Colorado § 43-1-404 - Advertising devices allowed - exception - legislative declaration.

§ 43-1-404. Advertising devices allowed - exception - legislative declaration.

(1) The following advertising devices as defined in section 43-1-403 may be erected and maintained when in compliance with all provisions of this part 4 and the rules adopted by the department:

(a) to (c) Repealed.

(d) Advertising devices located in areas which were zoned for industrial or commercial uses under authority of state law prior to January 1, 1970;

(e) (I) Advertising devices located along primary and secondary highways in areas which were zoned for industrial or commercial uses under authority of state law on and after January 1, 1970, provided:

(A) The advertising device shall be no larger than one hundred fifty square feet; and

(B) The advertising device must be located within one thousand feet of an industrial or commercial building.

(C) to (E) Repealed.

(II) In enacting the provisions of this paragraph (e), the general assembly declares each and every provision is necessary and not severable in order to further the substantial state interests contained in section 43-1-402. It is not the intent of the general assembly to allow advertising devices in areas zoned for industrial or commercial uses on or after January 1, 1970, unless each and every provision contained in this paragraph (e) is satisfied.

(III) Repealed.

(f) (I) Notwithstanding any other provision of law, with the exception of section 43-1-416, any advertising device, except for a nonconforming advertising device, may contain a message center display with movable parts and a changeable message that is changed by electronic processes or by remote control. The illumination of an advertising device containing a message center display is not the use of a flashing, intermittent, or moving light for the purposes of any rule, regulation, and standard promulgated by the department or any agreement between the department and the secretary of transportation of the United States. No message center display may include any illumination that is in motion or appears to be in motion, that changes in intensity or exposes its message for less than four seconds, or that has an interval between messages of less than one second. No advertising device with a message center display may be placed within one thousand feet of another advertising device with a message center display on the same side of a highway and facing the same direction of travel. No message center display may be placed in violation of section 131 of title 23 of the United States code.

(II) Subparagraph (I) of this paragraph (f) shall not apply if the department receives written notification from the applicable federal authority that the proposed advertising device with a message center display will directly cause the repayment or denial of federal moneys that would otherwise be available or would otherwise be inconsistent with federal law, but only to the extent necessary to prevent the repayment or denial of the moneys or to eliminate the inconsistency with federal law.

(2) Nonconforming advertising devices in compliance with this part 4 and the rules and regulations adopted by the department pursuant to this part 4 may be maintained.

(3) Nothing in this section shall be construed to allow advertising devices which are prohibited in bonus areas adjacent to the interstate system as provided for in section 43-1-406.

(4) Notwithstanding paragraphs (d) and (e) of subsection (1) of this section, any advertising device which is more than six hundred sixty feet off the nearest edge of the right-of-way, located outside urban areas as such areas are defined in 23 U.S.C. sec. 101, and which is visible from the roadway of the state highway system and erected with the purpose of its message being read from such roadway is prohibited. Advertising devices beyond six hundred sixty feet of the right-of-way which were lawfully erected under state law prior to January 4, 1975, shall be compensated for and removed pursuant to this part 4.

(5) (a) Notwithstanding any other provision of law, except for section 43-1-416, as an alternative to removing any advertising device that is otherwise permitted by this part 4 or acquiring all real and personal property rights pertaining to the device, the department may permit the advertising device to be remodeled and relocated on the same property in a commercial or industrial zoned area, or on another area where the device would otherwise be permitted under this article.

(b) Paragraph (a) of this subsection (5) shall not apply if the department receives written notification from the applicable federal authority that the proposed advertising device to be remodeled and relocated will directly cause the repayment or denial of federal moneys that would otherwise be available or would otherwise be inconsistent with federal law, but only to the extent necessary to prevent the repayment or denial of the moneys or to eliminate the inconsistency with federal law.

Source: L. 81: Entire part R&RE, p. 2008, § 1, effective July 1. L. 83: (1)(e)(I)(C) amended and (1)(e)(III) added, p. 1662, § 1, effective June 10. L. 92: (1)(e)(III) amended, p. 563, § 8, effective March 25. L. 2002: (1)(f) and (5) added, pp. 543, 544, §§ 1, 2, effective August 7. L. 2006: (1)(b) amended, p. 79, § 2, effective August 7. L. 2010: IP(1) and (1)(e)(III) amended, (SB 10-158), ch. 231, p. 1014, § 5, effective July 1. L. 2021: (1)(a), (1)(b), (1)(c), (1)(e)(I)(C), (1)(e)(I)(D), and (1)(e)(I)(E) repealed and (1)(e)(I)(B) and (1)(f)(I) amended, (SB 21-263), ch. 388, p. 2589, § 2, effective June 30. L. 2022: (1)(e)(III) repealed, (SB 22-212), ch. 421, p. 2988, § 95, effective August 10.

Editor's note: This section is similar to former § 43-1-408 as it existed prior to 1981.

ANNOTATION

This section is not unconstitutionally vague. Alpert Corp. v. State Dept. of Hwys., 199 Colo. 4, 603 P.2d 944 (1979) (decided under prior law).

The supreme court has long sustained exercises of the police power of the states for regulation and prohibition of various forms of outdoor commercial advertising. Howard v. State Dept. of Hwys., 478 F.2d 581 (10th Cir. 1973) (decided under prior law).

Attack on validity of this part presented no substantial federal question. Attack on the validity of this part on constitutional and antitrust grounds presented no substantial federal question as to its validity, as similar acts in various states had been upheld against similar challenges. Howard v. State Dept. of Hwys., 478 F.2d 581 (10th Cir. 1973) (decided under prior law).

Exception for signs located in areas zoned commercial or industrial must be read as applying to those commercial or industrial areas adjacent to state highways other than interstate highways, and therefore does not deny the department the authority to regulate. Nat. Advert. Co. v. Dept. of Hwys., 718 P.2d 1038 (Colo. 1986).

Rule-making authority under this act was lawfully delegated, as legislative standards for rule-making are sufficient to insure exercise in a rational and consistent manner. Orsinger Outdoor Adv. v. State Dept. of Hwys., 752 P.2d 55 (Colo. 1988).

Spacing regulations promulgated under this section did not exceed rule-making authority of the department of highways. Orsinger Outdoor Adv. v. State Dept. of Hwys., 752 P.2d 55 (Colo. 1988).

Department of highways did not adopt unduly expansive interpretation of its own regulation in measuring the distance from highway to signs. Agency's construction of its own regulation is entitled to great weight, especially when promulgated pursuant to an explicit grant of authority and neither plainly erroneous nor internally inconsistent. Orsinger Outdoor Adv. v. State Dept. of Hwys., 752 P.2d 55 (Colo. 1988).

Application of "on-premises" exemption to noncommercial advertising does not exceed rule-making authority. Legislature has left specification of criteria for "on-premises" advertising to the highway department and inclusion of non-commercial advertising within the "on-premises" exemption precludes any constitutional violation that would result from a total ban on non-commercial advertising. Pigg v. State Dept. of Hwys., 746 P.2d 961 (Colo. 1987).