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Environmental Aesthetics: New Horizons for Billboard Controls

April 1978

Citation: ELR 10066

Several cases recently decided by or pending before courts in New York,1 California,2 and Maine3 signal the reemergence of a difficult legal issue which is of major significance to state and local governments: the regulation and/or elimination of billboards. Although superficially not subject which stirs the emotions, outdoor advertising clearly possesses and frequently realizes the potential to degrade the visual quality of the human environment. All too common are the images of a rural highway marred by a string of two-dimensional eyesores, or a street scene consisting of little more than a mass of neon and flashing lights. Many localities view the "invasion of the billboards" as not only a threat to personal privacy and the quality of the environment but as a deterrent to tourism posing indirect but substantial impact upon local economies as well.4 The outdoor advertising industry, on the other hand, sees itself as a purveyor of valuable information, an essential link between business and the consumer, and a low-cost communications medium of crucial importance to small businesses and public service organizations.

For reasons as obvious as the subject matter, outdoor advertising has proven a particularly appealing target of attempts by state and local governments to enhance the visual character of their landscape. This is not a new development; since the turn of the century, billboard controls have been adopted, enforced, and upheld in the courts to varying degrees.5 In recent years, however, such measures have tended to be far more Draconian than their predecessors and have predictably precipitated a wave of legal challenges by the outdoor advertising industry. Because of the breadth and severity of many of these enactments, the case law that has developed over the last 80 years provides little guidance in sorting out the novel issues which have arisen. Litigation which in the past would have turned on the limits of the state's regulatory (police) power is now centered around questions of the state's taking (eminent domain) power and substantive due process. In cases where substantial or complete elimination of a significant medium of communication is threatened, courts now find themselves confronted with intricate First Amendment problems. Moreover, a trend toward liberalized judicial interpretations of state authority to control land use as well as an evolving public stance in favor of environmental protection and against all forms of visual blight have mandated reevaluation of the balancing tests traditionally relied upon to reconcile these competing public and private interests. As a result, there are few aspects of the law on this subject which can be considered well settled.

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