New Jersey land use practitioners frequently encounter clients that seek local zoning approval for billboards or other off-premises advertising signage. Although local zoning controls often place significant restrictions on the location of billboards, it is important to consider the additional restrictions placed on billboards by the state and federal governments. In almost all cases, an Outdoor Advertising permit must be obtained from the New Jersey Department of Transportation, which requires that the proposed sign comply with strict state and federal laws which limit the locations of billboards, as well as the size, illumination, and other physical characteristics of such signs.
In 1965, the Highway Beautification Act, 23 U.S.C. § 131 (often referred to as the “Ladybird Johnson Act”), became law. This federal Act sets forth specific requirements for controlling the location and characteristics of outdoor advertising signs. In addition, it incentivizes state transportation departments to enter into agreements with the United States Secretary of Transportation to “control the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate [Highway] System” by offering “bonus” federal highway funds to states that enter into such an agreement.
Six years later, in accordance with the Highway Beautification Act, the State of New Jersey entered into an agreement with the United States Department of Transportation to “effectively control” outdoor advertising in areas to which the Agreement applies (a copy of the Agreement can be found here: http://www.scenic.org/storage/PDFs/FSAs/nj1965.pdf). Specifically, the Agreement requires that, for billboards to be located in “zoned commercial and industrial areas, the State shall notify the [Federal Highway] 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 consistent with” the Federal Act.
Thus, in accordance with the Agreement, the State of New Jersey adopted the Outdoor Advertising Act, N.J.S.A. 54:40-50 to -73 (repealed in 1992) and more recently the Roadside Sign Control and Outdoor Advertising Act, N.J.S.A. 27:5-5 to -26 (replacing N.J.S.A. 54:40-50 to -73). To effectuate the State act, the New Jersey Department of Transportation adopted N.J.A.C. 16:41C-1.1 et seq. (the “Regulations”), which concern “Roadside Sign Control and Outdoor Advertising” (the Regulations can be found here: http://www.state.nj.us/transportation/about/rules/documents/16-41CRoadsideSignControlandOutdoorAdvertising_002.pdf).
The Regulations require that an Outdoor Advertising Permit be issued for any outdoor advertising sign located on any highway, road or street in New Jersey, except for “on-premise” advertising signs (i.e., signs advertising the business existing on the property on which the sign is located), certain official signs, and “for sale” or “for rent” signs. (Notably, the Federal act also exempts signs advertising “free coffee” to motorists. Suffice it to say this author has not encountered yet a client seeking such a sign).
Most commonly of concern are signs that the Regulations term “Off-premise signs”, which advertise a business that does not exist on the property – i.e.,billboards. It is through regulation of Off-premise signs that the New Jersey Department of Transportation effectively administers the Federal Act.
Specifically, the Federal Act (and accordingly, the Regulations) require Off-premise signs be located only in commercial or industrial zones. In addition, minimum spacing requirements are established and vary depending on the type or types of road from which the sign will be viewable. Dimensional, lighting, and other physical restrictions are also established by the regulations.
In short, local approvals are only part of the approval process for billboards. The state-issued Outdoor Advertising permit can often be even more difficult to obtain than local zoning approval. Thus, before embarking on the process of obtaining local approval for a proposed billboard, it is critical to know if the proposal will require an Outdoor Advertising Permit and, if so, whether the proposal complies with federal and state law.