Are campaign yard signs in a Virginia state highway right-of-way illegal everywhere, and can a county other than Fairfax help VDOT remove them?

Plain-English summary

The Virginia Department of Transportation's commissioner asked the AG to clarify an earlier 2008 opinion that had addressed Fairfax County's authority to remove political campaign signs from state highway rights-of-way. The 2008 opinion (Op. No. 08-013, issued to David Bobzien) had focused on Fairfax County specifically, but VDOT wanted to know whether other Virginia localities could enter into similar enforcement agreements with the Commissioner under § 33.1-375.1.

Attorney General Bob McDonnell's 2009 follow-up gave a two-part answer. The substantive rule, that political campaign signs generally may not be placed within the limits of any state highway in Virginia, applies statewide under § 33.1-373. The enforcement mechanism in § 33.1-375.1, by contrast, is geographically narrow: only Fairfax County is authorized to enter into an enforcement agreement with the Commissioner. No other locality has comparable statutory authority. To the extent the 2008 opinion suggested otherwise, the 2009 opinion overruled it.

So campaign signs in highway rights-of-way are illegal everywhere in Virginia, but in most of the state, the Commissioner and VDOT staff are the only people authorized to remove them. Only in Fairfax County can the locality act under a contractual delegation from the Commissioner.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Title 33.1 has since been reorganized into Title 33.2 (Highways and Other Surface Transportation Systems), so the section numbers cited here have current equivalents in Title 33.2.

Background and statutory framework

Virginia has long had a comprehensive Outdoor Advertising in Sight of Public Highways Act (Title 33.1, Chapter 7, Article 1). The Act regulates "outdoor advertising in areas adjacent to the rights-of-way of the highways within the Commonwealth," and it gives the Commonwealth Transportation Board rulemaking authority to protect traffic and the public investment in highways.

Section 33.1-373 is the AG opinion's center of gravity for political campaign signs. It imposes a $100 civil penalty on anyone who "paints, prints, places, puts or affixes any advertisement" within the limits of any state highway, declares such advertisements a public and private nuisance, and authorizes the Commissioner to "forthwith remove[], obliterate[], or abate[]" them without notice. Section 33.1-373 expressly does not apply to signs regulated under the more general outdoor-advertising provisions of Chapter 7. That is, § 33.1-373 governs in-the-right-of-way; the rest of the chapter governs adjacent-to-right-of-way.

A drafting history wrinkle is important. Before 1993, § 33.1-351 defined "advertisement" to include political signs. The 1993 General Assembly deleted political-campaign signs from that definition. The AG opinion concludes that the deletion did not legalize political signs in highway rights-of-way, because § 33.1-351's definition controls the chapter's other provisions but does not displace the in-the-right-of-way prohibition in § 33.1-373, especially when read with the Board's rulemaking on right-of-way occupancy (24 VAC § 30-20-80) and the in pari materia canon.

Section 33.1-375.1 is the Fairfax-only delegation. It authorizes the Commonwealth Transportation Commissioner to enter into an agreement with Fairfax County to enforce § 33.1-373 (and only § 33.1-373), subject to specific limitations: signs supporting candidates or ballot issues are not subject to a Fairfax County enforcement agreement unless they have been in place more than three days after the election; signs for special events are not subject unless they remain more than three days after the event; and signs erected for no more than three days are also exempt. Section 33.1-375.1(D) was the AG's lever for limiting the delegation to Fairfax County alone.

What the AG concluded, point by point

Political campaign signs in state highway rights-of-way are illegal statewide. Section 33.1-373 makes that clear regardless of locality. The 1993 amendment removing political campaign signs from the chapter's definition of "advertisement" did not insulate them from the in-right-of-way prohibition.

Only Fairfax County is authorized to enter into an enforcement agreement with the Commissioner. Section 33.1-375.1(A) names Fairfax County specifically, and § 33.1-375.1(D) does not extend its terms to other localities. Other counties or cities that wanted similar authority would need separate enabling legislation.

The 2008 opinion is overruled to the extent inconsistent. The 2008 opinion (08-013) had been read to suggest that the same authority might run to other localities. The 2009 opinion explicitly cabins that interpretation: 08-013 addressed Fairfax County only.

Fairfax-only timing limits. Within Fairfax County, the agreement reaches political signs only after they have stayed up more than three days past the election, and special-event signs only after they have stayed up more than three days past the event. Section 33.1-375.1(C)(1).

What this meant at the time

For political campaigns and candidates (as of 2009)

Stay out of the right-of-way. Place yard signs on private property or on commercial property with the owner's permission, with appropriate setbacks from the road shoulder. Statewide, VDOT could remove signs in the right-of-way without notice.

For VDOT field staff (as of 2009)

The Commissioner had statewide authority to remove political signs in rights-of-way at any time. In Fairfax County, the County had its own delegated authority under an agreement, but only for signs that remained more than three days after the election. Outside Fairfax, VDOT was the sole enforcement actor.

For Fairfax County code enforcement (as of 2009)

The County's enforcement agreement with the Commissioner gave County staff a parallel sign-removal authority within the limits the statute set. The County still could not enforce against signs in their initial brief campaign-window, only signs that overstayed the three-day-after-election grace.

For other Virginia counties and cities (as of 2009)

If your locality wanted to mirror Fairfax's authority to enforce § 33.1-373, the route was a request to the General Assembly to extend § 33.1-375.1's delegation to additional localities. Self-help would not work.

Common questions

Q: Can a candidate place signs on the grass strip between the sidewalk and the road?
A: That grass strip is usually part of the state highway right-of-way. Section 33.1-373 prohibits placing advertisements there. The fact that it looks like an unowned public space doesn't make it lawful.

Q: What about signs on private property next to the right-of-way?
A: Those are governed by the rest of Chapter 7 (and by local zoning), not by § 33.1-373. Private property signs are not the subject of this opinion.

Q: What if my sign is up for less than three days?
A: Statewide, the AG opinion says any time in the right-of-way is a violation, and the $100 penalty plus removal applies. The three-day grace in § 33.1-375.1 is a limitation on the Fairfax County enforcement agreement specifically, not a statewide shield. VDOT can still act.

Q: Why the 1993 amendment if it didn't change the substantive rule?
A: The 1993 amendment removed political campaign signs from the chapter's definition of "advertisement" for purposes of the chapter's adjacent-to-right-of-way provisions and permit regimes. That made political signs easier to handle outside the right-of-way. It did not touch the in-right-of-way prohibition in § 33.1-373, which uses "advertisement" in a context that the AG read to still cover political signs.

Q: Could a campaign avoid a sign penalty by saying it was a private citizen, not the campaign, who put the sign there?
A: Section 33.1-373 imposes the civil penalty on "[a]ny person who in any manner" places the sign. Liability is on whoever puts it up, not just on the campaign.

Citations and references

Statutes and regulations:

• Va. Code Ann. § 2.2-505
• Va. Code Ann. §§ 33.1-351 through 33.1-378 (Outdoor Advertising Act, predecessor to Title 33.2 provisions)
• 24 Va. Admin. Code § 30-20-80 (use or occupancy of state highway rights-of-way)
• 1993 Va. Acts ch. 538 (deletion of political campaign signs from § 33.1-351 definition)

Cases:

• Turner v. Commonwealth, 226 Va. 456 (1983), statutory interpretation focused on legislative intent
• Prillaman v. Commonwealth, 199 Va. 401 (1957), in pari materia

Related AG opinion:

• 2008 Op. Va. Att'y Gen. No. 08-013 (Bobzien) (Fairfax County enforcement of § 33.1-373), to the extent inconsistent, overruled by this 2009 opinion

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-081-Ekern.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell, Attorney General

February 2, 2009

The Honorable David S. Ekern, P.E.
Commissioner, Virginia Department of Transportation

Dear Commissioner Ekern:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask for clarification of an opinion issued July 28, 2008, to David Bobzien (the "2008 Opinion").[1] Specifically, you ask whether the 2008 Opinion has general application throughout the Commonwealth or whether it applies only to agreements between the Commonwealth Transportation Commissioner and Fairfax County under § 33.1-375.1.

Response

It is my opinion that only Fairfax County is authorized to enter into an agreement with the Commonwealth Transportation Commissioner to enforce the provisions of § 33.1-373 as addressed in the 2008 Opinion.[2]

Applicable Law and Discussion

The General Assembly has enacted Article 1, Chapter 7 of Title 33.1, §§ 33.1-351 through 33.1-378 ("Article 1"), of the Outdoor Advertising in Sight of Public Highways Act (the "Act") to govern outdoor advertising in and adjacent to highway rights-of-way. Section 33.1-351 establishes the overall policy implemented by the Act and provides, in part, that:

In order to promote the safety, convenience, and enjoyment of travel on and protection of the public investment in highways within this Commonwealth, to attract tourists and promote the prosperity, economic well-being, and general welfare of the Commonwealth, and to preserve and enhance the natural scenic beauty or aesthetic features of the highways and adjacent areas, the General Assembly declares it to be the policy of the Commonwealth that the erection and maintenance of outdoor advertising in areas adjacent to the rights-of-way of the highways within the Commonwealth shall be regulated in accordance with the terms of [Article 1] and regulations promulgated by the Commonwealth Transportation Board pursuant thereto.

Section 33.1-12(3) empowers the Commonwealth Transportation Board (the "Board") "[t]o make rules and regulations …, not in conflict with the laws of this Commonwealth, for the protection of and concerning traffic on and the use of systems of state highways and to add to, amend or repeal the same." Section 33.1-19 stipulates that "[t]he rules and regulations …, prescribed by the Board …, shall have the force and effect of law and any person, firm or corporation violating any such rule or regulation … shall be guilty of a misdemeanor." Pursuant to its authority, the Board has adopted a regulation prohibiting the use or occupancy of rights-of-way within the system of state highways except for travel or as authorized by permit or as provided by law.[3] Section 33.1-369(13) provides that no advertisement or advertising structure shall be erected, maintained, or operated if it is inconsistent with regulations adopted by the Board.

Section 33.1-375 provides that:

Any sign, advertisement or advertising structure which is erected, used, maintained, operated, posted or displayed in violation of §§ 33.1-369, 33.1-370, or § 33.1-372 or for which no permit has been obtained where such is required, or after revocation or more than thirty days after expiration of a permit, or which, whether or not excepted under the provisions of § 33.1-355, is not kept in a good general condition and in a reasonably good state of repair and is not, after thirty days' written notice to the person erecting, using, maintaining, posting or displaying the same, put into good general condition and in a reasonably good state of repair, is hereby declared to be a public and private nuisance and may be forthwith removed, obliterated or abated by the Commissioner or his representatives.

Section 33.1-373, regarding placement of advertisements within the limits of any state highway, provides that:

Any person who in any manner (i) paints, prints, places, puts or affixes any advertisement upon or to any rock, stone, tree, fence, stump, pole, …or other object lawfully within the limits of any highway or (ii) erects, paints, prints, places, puts, or affixes any advertisement within the limits of any highway shall be assessed a civil penalty of $100…. Advertisements placed within the limits of the highway are hereby declared a public and private nuisance and may be forthwith removed, obliterated, or abated by the Commonwealth Transportation Commissioner or his representatives without notice…. The provisions of this section shall not apply to signs or other outdoor advertising regulated under Chapter 7 (§ 33.1-351 et seq.) of [Title 33.1].

Section 33.1-378 provides that Article 1 "shall be liberally construed with a view to the effective accomplishment of its purposes." Prior to the 1993 Session of the General Assembly, § 33.1-351 defined the term "advertisement" to mean

any writing, printing, picture, painting, display, emblem, drawing, sign, or similar device which is posted or displayed outdoors on real property and is intended to invite or to draw the attention or to solicit the patronage or support of the public to any goods, merchandise, property, real or personal, business, services, entertainment or amusement manufactured, produced, bought, sold, conducted, furnished or dealt in by any person or for any political party or for the candidacy of any individual for any nomination or office; the term shall also include any part of an advertisement recognizable as such[.][4]

A primary goal of statutory interpretation is to ascertain the intent of the General Assembly.[5] In addition, statutes pertaining to the same subject should be considered in pari materia.[6] While the 1993 Session of the General Assembly deleted political campaign signs from the definition of "advertisement" in § 33.1-351,[7] this is not necessarily dispositive of whether political campaign signs may be posted within state highway rights-of-way. Language preceding the definitions contained in § 33.1-351 notes that the defined terms are to have the meanings provided, unless a different meaning appears from the context. In addition, § 33.1-351, which describes the Act's general policy, specifies that the Act is intended to address and regulate outdoor advertising in areas adjacent to highway rights-of-way. Unlike most of the provisions in the Act that govern outdoor advertising in areas visible from highways and adjacent to highway rights-of-way, § 33.1-373 and, in part, § 33.1-375 govern signs and advertisements within the limits of the highway, which would include highway rights-of-way.

Section 33.1-375.1(A) specifically authorizes the Commissioner to enter into such agreements with Fairfax County, but imposes limitations on the authority granted under such an agreement. One such limitation provides that signs and advertising supporting an individual's candidacy for elected public office or other ballot issues are not subject to an agreement between the Commissioner and Fairfax County unless they have been in place for more than three days after the election to which they apply.[8] Section 33.1-375.1(A) also provides that "[s]igns and advertising promoting and/or providing directions to a special event" that remain in place more than three days after the event concludes and other "signs and advertising erected for no more than three days" are not subject to an agreement between the Commissioner and Fairfax County. The foregoing limitation, explicitly noted by the statute, does not apply to an agreement between the Commissioner and any other locality under § 33.1-375.1(D). By prohibiting Fairfax County from enforcing § 33.1-373 for signs and advertising relating to political candidacy and other ballot issues and in characterizing the prohibition as a "limitation" in § 33.1-375.1, it is clear that § 33.1-375.1 contemplates that such signs and advertising and ballot issues are otherwise subject to and governed by § 33.1-373. Section 33.1-375.1(D) expressly limits enforcement of § 33.1-373 by Fairfax County, but does not apply to agreements between the Commissioner and other localities.

Conclusion

Accordingly, it is my opinion that only Fairfax County is authorized to enter into an agreement with the Commonwealth Transportation Commissioner to enforce the provisions of § 33.1-373 as addressed in the 2008 Opinion.[9]

Thank you for letting me be of service to you.

Sincerely,

Robert F. McDonnell
Attorney General

1. See Op. Va. Att'y Gen. No. 08-013, available at http://www.vaag.com/OPINIONS/2008opns/08-013-Bobzien.pdf.

2. The 2008 Opinion addressed a question that was specific to Fairfax County. To the extent that this opinion is inconsistent with the 2008 Opinion, that opinion is overruled. See id.

3. See 24 VA. ADMIN. CODE § 30-20-80 (1996).

4. See VA. CODE ANN. § 33.1-351 (1990).

5. See Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).

6. See Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957); 1996 Op. Va. Att'y Gen. 134, 135.

7. See 1993 Va. Acts, ch. 538, at 668, 668.

8. See § 33.1-375.1(C)(1) (2005).

9. See supra note 2.