CHAPTER 276

AN ACT TO AMEND CHAPTER 11, TITLE 17, DELAWARE CODE, RELATING TO OUTDOOR ADVERTISING AND THE CONTROL THEREOF IN AREAS ADJACENT TO THE PUBLIC HIGHWAYS AND PUBLIC LANDS OF THIS STATE.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Chapter 11, Title 17, Delaware Code, is hereby amended by striking out said Chapter 11 and substituting therefor a new Chapter 11 to read as follows:

CHAPTER 11.

REGULATION OF OUTDOOR ADVERTISING

Subchapter 1. General Provisions

§ 1101. Purpose and policy

The rapid growth in the use of motor vehicles throughout this State and the concurrent extension of highways built or improved at public expense has led to great changes in the extent and character of public travel. The investment of this State, municipalities and towns in good roads, parks, parkways, playgrounds and reservations, and the safety, convenience and welfare of the inhabitants have been affected.

The regulations and control of outdoor advertising signs, displays and devices of all kinds is provided for in order to promote the general welfare, especially in the particulars hereinafter recited.

The people of this State would suffer economically if the State failed to participate fully in the allocation and apportionment of federal-aid highway funds since a reduction in federal-aid highway funds would necessitate increased taxation to support and maintain the State road program and system. It is, consequently, the intention of this act, among other things, to provide a statutory basis for regulation of outdoor advertising consistent with the public policy relating to areas adjacent to federal-aid Interstate and Primary Systems declared by Congress of the United States, in Title 23, United States Code.

§ 1102. Scope and definitions

(a) The powers and authority granted in this chapter are in derogation of no other powers or authority granted by or created or exercised under any other statute, or by a planning or zoning board or authority, or other public officer, but shall be construed as in addition to any such power or authority, which shall remain unaffected.

(b) As used in this chapter:

(1) "Outdoor advertising" or "outdoor advertising signs, displays and devices" shall include any outdoor sign, display, device, picture, emblem, trademark, figure, painting, drawing, message, placard, poster, billboard, light or other thing which is designed, intended or used to advertise, to inform or to attract the attention of the traveling public.

(2) "Interstate System" means that portion of the National System of Interstate and Defense Highways located within this State, as officially designated, or as may hereafter be so designated, by the Department and approved by the Secretary of Transportation of the United States, pursuant to the provisions of Title 23, United States Code, "Highways".

(3) "Primary System" means that portion of connected main highways of this State officially designated as such, or as may hereafter be designated as such, by the Department and approved by the Secretary of Transportation of the United States pursuant to the provisions of Title 23, United States Code, "Highways".

(4) "A controlled area" shall mean, and "controlled areas" shall include, any area inside the boundaries of this State which is adjacent to and within 660 feet of the edge of the right-of-way of a highway of the Interstate System or the Primary System.

(0) "The laws of this State" shall include a provision of the Constitution or statutes of this State, or an ordinance, rule or regulation enacted or adopted by an agency or political subdivision of this State pursuant to the Constitution or Statutes.

(6) "Safety rest area" means an area or site established and maintained within or adjacent to the right-of-way by or under public supervision or control, for the convenience of the traveling public.

(7) "Information center" means an area or site established and maintained at a safety rest area for the purpose of informing the public of places of interest within the State and providing such other information as the Department may consider desirable.

(8) "Visible" means capable of being seen (whether or not legible) without visual aid by a person of normal visual acuity.

(9) "Erect" means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any way bring into being or establish, but it shall not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance of a sign or sign structure.

(10) "Commercial or industrial activities for purposes of unzoned commercial and industrial areas" mean those activities generally recognized as commercial or industrial by zoning authorities in this State, except that none of the following activities shall be considered commercial or industrial:

(1) Outdoor advertising structures.

(2) Forestry, ranching, grazing and farming including, but not limited to, wayside fresh produce stands.

(3) Transient or temporary activities.

(4) Activities more than 660 feet from the nearest edge of the right-of-way along the Interstate and Federal Aid Primary route.

(5) Activities conducted in buildings principally used as a residence.

(6) Railroad tracks and minor sidings.

(11) "Zoned commercial or industrial areas" mean those areas which are zoned for business, industry, commerce or trade pursuant to a State or local zoning ordinance or regulation.

(12) "Unzoned commercial or industrial areas" mean those areas not zoned by any State, county or local ordinance or regulation on which there is located one or more permanent structures devoted to a business activity or on which a commercial or industrial activity is actually conducted, whether or not a permanent structure is located thereon, and the area along the highway extending for a radius of 1500 feet outward and beyond the edge of such activity. All measurements shall be from the outer edges of the regularly used buildings, parking lots, stores or processing areas of the commercial or industrial activities, not from the property line of the activities, and shall be along or parallel to the pavement of the highway.

§ 1103. Control criteria for size; spacing and lighting

In order to provide criteria for the size, spacing and lighting of signs which effectively control the erection of outdoor advertising signs, displays and devices erected subsequent to the effective date of this Chapter, other than those advertising the sale or lease of the property on which they are located, or activities conducted thereon, the following criteria shall be utilized by the Department in making, publishing and enforcing regulations.

(a) In zoned commercial and industrial areas, the Department shall certify to the administrator as notice of effective control, that there has been established within such areas regulations which are enforced with respect to the size, lighting and spacing of outdoor advertising signs, displays and devices. In such areas, the size, lighting and spacing requirements set forth below shall not apply.

(b) In all other zoned and unzoned commercial and industrial areas, the criteria set forth below shall apply:

(1) Size of Signs

(a) The maximum area for any one sign shall be 1,200 square feet with a maximum height of 25 feet and maximum

length of 60 feet, inclusive of any border and trim but excluding ornamental base or apron, supports and other structural members.

(b) The area shall be measured by the smallest square, rectangle, triangle, circle or combination thereof which will encompass the entire sign.

(c) A sign structure may contain one or two signs per-facing and two sign facings may be placed back to back or V-Type at one location but in no event shall the total area of any facing exceed 1,200 square feet.

(d) A sign which exceeds 600 square feet in area may not be on the same sign facing with any other sign.

(2) Spacing of Signs

(a) Interstate and Federal-aid Primary Highways

(1) Signs may not be located in such a manner as to obscure, or otherwise physically interfere with the effectiveness of an official traffic sign, signal, or device, obstruct or physically interfere with the driver's view of approaching, merging, or intersecting traffic.

(b) Interstate Highways and Controlled Access Highways on the Federal-aid Primary System

(1) No two structures shall be spaced less than 500 feet apart.

(2) Outside of villages and cities, no structure may be located within 500 feet of an interchange, intersection at grade, safety rest area or information center (measured along the Interstate or freeway from the beginning or ending of pavement widening at the exit from or entrance to the main traveled way).

(c) Non-Controlled Access Federal-Aid Primary Highways

(1) Outside of villages and cities—no two structures shall be spaced less than 300 feet apart.

(2) Within villages and cities—no two structures shall be spaced less than 100 feet apart.

(d) The above spacing-between-structures provisions do not apply to structures separated by buildings or other obstructions in such a manner that only one sign facing located within the above spacing distances is visible from the highway at any one time.

(e) Official and "on premise" signs, as defined in Section 131 (c) of Title 23, United States Code, and structures that are not lawfully maintained shall not be counted nor shall measurements be made from them for purposes of determining compliance with spacing requirements.

(f) The minimum distance between structures shall be measured along the nearest edge of the pavement between points directly opposite the signs along each side of the highway and shall apply only to structures located on the same side of the highway.

(3) Lighting

Signs may be illuminated, subject to the following restrictions:

(a) Signs which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information.

(b) Signs which are not effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled ways of the Interstate of Federal-aid primary highway and which are of such intensity or brilliance as to cause glare or to impair the vision of the driver of any motor vehicle, or which otherwise interfere with any driver's operation of a motor vehicle are prohibited.

(c) No sign shall be so illuminated that it interferes with the effectiveness of, or obscures an official traffic sign, device, or signal.

(d) All lighting shall be subject to any other provisions relating to lighting of signs presently applicable to all highways under the jurisdiction of the State.

(4) The State and local political subdivisions shall have full authority under their own zoning laws to zone areas for commercial or industrial purposes and the action of the State and local political subdivisions in this regard will be accepted for the purposes of this Chapter. At any time that a political subdivision adopts regulations which include the size, lighting and spacing of outdoor advertising, the State shall so certify to the Administrator, and control of outdoor advertising in commercial or industrial areas will transfer to subsection (a) of this section.

§ 1104. Enforcement of chapter; rules and regulations, examinations; territorial limitations

(a) The Department shall:

(1) Enforce the provisions of this chapter; and

(2) Make, publish and enforce such regulations for the proper control and restriction of outdoor advertising signs, displays and devices as may be necessary or advisable to implement the policy and accomplish the purposes of this chapter.

Such regulations shall exclude from their operation any areas in which the Department finds bona fide zoning has been established which regulates the erection and maintenance of outdoor advertising signs, displays and devices, including the size, lighting and spacing thereof, in a manner consistent with the purposes of this chapter and the public policy relating to controlled areas declared by the Congress of the United States in Title 23, United States Code.

(b) All employees of the Department, or any peace officer of this State, when so directed by the Department or its officers, may enter into and upon any land or building to make any examination or survey which the Department deems necessary to the effective administration of the provisions of this chapter, or to enforce the provisions of this chapter.

(c) The territory under the jurisdiction of the Department, for the purposes of this chapter, shall include all of this State outside the corporate limits of any incorporated city or town and all controlled areas within such corporate limits.

(d) The provision of this chapter shall apply only to outdoor advertising signs, displays and devices situate outside the corporate limits of any incorporated city or town in this State, and to those outdoor advertising signs, displays and devices situate in controlled areas within such corporate limits.

§ 1105. Application and issuance of permits; revocation

(a) Except as otherwise provided, no person, whether engaged in the business of outdoor advertising or not, shall erect, maintain or display any outdoor advertising sign, display or device, above or upon real property, without first obtaining a permit from the Department.

(b) A separate application for a permit shall be made for each separate outdoor advertising sign, display or device on a form furnished by the Department, which application shall contain such information as it may require. Each application shall be accompanied by the written consent of the owner or tenant of the real property upon which such sign, display or device is to be erected or maintained. No new application shall be made for a permit to maintain any existing outdoor advertising sign, display or device or to renew a permit.

(c) The Department, in accordance with the provisions of this chapter, shall issue or renew permits for a period of at least one year for the erection and maintenance of all types of outdoor advertising signs, displays and devices; provided, however, no permit shall be issued for the erection or construction of any sign which would be a violation of local law or ordinance at the time application is filed.

(d) The Department may establish and collect fees for the issuance of permits and renewals thereof. The amount of such charge shall be so fixed as to provide the Department with the funds deemed necessary by it to defray the costs of the administration of this chapter.

(e) When an application for a permit or for a renewal thereof is made by a nonresident or by a foreign corporation engaged in the business of outdoor advertising, the Department, in its discretion, as a condition to the issuance of such permit or renewal, may require such corporation to deposit with the Department a bond, in an amount and with surety to be approved by the Department, to secure such corporation's compliance with the provisions of this chapter.

§ 1106. Advertising identification; exception

The Department shall require that each outdoor advertising sign, display or device shall bear an identifying tag or plate to be issued by the Department; and if erected or maintained by a person engaged in the business of outdoor advertising that it shall also bear his name and the Department shall make suitable provisions for the details thereof; excepting, however, all signs, devices or announcements which a telephone, telegraph or electric power company places on its poles to indicate danger or ownership thereof, or on buildings or structures, to indicate the places where its services are available or its offices are situated, or crossing signs, devices or announcements erected or maintained by incorporated railroad or railway companies or caution crossing and danger stop signs erected by utility companies or municipal authorities.

§ 1107. Removal upon expiration or revocation of permit

All outdoor advertising signs, displays and devices shall be removed by the outdoor advertiser or other person erecting, owning maintaining or displaying the same, or, in the event of his default, by the owner or tenant of the premises upon which any such sign, display or device is located, within 30 days from the date of the expiration or revocation of the permit for the same.

§ 1108. Unlawful to remove or damage road markers, etc. or place advertising on highways

(a) No person shall willfully or maliciously displace, remove, destroy, or injury a mile-board, mile-stone, danger sign, or signal, guide-sign, or guide-post or any inscription thereon, lawfully within the right-of-way of a public highway.

(b) No person shall in any manner paint, print, place, put or affix an advertisement upon or to any rock, stone, tree, fence, stump, pole, mile-stone, danger signal, guide-sign, guide-post, building or other object lawfully within the right-of-way of any public highway.

§ 1109. Location and condition of advertising regulated

(a) Subject to the provisions of subsection (c) of this section, no outdoor advertising sign, display or device except a directional or warning sign erected by or with the approval of the Department shall be erected subsequent to the passage of this act:

(1) Within 25 feet of the right-of-way line of any public highway, if visible from any portion of the same;

(b) Subject to the provisions of subsection (c) of this section, no outdoor advertising sign, display or device except a directional or warning sign erected by or with the approval of the Department shall be erected or maintained:

(1) On the right-of-way of any public highways;

(2) Within 25 feet of any public playground, school or church, if visible from any portion of the same;

(3) Upon the inside curves or at or near a railroad crossing or a highway intersection, if such would obstruct or interfere with the view of a train, locomotive, streetcar or other vehicle at or approaching such crossing or intersection or so as to obstruct the view of such intersection or crossing or of a turn or a sharp change in alignment or in any manner dangerous to the public;

(4) If such sign, display or device is obsolete or is not in good physical condition;

(5) If such sign, display or device is not securely affixed to a substantial structure or in any way endangers traffic on any public highway.

(c) Subsection (a) (1) of this section shall not apply to outdoor advertising signs, displays or devices which advertise the sale or lease of, or activities conducted upon, the real property where they are located; or any school bus waiting shelter displaying outdoor advertising signs.

§ 1110. Forbidden advertising

No outdoor advertising signs, displays or devices shall display copy which violates any Federal or State law, or which is offensive to the moral standards of the community at the time the copy is offered for display, or which is false, misleading, or deceptive.

§ 1111. Public nuisance; abatement

Any outdoor advertising sign, display or device, which is erected or maintained in violation of this chapter or any regulations lawfully adopted pursuant to this chapter, is declared to be a public nuisance and may be forthwith removed, obliterated or abated by the Department, its employees or any peace officer of this State, when such violation is not corrected after 30 days written notice of the violation to the owner of the sign, display or device or to the owner, lessee or occupant of the land upon which said sign, display or device is located. All costs incurred by the Department in abating a nuisance pursuant to this section shall be the responsibility of the owner of the sign, display or device, and the Department shall have an action at law to recover such costs, as well as the expenses of suit.

§ 1112. Injunctive relief

The Department or any taxpayer may maintain an action for an injunction to restrain any violation or threatened violation of the provisions of this chapter or of any regulation lawfully adopted pursuant thereto.

§ 1113. Violations and penalties

Whoever violates the provisions of this chapter or any regulation lawfully adopted pursuant to this chapter shall be fined not less than $10.00 nor more than $50.00.

Each day that a violation is allowed to continue, after 30 days written notice of its existence, shall constitute a separate offense.

§ 1114. Signs and announcements excepted from provisions of this subchapter

The classes of signs described below are excepted from all provisions of this subchapter other than the provisions of Section 1104 (a) (2) insofar as those provisions may be implemented by regulations controlling and restricting outdoor advertising signs, displays and devices in controlled areas:

(1) A sign erected or maintained upon property to identify a business conducted thereof provided such sign does not exceed 30 square feet in area and is placed on the premises.

(2) A sign containing 6 square feet or less upon real property stating that the property, or a part thereof, is for sale or for rent.

(3) A notice or advertisement required by law in any legal proceeding or put upon by public authority.

(4) A danger or precautionary sign containing 2 square feet or less relating to the premises or a sign warning of the condition of or danger of travel on a highway.

(5) Any notice or sign of any railroad or other transportation or transmission or communication company necessary for the direction or information or safety of the public.

(6) Any sign containing 6 square feet or less and bearing announcement of any town, village or city advertising itself or local industries, meetings, buildings, historical markers or attractions, provided the same is maintained at public expense.

Subchapter 2.

Areas Adjacent to Highways of the Interstate and

Primary Systems

§ 1121. Limitations of outdoor advertising in controlled areas

Subject to the provisions of Section 1122 of this Title, no outdoor advertising sign, display or device, any part of the advertising, informative or attention attracting contents of which is visible from the main-traveled way of a highway of the Interstate System or Primary System shall be erected or maintained within a controlled area, unless it shall come within one or more of the following categories:

(1) Directional and other official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historic attractions as authorized or required by the laws of this State.

(2) Signs, displays and devices advertising the sale or lease of the real property upon which they are located.

(3) Signs, displays and devices advertising activities conducted on the real property upon which they are located.

(0) Signs, displays and devices located either (1) in controlled areas adjacent to the Interstate System and within the boundaries of incorporated municipalities, as such boundaries existed on September 21, 1959, wherein the use of real property is subject to municipal regulation and control, which are zoned industrial or commercial, or (2) in other controlled areas adjacent to the Interstate System zoned industrial or commercial which were zoned industrial or commercial as of September 21, 1959.

(1) Signs, displays and devices located in controlled areas adjacent to highways of the Primary System which are zoned industrial or commercial.

(2) Signs, displays, and devices located in unzoned commercial and industrial controlled areas adjacent to highways of the primary system and defined by regulations to be promulgated by the Department.

(3) Any school bus waiting shelter displaying a sign thereon provided such sign does not exceed 30 square feet in area and with a limit of 2 signs per shelter.

Such outdoor advertising signs, displays and devices as are permitted in controlled areas under this section shall be erected and maintained only in conformity with such applicable regulations as may be promulgated by the Department under Section 1104 of this chapter.

§ 1122. Removal of nonconforming advertising; fair compensation

(a) Just compensation shall be paid upon the removal of the following outdoor advertising signs, displays and devices:

(1) Those lawfully in existence on the effective date of this Chapter;

(2) Those lawfully on any highway made a part of the Interstate of Federal Aid Primary System on or after the effective date of this Chapter; and

(3) Those lawfully erected on or after the effective date of this Chapter.

(b) The Department is hereby authorized to acquire the necessary right in and to property and is directed to pay compensation therefor in the same manner as other property is acquired for State highway purposes with respect to the foregoing outdoor advertising signs, displays and devices. The compensation to be paid shall be to the following:

(1) The taking from the owner of such sign, display or device of all right, title, leasehold and interest in such sign, display and device; and

(2) The taking from the owner of the real property on which such sign, display or device is located, of the right to erect and maintain such signs, displays or devices thereon. Not withstanding these provisions, no rights in and to property shall be acquired with respect to any outdoor advertising sign, display or device except to the extent that Federal Funds authorized to be appropriated pursuant to the Federal "Highway Beautification Act of 1965", as amended, to reimburse the State for 75% of the cost thereof, are in fact appropriated and allocated to the State for that purpose.

§ 1123. Advertising in safety rest areas

In order to provide information in the specific interest of the traveling public, the Department is hereby authorized to maintain maps and to permit informational directories and advertising pamphlets to be made available at safety rest areas, and to establish information centers in such areas for the purpose of informing the public of places of interest within the State and providing such other information as may be considered desirable; provided, however, that no such information centers shall be established within controlled areas adjacent to the Interstate System without the approval of the Secretary of Transportation of the United States.

§ 1124. Signs, displays and devices providing information for the traveling public; location

Signs, displays and devices giving specific information in the interest of the traveling public may be erected and maintained, pursuant to agreement between the Department and the Secretary of Transportation of the United States, within the right-of-way of highways of the Interstate System, at appropriate distances from interchanges on such systems.

§ 1125. Agreements with federal government or agencies

The Department may enter into agreements with the Secretary of Transportation of the United States relating to the control of outdoor advertising in controlled areas, consistent with the provisions of this chapter, and take action in the name of the State to comply with the terms of such agreements.

Approved July 14, 1969.