CHAPTER 318

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 234

AN ACT TO AMEND TITLE 17 OF THE DELAWARE CODE RELATING TO CONTROL OF THE RIGHTS-OF-WAY IN THE UNINCORPORATED AREAS OF THE STATE, INCLUDING THE CONTROL OF SIGNS AND OTHER COMMERCIAL ACTIVITIES WITHIN THE RIGHTS-OF-WAY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

WHEREAS, the State has a significant investment in thousands of miles of rights-of-way outside of the incorporated areas of the State; and

WHEREAS, while these rights-of-way are a valuable resource, their primary purpose must always be for the safe use of the traveling public and the citizens of this State; and

WHEREAS, on occasion, non-official interests have assumed that they are entitled to free use of locations on these rights-of-way for their purposes, regardless of the risks their activities may present to others; and

WHEREAS, this use of rights-of-way for commercial or other non-official purposes has led to such activities as the placement of vending machines, signs, and other devices on the rights-of-way, without regard to safety or the legal obligation not to trespass on the property of others; and

WHEREAS, the State attempted to justify its previous enforcement actions against nonofficial signs presenting a sight distance or safety hazard, in the First Amendment case titled Kappa v. New Castle County; however, the U.S. Third Circuit Court of Appeals ruled that the State had only the obligation to maintain pavement integrity, and no duty to maintain a safe "clear zone" for use of these rights-of-way, that Subchapter I. of Chapter 11, Title 17, Delaware Code, was unconstitutional because of an exception contained therein relating to signs announcing cities, industries, and meetings, such as Rotary Club meeting/location signs, and indicated how this subchapter should be amended so as to avoid finding it facially unconstitutional.

NOW, THEREFORE:

BE IT RESOLVED by the House of Representatives of the 139th General Assembly of the State of Delaware that the obligation to maintain safe clear zones in the rights-of-way should be affirmed; that appropriate restrictions against non-official uses of these rights-of-way should be provided; and, that a rational means of addressing First Amendment concerns, while maintaining the safety of these rights-of-way, is both fitting and proper.

Section 1. Amend Section 1108, Chapter 11, Title 17, Delaware Code, by deleting the phrase "Public Instruction" appearing therein, and inserting in lieu thereof the word "Education".

Section 2. Amend Section 1114(6), Chapter 11, Title 17, Delaware Code, by deleting the phrase "bearing announcement of any town, village or city advertising itself or local industries, meetings, building, historical markers" appearing therein and inserting in lieu thereof the phrase "directing travelers to any town, village, city, historical site".

Section 3. Amend Section 1114, Chapter 11, Title 17, Delaware Code, by creating a new subsection (7) to read as follows:

"(7) Non-official signs displayed on transit shelters under contracts approved by the Department."

' Section 4. Amend Subchapter I., Chapter 11, Title 17, Delaware Code, by creating a new Section 1120 to read as follows:

"Section 1120. Severability.

If any exception, section, part, phrase, or provision of this Chapter or the application thereof be held invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the exception, section, part, phrase, provision, or application directly involved in the controversy in which such judgment shall have been rendered, and shall not affect or impair the remainder of this Chapter or the application thereof."

Section 5. Amend Section 1121, Title 17, Delaware Code, by deleting the phrase "Public Instruction" appearing therein and inserting in lieu thereof the word "Education".

Section 6. Amend Section 508(a)(1), Chapter 5, Title 17, Delaware Code, by inserting the following between the phase "the posted security for completion" and the phrase "and whatever other terms" appearing in the third sentence thereof:

", the location of any decorative subdivision entrance signs installed by the developer,".

Section 7. Amend Chapter 5, Title 17, Delaware Code, by creating new Sections 525 526, and 527 to read as follows:

"Section 525. Maintenance of clear zones within rights-of-way.

(a) The Department is authorized to maintain clear zones within the rights-of-way under its jurisdiction in the unincorporated areas of the State. In maintaining these clear zones, the Department shall have the immediate authority to remove artificial obstructions placed therein, including, but not limited to, non-official signs, poles, mailboxes not placed in conformance with Departmental regulation, or other hazards to safe passage. In removing artificial obstructions, the Department shall attempt to determine the owner of the obstruction and provide written notice and an opportunity for the owner to recover the obstruction after its removal. The Department shall also have the immediate authority to remove or trim vegetation growing within these rights-of-way.

(b) As used in this Chapter, the term 'clear zone' has the following meanings:

(1) For all roads except those described in subsection (2) of this subsection, the term includes the total roadside border area within a right-of-way, starting at the edge of the pavement and continuing for a distance of ten (10) feet perpendicular to the pavement edge.

(2) For all interior streets within residential subdivisions, the term includes the total roadside border area within a right-of-way, starting at the edge of the pavement and continuing for the shorter distance of either (i) seven (7) feet perpendicular to the pavement edge, or (ii) if there is a sidewalk adjacent to the street, the sidewalk edge further from the street.

(3) The total area within the median strips between traveled ways or on any channelization islands, except as permitted by Section 1108(d) of this Title.

Section 526. Restrictions against commercial use of State rights-of-way; site-based enforcement mechanisms.

(a) Except as provided in subsection (b) of this section, there shall be no commercial activity within any rights-of-way under the Department's jurisdiction in the unincorporated areas of the State. As used herein, 'commercial activity' includes, without limitation, such activities as the placement of news boxes in such rights-of-way for the sale of newspapers, the placement of vending machines in such rights-of-way for the sale of goods, the placement of commercial advertising signs in such rights-of-way, or the sale of goods from vehicles parked within such rights-of-way. If a commercial activity occurs within the clear zone of any such rights-of-way, the Department shall treat the machines, fixtures, signs, or other materials used in such activity as an artificial obstruction under Section 525 of this Title, and may undertake the immediate removal of said materials as authorized therein.

(b) Any of the following commercial uses of the rights-of-way shall be subject to enforcement under Chapter 11 of this Title:

(1) Commercial activities occurring outside the clear zone; or

(2) The placement of non-official signs outside the clear zone; or

(3) The placement of vending machines at designated locations at safety roadside rest areas, as permitted by Section 132(c)(14) of this Title; or

(4) The-placement of news boxes outside the clear zone; or

(5) Signs displayed on any school bus waiting shelter located with the approval of the Department of Education; or

(0) Non-official signs displayed on transit shelters pursuant to Department-approved contracts.

Section 527. Coordination with other statutes.

In the event of a conflict between the provisions of Section 525 and 526 of this Chapter and the provisions of Chapter 11 of this Title, the provisions of Section 525 and 526 shall take precedence."

Section 8. Severability. If any section, part, or provision of this Act or the application thereof be held invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the section, part, phrase, provision, or application directly involved in the controversy in which such judgment shall have been rendered and shall not affect or impair the remainder of this Act or the application thereof.

Approved June 27, 1998