U.S. Department of Transportation

Federal Highway Administration

The Highway Beautification Act of 1965 (HBA) 23 USC 131 and Scenic Byways

Colleen Smith - Federal Highway Administration Bob Demuth - Indiana Department of Transportation Road School Wednesday March 9, 2011

Scenic Byway

A public road having special scenic, historic, recreational, cultural, archeological, and/or natural qualities that have been recognized as such through legislation or some other official declaration. The terms ‘‘road’’ and ‘‘highway’’ are synonymous. Moreover, the terms State Scenic Byway, National Scenic Byway, or All American Road refer not only to the road or highway itself but also to the corridor through which it passes.

Website:fhwa.dot.gov/realestate/

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State Scenic Byway A

road or highway under State, Federal, or local ownership that has been designated by the State through legislation or some other official declaration for its scenic, historic, recreational, cultural, archeological, or natural qualities. An Official Declaration is an action taken by a Governor or that of an individual, board, committee, or political subdivision acting with granted authority on behalf of the State 3

Until the passage of the 1991 ISTEA, there was no Federal law regarding outdoor advertising on scenic byways!

The ISTEA of 1991, amended the HBA and added the scenic byway provision, now 23 US Code 131(s).

Intermodal Surface Transportation Efficiency Act (ISTEA)

Title 23 United States Code 131(s)

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If a State has a scenic byway program, the State may not allow the erection along any highway on the Interstate System or Federal-aid primary system

which before, on, or after the effective date of this subsection, is designated as a scenic byway under such program of any sign, display, or device which is not in conformance with subsection 131(c). New signs allowed include directional and official signs and notices, sale or lease signs, on property signs and free coffee signs.

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Primary System Defined

• Scope of control to include the Interstate System, the primary system as it existed on June 1, 1991, and roads added to the National Highway System (NHS); • New subsection 131(t) in Title 23 United States Code defines the primary system for purposes of outdoor advertising control, i.e. the terms 'primary system' and 'Federal-aid primary system' mean the Federal-aid primary system in existence on June 1, 1991, and any highway which is not on such system but which is on the National Highway System.

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Primary System Defined continue

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This means that any highway which was on the Federal-aid primary (FAP) system as of June 1, 1991, will remain subject to control regardless of any subsequent change in its functional classification.

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Primary System Defined continue

• Further, following Congressional approval of the designated National Highway System (NHS), any highway which is not on either of the foregoing but which is part of the approved NHS will also be subject to control. However, for purposes of outdoor advertising control, we are not recognizing the NHS until it is approved by Congress.

• Following approval of the NHS there will be highways, or sections of highways, not on the NHS that will still be subject to control because they were on the FAP as of June 1, 1991. State law must be sufficient to maintain effective control of outdoor advertising under 23 U.S.C. 131.

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Indiana Byways

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Indiana Byways

• Ohio River Scenic Byways • Indiana Historic Pathways • Whitewater Canal Scenic Byways • Historic National Road, All American Road • River Road Scenic Byway • Lincoln Highway • Historic Michigan Road 10

Historic Michigan Road Byway

• The Historic Michigan Road Byway stretches across the State of Indiana, from the Ohio River to Lake Michigan. This byway follows the route established by the State of Indiana in 1826 and constructed through the 1830s.. • This route begins in Madison, Indiana and continues north-northwest through Greensburg and Shelbyville into Indianapolis, then north to Logansport before it takes a bend toward Rochester, then north to South Bend and finally west to Michigan City where it terminates at Lake Michigan. 11

Question - Once a roadway (county road) that has not been under state or federal jurisdiction becomes designated as a scenic byway, does that roadway fall under the compliance rules of the National Scenic Byway Program.

• When a road is designated a State scenic byway, it is subject to the State requirements for scenic byway designation.

• • In addition, some Federal requirements may apply. For example, under Federal statute, local and State officials must ensure no new billboards are erected on a State scenic byway if the road is part of the National Highway System or was part of the Federal-aid primary system before, on, or after December 18, 1991 (Title 23, United States Code, Section 131(s). Continue next slide 12

Continue Question - Once a roadway (county road) that has not been under state or federal jurisdiction becomes designated as a scenic byway, does that roadway fall under the compliance rules of the National Scenic Byway Program.

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If a scenic byway extends through areas that do not possess intrinsic qualities or are otherwise inconsistent with the State's criteria for a scenic byway, State and local officials may exclude that segment from the designated State scenic byway.

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• Question – What is the FHWA position on allowing the conforming signs which would be the previously nonconforming signs [due to spacing] to be rebuilt into monopoles when located on an Interstate or primary highway which is a State designated scenic byway?

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Question – Answer

Conforming and nonconforming signs continue to enjoy the same status they had prior to enactment of the ISTEA on December 18, 1991. Conforming signs may be reconstructed at the same location if permitted by State law. Nonconforming signs continue to be subject to the maintenance and continuance rules of nonconforming signs. However, when a

nonconforming sign is changed to a conforming sign, it acquires the status of a conforming sign

and may be reconstructed as set forth above.

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Does Federal law require the segmenting of scenic byways?

• No. The designation and the non-designation of scenic byways is clearly a State’s prerogative. A State may choose to segment scenic byways or it may choose to have only continuous scenic byways 16

Scenic Byway “Qualities”

• 1. Scenic • 2. Historic • 3. Recreational • 4. Cultural • 5. Archeological • 6. Natural

Memorandum – January 18, 1995 New Mexico/Tennessee –

• …While segmentation of scenic byways is acceptable when the areas do not in fact possess intrinsic qualities (scenic, historic, recreational, cultural, archeological, or natural) to support the designation of a route as a scenic byway, segmentation solely because an area is commercial and/or industrial is not acceptable…

FHWA Memorandum – Dec, 1995

• …While a State has the power to exclude zoned commercial or industrial areas from any of its highways or sections of highways it designates as scenic byways, such exclusion cannot be done unilaterally so as to evade the statutory intent of 23 U.S.C. 131(s)… • Again, the State enacted law that could be contrary to 131(s), unless it could provide justification for “segmenting” the sections that do not possess the qualifying “intrinsic” characteristics of scenic byway nomination.

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FHWA letter of September 9, 1998 from Acting Chief Counsel

• …a blanket de-designation of commercial or industrial areas from a scenic byway just because they are commercial or industrial areas would not be acceptable… • If there are no intrinsic qualities in a section of highway, a State could certainly decide not to designate that part of the highway as scenic. The key is not the existence of commercial or industrial activity, but the absence of all or most of the criteria that a state has established for designating scenic byways.

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U.S. Department of Transportation

Federal Highway Administration

Thank you!

Additional information from FHWA on outdoor advertising control can be found here:

http://www.fhwa.dot.gov/realestate /out_ad.htm

For more information, please contact: Colleen Smith [email protected]

317-226-5234 Robert Demuth [email protected]

317-234-6203 21

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Title 23, Section 131(s) references subsection 131(c) which explains what signs, displays, or devices are allowable along designated scenic byways:

Effective control means that such signs, displays, or devices after January 1, 1968, if located within 660 feet of the ROW and, on or after July 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, if located beyond six hundred and sixty feet of the right-of-way located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to 24

• Title 23, Section 131(s) references subsection 131(c) continue • (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, 25

Title 23, Section 131(s) references subsection 131(c) continue

• (4) signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, or 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 by 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.

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