12/2/2015 Federal, State, Local Hierarchy Regulating Murals: Legal Parameters to Consider Federal Law: United States Constitution Before You Start Drafting Federal Highway Beautification Act State Law: OAPA Legal Issues Conference Oregon State Constitution Oregon Motorist Information Act December 4, 2015 Speakers: Jennifer Bragar Local Regulation: Oregon City Municipal Code jbragar@gsblaw.com Blog: www.northwestlandlawforum.com (503) 553-3208 Anchorage Beijing New York Portland Seattle Washington, D.C. www.GSBLaw.com www.GSBLaw.com Federal Highway Beautification Act Federal Law 21 USC 131 United States Constitution • Governs areas along interstate highways • The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system • First Amendment Right to Free Speech balanced against a local government’s substantial interest in ameliorating aesthetic and visual should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public clutter – such interests may justify a content-neutral prohibition on travel, and to preserve natural beauty. the limitation of signs. Metromedia, Inc. v. City of San Diego 453 US 490, 532-534 (1981) • Regulates signs and displays visible from the main traveled way of the system and erected with the purpose of their message being read from such main traveled way • Consider whether regulations are specific enough to avoid constitutional claims for vagueness and overbreadth www.GSBLaw.com www.GSBLaw.com Highway Beautification Act Highway Beautification Act Continued Continued Allows: • Billboards are allowed within 660 feet of • Directional and official notice signs – e.g. natural the nearest edge of the right-of-way within wonders • Signs advertising the sale or lease of property areas adjacent to the Interstate which are upon which they are located zoned industrial or commercial areas • Electronic signs advertising activities conducted • States shall have full authority under their on the property on which they are located own zoning laws to zone areas for • Landmark signs in existing on Oct. 22, 1965 commercial or industrial purposes • Availability of free coffee, even if a donation is requested www.GSBLaw.com www.GSBLaw.com 1
12/2/2015 Oregon Motorist Information Act State Law (OMIA) Oregon Constitution – Broad A person may not erect or maintain a sign visible to the traveling public protection of free speech. from a state highway, except where permitted outside the right of way of a state highway, unless the sign complies with the provisions of ORS 377.505 to 377.540 and 377.700 to 377.840, and the rules adopted pursuant thereto. Article I, section 8, provides, in part, that “[n]o law shall be passed A person may not erect or maintain a sign on the right of way of a state restraining the free expression of highway, other than a traffic control sign or device. opinion, or restricting the right to speak, write, or print freely on any subject whatever[.]” www.GSBLaw.com www.GSBLaw.com OMIA continued OMIA continued State law imposes limitations on the form and size of signs for ORS 377.723 requires an applicant for a sign outdoor advertising along state highways under ORS 377.745: permit along a state highway to submit an An outdoor advertising sign may not exceed: affidavit from the city that certifies the (a) A length of 48 feet; (b) A height, excluding foundation and supports, of 14 feet; or proposed sign would comply with all (c) A sign area of 825 square feet. applicable ordinances, plans, rules and other requirements of the city. www.GSBLaw.com www.GSBLaw.com OMIA continued Take Away Particular rules govern the determination of dimensions depending on the type of sign: What kinds of regulations may the City (a) Cutouts that project beyond the borders of an outdoor advertising sign shall be included in measuring the area of a sign, but not the height or length of a sign. The adopt without running afoul of federal or sign area of cutouts shall be no more than 20 percent of the area of the sign to which attached. state law? (b) The limitations apply separately to each side of a back-to-back sign. (c) The size limitations apply separately to each sign forming a V-type sign. (d) The size limitations apply separately to each of the display surfaces on a tri-vision sign. Reasonable time, place, and manner restrictions that are CONTENT NEUTRAL The exception to the rules: A nonconforming outdoor advertising sign in existence on May 30, 2007, may continue to exceed the size limitations established in this section until the sign is reconstructed or relocated, at which time the sign must comply with the size limitations shown on the previous slide. www.GSBLaw.com www.GSBLaw.com 2
12/2/2015 Content Neutral Defined Additional Parameters In general, the term “content neutral” means that a particular • Taking us full circle back to the First restriction on expression applies to all expression, regardless of its Amendment Protection, content neutral subject or content. time, place, or manner restrictions must For example, a law that prohibits all signs that interfere with drivers’ advance a significant government interest lines of sight near an intersection is “content neutral,” while a law that permits noncommercial signs (for example, political) but to be constitutional. prohibits commercial signs is not content neutral. • A city’s interest in its appearance and the See Outdoor Media Dimensions, Inc. v. Department of Transportation , 340 Or. 275, 287 (2006). safety of the public are significant and well established. www.GSBLaw.com www.GSBLaw.com In the Context of Murals Please Contact Me With Questions • A jurisdictions’ ownership of a mural may allow some input on artistic aspects of murals Jennifer Bragar jbragar@gsblaw.com • But to guarantee constitutionality aim for 503.553.3208 content neutrality www.GSBLaw.com www.GSBLaw.com 3
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