The Town of Spring Valley enacted an ordinance that bans directional signs in residential and agricultural areas. Donaldson, the owner of land in an agricultural district, wished to erect a billboard on his property to advertise a business he owned located up the road. Donaldson challenged the ban claiming that the state statute governing signs visible from federal-aid highways preempts local zoning. The circuit court found for Donaldson and the Town appealed.
The Wisconsin Appeals court reversed and remanded the case. The Court began with a review of the purpose of federal law, 23 U.S.C. § 131, which encourages states to adopt standards applicable to signs viewable from interstate and federal-aid highways. Quoting from the statute, the Court noted that the law’s purpose is to “protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty.” The Court continued that to encourage participation, the federal law provides a fiscal incentive for states to implement programs of “effective control” of signage within six hundred feet of federal highways. As a result, the State of Wisconsin enacted § 84.30(3)(a), which reads:
(3) Signs prohibited. No sign visible from the main-traveled way of any interstate or federal-aid highway may be erected or maintained, except the following: (a) Directional and other official signs, including, but not limited to, signs pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, and which comply with rules which shall be promulgated by the [Wisconsin DOT] relative to their lighting, size, number, spacing and such other requirements as are appropriate to implement this section, but such rules shall not be inconsistent with, nor more restrictive than, such national standards as may be promulgated from time to time by the secretary of transportation of the United States under 23 USC 131(c). [emphasis added]
The Appeals Court determined that under this statute, a sign must:1) be “required or authorized by law,” and 2) comply with rules promulgated by the Wisconsin DOT. The Court noted that “Donaldson’s analysis fails to acknowledge that the statutory phrase he relies on, ‘nor more restrictive than,’ does not modify the first ‘required or authorized by law’ condition. Rather, under the plain language of the statute, ‘nor more restrictive than’ is a part of the second condition. More specifically, the second condition requires that a sign must ‘comply with rules … promulgated by [the Wisconsin DOT that are] … not … inconsistent with, nor more restrictive than, … national standards … promulgated … by [the U.S. DOT].’ Wis. Stat. § 84.30(3)(a) (emphasis added).” The Court continued, “When the second condition is properly viewed as an independent condition, it becomes apparent that the phrase “nor more restrictive than” has no arguable application to the Town’s zoning ordinance.” Further, since the sign Donaldson wishes to erect is not required by law, and the Court found no other law that specifically authorizes the sign, and in fact there was no reason that a local zoning law could not prohibit the sign.
Donaldson v. Spring Valley, 2008 WL 732001 (3/20/2008).
The opinion can also be accessed at:
http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=32167
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