39-215. Prohibition of advertising visible from main-traveled way; other signs permitted; where; criteria listed.

(1) Except as provided in sections 39-212 to 39-222, the erection or maintenance of any advertising sign, display, or device which is visible from the main-traveled way of the Highway Beautification Control System is prohibited. On-premise signs, directional and official signs, and notices as defined and controlled in the department's rules and regulations shall be permitted.

(2) Other signs controlled in accordance with the federal-state agreement shall be permitted, if conforming to sections 39-212 to 39-222, in the following areas:

(a) All zoned commercial or industrial areas within the boundaries of incorporated municipalities, as those boundaries existed on September 21, 1959, and all other areas where the land use as of September 21, 1959, was clearly established by law or ordinance as industrial or commercial in which outdoor advertising signs, displays, and devices may be visible from the main-traveled way of the National System of Interstate and Defense Highways, except that no such signs, displays, or devices shall be permitted in areas in which advertising control easements have been acquired;

(b) All zoned and unzoned commercial and industrial areas in which outdoor advertising signs, displays, and devices may be visible from the main-traveled way of those portions of the National System of Interstate and Defense Highways constructed upon right-of-way, any part of the width of which was acquired on or before July 1, 1956, except that no such signs, displays, or devices shall be permitted in areas in which advertising control easements have been acquired;

(c) All zoned and unzoned commercial and industrial areas in which outdoor advertising signs, displays, and devices may be visible from the main-traveled way of all portions of the Highway Beautification Control System other than the National System of Interstate and Defense Highways within the State of Nebraska, except that no such signs, displays, or devices shall be permitted in areas in which advertising control easements have been acquired. No signs shall be allowed in such areas along scenic byways except those permitted under section 39-218; and

(d) All signs, displays, or devices beyond six hundred sixty feet of the edge of the right-of-way of the Highway Beautification Control System and outside of urban areas which are visible from the main-traveled way are prohibited except those which are authorized to be erected by the Federal-Aid Highway Acts of 1965, 1970, and 1974 and those signs whose advertising message is only visible from a secondary road or street but not visible from the main-traveled way of the Highway Beautification Control System.

(3) In the areas described in subsection (2) of this section, advertising signs, displays, and devices shall be allowed to be erected in accordance with the following criteria:

(a) Whenever a bona fide state, county, or local zoning authority has made a determination of customary use, as to size, lighting, and spacing, such determination may be accepted in lieu of criteria established by regulation in the zoned commercial and industrial areas described in subsection (2) of this section within the geographical jurisdiction of such authority unless conflicting with laws not contained in this section or with the rules and regulations of the department; and

(b) In all other areas described in subsection (2) of this section, the following criteria shall apply:

(i) On-premise signs as defined and controlled in the department's rules and regulations shall be permitted;

(ii) Those signs referred to as being permitted in the October 1968 federal-state agreement shall be permitted when in conformity with the rules and regulations of the department;

(iii) Within the areas in which, according to sections 39-212 to 39-222, advertising signs will be permitted, such signs shall conform to standards and criteria as to height, width, spacing, and lighting as set forth in the rules and regulations of the department;

(iv) Nothing contained in such sections shall be construed to allow any person or persons, except the department, to erect signs within the right-of-way of any portion of the state highway system or, except the county, to erect official signs within the right-of-way of any portion of the county road system;

(v) Nothing contained in such sections shall be construed to prevent the department from acquiring easements for the control of outdoor advertising;

(vi) Nothing contained in such sections shall be construed to require the removal of signs in zoned and unzoned commercial and industrial areas, lawfully in existence on March 27, 1972, which signs may under such sections remain and continue in place even if nonconforming; and

(vii) The powers conferred by such sections are supplementary and additional powers, and nothing contained in such sections shall be deemed amendatory or in derogation of any other grant of power or authority to the department.

Source

Annotations

The change of the face of a sign to an electronic format did not constitute the erection of a new sign under this section. State, Dept. of Roads v. World Diversified, Inc., 254 Neb. 307, 576 N.W.2d 198 (1998).

This section does not violate article III, section 18, of the Nebraska Constitution. The classification of on-premises signs and off-premises signs is a reasonable method of controlling the number of signs along the Interstate and bears a rational relationship to the goal of public health and safety, and to the legislative intent that the state comply with federal regulations concerning highway advertising. State v. Popco, Inc., 247 Neb. 440, 528 N.W.2d 281 (1995).

The portion of this statute prohibiting the "erection or maintenance of any advertising sign, display, or device which is visible from the main-traveled way of the National System of Interstate and Defense Highways and the system of federal-aid primary roads of the State of Nebraska" is unconstitutionally vague. State v. Houtwed, 211 Neb. 681, 320 N.W.2d 97 (1982).

This section is unconstitutionally vague and therefore unenforceable in that it fails to provide any standards by which to calculate the meaning of the term "visible". Neither landowner or lessee nor the enforcing agency of the state can act upon such wording with the certainty otherwise required by the due process notion of fair notice of conduct which is proscribed. State v. Mayhew Products Corp., 211 Neb. 300, 318 N.W.2d 280 (1982).

An injunction may properly be entered to require compliance with the statute making it unlawful to erect or maintain advertising signs along highways prior to determination of whether there is a right to damages resulting from application of the statute. State v. Mayhew Products Corp., 204 Neb. 266, 281 N.W.2d 783 (1979).

Sections 39-1320 to 39-1320.11 constitute a reasonable and valid exercise of the police power which bears a substantial relation to the public health, safety, and general welfare, and are constitutional. State v. Mayhew Products Corp., 204 Neb. 266, 281 N.W.2d 783 (1979).