Rothfelder on Barges and Signs Not Visible From Roadways

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Richard Rothfelder, Rothfelder and Falick

I found yesterdays article on “New York’s Billboard Barge Conflict” very interesting. And, while I don’t pretend to be an expert in maritime law or New York zoning, this conflict is right up the alley of several cases I’ve handled for the owners of  traditional billboards erected originally out of the view of any roadway. In fact, several Insider readers have at least heard about the enterprising strategy of erecting billboards in a vacant wheat field, with advance knowledge of a highway anticipated for construction through the field and next to the new billboards. By erecting the billboards before the highway,  the clever operator hopes to avoid the application of any sign regulations, which usually predicate jurisdiction on the ability to view signage from the thoroughfare. Thus, having originally erected the signs legally, and without even securing permits or complying with any sign code regulations, the billboards become grandfathered nonconforming structures once the highway is finally erected within the view of the billboards.

Almost all State HBAs, for example, condition applicability on the sign being visible from the roadway. Section 391.031(a) of the Texas Highway Beautification Act applies to signs “within 660 feet of the nearest edge of a right-of-way if the sign is visible from the main-traveled way of the interstate or primary system; or outside an urban area if the sign is located more than 660 feet from the nearest edge of a right-of-way, is visible from the main-traveled way of the interstate or primary system, and is erected for the purpose of having the sign seen from the main-traveled way of the interstate or primary system.” It follows, the argument goes, that these billboards erected in the middle of the wheat field, before any interstate or primary highway was constructed, are not regulated by the HBA, because they are not visible from such roadways.
Of course, there are enterprising and clever regulators, just like billboard operators. In the case of the New York Barge Conflict, it appears the bureaucrats are attempting to stretch various land use regulations to apply to the floating billboards, even though, as the name suggests, they regulate use on land not water. Similarly, the Texas Department of Transportation has argued in the cases I’ve handled that these billboards in the vacant field can be viewed from a farm to market or county road, at least when one stops the car and gets out his binoculars. In fact, the Texas Transportation Commission amended its administrative rules to provide a definition in 43 TAC Section 21.142(32) that dispenses with the requirement to be able to read the sign: “Visible-Capable of being seen, whether or not legible, or identified without visual aid by a person operating a motor vehicle on the highways of the state.” The Commission has even attempted to accelerate the time when a merely anticipated roadway will become subject to regulation, by including under Section 21.166(c) the “corridor of a section of highway that has received environmental clearance, [even though] the construction contract has not been awarded.”
Another similarity between the New York Barge Conflict and traditional billboards originally built out of the view of any roadway is that the lucrative advertising revenue from these structures often justifies  the risk and expense of erecting and operating them. Since regulators usually perceive the operator as attempting to game the system under either of these approaches, they make that risk and expense very real, such as these $100,000 fines levied by New York on the billboard barge operator. (I hope he gets a good lawyer)
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