advertising signs along the Interstate and primary system upon the removal of certain kinds of advertising structures, with the federal government providing 75 percent of the compensation. 23 U.S.C. § 131(g). There is a grace period of 5 years for the removal of structures previously lawfully erected. 23 U.S.C. § 131(e).

In compliance with the federal Act, the Oregon Motorist Information Act provides:

"A person may not erect or maintain an outdoor advertising, direction or on-premises sign visible to the traveling public from a state highway, except where permitted outside the right-of-way of a state highway, * * *." ORS 377.715.

In order to erect, maintain or replace an outdoor advertising sign, an annual permit must first be obtained. ORS 377.725(1). An annual fee, dependent upon the size of the sign, must accompany each application for a permit. ORS 377.725(5). The Oregon Act, as mandated by the federal statutes, is designed to phase out outdoor advertising structures. Thus, no permit for the erection of any new outdoor advertising sign could be issued after June 12, 1975. ORS 377.725(4). All signs must comply with certain size, spacing, lighting, form, and other like requirements. See ORS 377.720, 377.727, 377.745, 377.750, 377.755. Signs must not interfere with a driver's view of official traffic signs or his or her view of traffic. ORS 377.720(b). The express purposes of the Oregon Act, insofar as relevant, are "to promote the public safety, to preserve the recreational value of public travel on state's highways, and to preserve the natural beauty and aesthetic features of such highways and adjacent areas * * *." ORS 377.705.

Certain signs are exempted by statute from the Oregon Act's permit and location requirements. These include signs permitted by the federal Act, such as directional and official traffic signs and signs advertising the sale or lease of property upon which they are located. Certain other temporary signs are also allowed, e. g., temporary signs providing directions to places of business offering for sale agricultural products produced on the premises in question, signs maintained for not more than two weeks announcing an auction or a campaign, drive or event of a civic, philanthropic or educational organization; signs maintained for not more than six weeks by state and county fairs, rodeos, roundups and expositions; and temporary political signs erected or maintained by candidates or political committees on private property if the sign is removed within 30 days after the date of the election for which erected. The full text of the exemptions, ORS 377.735(1), is set out in the margin. ⁵

ORS 377.735(2) permits the Travel Information Council to adopt regulations as to the size, number and general location and as to the time and procedure for erection and removal of temporary signs. ⁶ Signs erected or maintained within a city more than 660 feet from the nearest edge of the right-of-way of a state highway are also exempt signs unless the sign is designed to be viewed primarily from the state highway. ORS 377.735(3). All exempted signs must still comply with any applicable federal regulations. ORS 377.735(1).

Pursuant to ORS 377.735(2), the Council has adopted regulations, including the one before us, relating to the erection and maintenance of exempt signs. These regulations vary according to the type of sign and pertain to location, size, form and, in some instances, number and time limit. See OAR 733-20-005 to 733-20-050. The following signs have no durational limits: church and civic organization signs, residential directional signs, signs of a governmental unit, memorial signs and tablets and church directional signs. Signs advertising the sale of property on which they are located and temporary directional signs advertising the sale of agricultural products are not limited as to time of erection but must be removed upon completion of the sale of the product. Other signs have more specific limitations: temporary civic signs must be removed within two weeks of installation, but not later than 24 hours after completion of the advertised event; exposition, fair and rodeo signs must be removed six weeks after erected but, not later than 24 hours after closing of the event; and temporary political signs may not be erected prior to 60 days preceding the date of the election to which they pertain and must be removed within 30 days after the election.

Petitioners challenge the 60 day limitation on temporary political signs as set forth in OAR 733-20-050(3)(a), ⁷ arguing that it violates their right to freedom of speech. ⁸ In this regard, petitioners argue that, because political speech is involved, erection of signs of this type is entitled to absolute protection, i. e., it cannot be regulated at all. Secondly, they argue that, assuming some regulation is permissible, the regulatory limit in question here does not qualify as a valid "time, place and manner" restriction. Alternatively, they argue that, even if the rule is construed as a valid time,...