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Texas Billboards Could Skyrocket in Height Because of Loophole

The latest debate between billboard advocates and opponents is the latest scrum in a long saga.
The latest debate between billboard advocates and opponents is the latest scrum in a long saga.
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A proposed rule change by the Texas Department of Transportation, which critics argue is needlessly vague, would allow the height of billboards in Texas to double.

The proposal currently is in a public-comment period and would go into effect no sooner than October 16, but some advocacy groups are pushing for citizens to speak up now.

Billboards in the state currently must be no taller than 42.5 feet, but the Texas Senate passed two laws this spring to grant waivers to 159 billboards that were above the limit. The laws represented the Senate’s attempt to give exemptions to billboards that became illegal after the Texas Third District Court of Appeals wiped out portions of the Texas Highway Beautification Act, which regulates signage along highways and roads in the state.

TxDOT proposed a new rule to comply with the laws, but the motion is worded in a way that allows all signs built before March 1, 2017, to be increased to 85 feet.

Angus Lupton, the chief of staff for Texas Senator Robert Nichols, a Republican from Jacksonville, who authored one of the bills, told the Texas Transportation Commission at a meeting in August that the bill was not meant to give advertisers a free pass to raise billboards.

“In no way did we intend TxDOT to authorize thousands of signs to be built or rebuilt up to 85 feet in height or more,” Lupton said.

Nichols has asked TxDOT to reject the new ruling, as has Scenic Texas, a nonprofit that advocates against visual blight in public works.

“Bottom line is what you’ve got is an industry who has a financial incentive to make their assets more valuable,” said Margaret Lloyd, vice president of the Scenic Texas board of directors. “And that’s understandable. But they’re doing it along our public highways, which don't belong to them.”

Outdoor advertising is a $7 billion industry nationwide, and at the August TxDOT meeting, representatives from outdoor advertising firms, billboard companies and trade associations spoke in favor of the rule change. Some noted that the 159 billboards marked by the Senate are only a portion of the signs out of compliance and the rule change would save TxDOT the time and taxpayer expense of measuring each and every one of these signs in the future.

The proposed rule change would not apply to most of the state's large cities, including Houston. The federal Highway Beautification Act does not govern sign height. Most of those regulations come from municipalities, and Texas cities have cracked down on signage over the years. Since 1980, the number of billboards in Houston has dropped from 15,000 to about 1,500, according to Lloyd. Houston’s sign code restricts billboards to 42.5 feet high and actually bans the construction of new billboards.

The areas most likely to be affected are those outside of cities, including parts of unincorporated Harris County.

“It’s those cities who don't have proper sign ordinances,” Lloyd said. “Most don’t have resources or staff to do sign control. They’ve relied on TxDOT to control the billboards that are inside their cities.”

Jason King, a spokesman for Clear Channel Outdoor, a San Antonio-based outdoor advertising corporation that had representatives at the August TxDOT meeting, told the Houston Press, “We are pleased to be a part of the public rule-making process and look forward to a resolution.” As far as these signs being visual blights, as Scenic Texas frequently calls billboards, King disagrees.

“We, our advertising clients, nonprofits and public safety organizations disagree with that sentiment as they find great value and effectiveness in outdoor media,” King said. “This form of media has proven it’s a cost-efficient platform for a business to reach consumers in a contextual way, and, provides economic stimulus to the local economies in which we operate."

TxDOT's rule proposal is part of a longer saga of battles over road signs in Texas and the United States. In 2015, the U.S. Supreme Court ruled in Reed vs. Town of Gilbert that regulations of signage cannot be content-based. A year later, using the Supreme Court’s decision, the Third District Court of Appeals struck down significant portions of the Beautification Act in Auspro Enterprises vs. Texas Department of Transportation – a case in which an Austin businessman sued the transportation department because TxDOT demanded he remove a sign supporting Ron Paul for president. In its decision, the court ruled TxDOT's regulation violated free speech, and struck down two subchapters of the department’s transportation code that regulated outdoor advertising.

Texas Senate Bill 2006 reworded the definition of a “commercial sign” to comply with the ruling and SB 312 legalized the height of all signs up to 85 feet as of March 1, 2017. Without those provisions, lawmakers said, Texas would be out of compliance with the federal Highway Beautification Act and cost the state $300 million in federal highway appropriations.

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