Street Graphics

The following article was written in 2005.

In 1971, the American Planning Assn. (APA) began distributing a book by Daniel Mandelker and William Ewald entitled Street Graphics and the Law. That book recommended the uncompensated taking of signs and control of a sign’s design, message and aesthetics.

While the sign industry was making great strides in the Supreme Court, Street Graphics was revised and republished in 1988. Although it retreated from advocating restraint of trade, its other positions remained largely intact. The second edition minimally impacted the sign industry because it proactively established its rights and educated regulators.

However, a new edition of Street Graphics has just been published, and concerns have reoccurred about anti-sign, regulatory bias and activism.

The authors
Two people authored the original Street Graphics, William R. Ewald, Jr. and Daniel R. Mandelker.

Mandelker, the book’s primary author and a lawyer, is not a recognized market-research expert nor a transportation engineer. His qualifications are based almost entirely on his legal credentials. Unfortunately, even though he claims to be a Constitutional authority, he has been consistently wrong in anticipating the direction of the Supreme Court in this area of law. Perhaps his personal opinions have produced a philosophical book rather than a credible guide to lawful, scientifically sound regulation.

None of the Street Graphics authors has performed any hard research of their own. They are not licensed nor recognized as experts qualified to speak authoritatively to the issues addressed in the book in the areas of valuation, transportation engineering, marketing, or economics. They simply draw their own conclusions from the research of others — conclusions that even the researchers did not feel were warranted — and, in some cases, have even presented the research as if it were their own.

Validity and research reliability
Research is considered valid when the data accurately reflects the specific phenomenon that it claims to represent. It is reliable when it is reproducible, and when the data is properly drawn from a large enough representative sample to statistically reflect the whole. It is most reliable when it involves the use of several objective sources of data that independently confirm the same findings. In addition, the conclusions of the researchers — the primary source — of the material are considered more trustworthy than the conclusions drawn by another individual based on reading the researchers’ findings. Based upon these standards of validity and reliability, the conclusions drawn from research cited in Street Graphics fall short.

First, the research cited in the report pertains to phenomena other than that to which the results are applied. For example, Neil Lerner’s research on driver information overload is used in Street Graphics to justify restricting the number of on-premise signs along road ways, particularly where traffic conditions are complex.

However, Lerner’s research was based solely on public-highway signage, which is located in the right-of-way, and is specifically required by federal law to protect public safety. In no way is the research applicable to the authors’ conclusion that adopting their regulatory approach, based upon their interpretation of the study, will promote traffic safety. Indeed, Street Graphics specifically exempts public-highway signs from its control.

Similarly, the Pennsylvania State Transportation Institute studies, which are referenced in Chapter 2 to support the book’s traffic-safety assertions, weren’t traffic-safety studies. They were visual-acuity studies designed to establish readability standards, based upon visibility and legibility.

The researchers drew no conclusions pertaining to traffic safety. The author has simply misapplied the studies’ conclusions in order to advance the Street Graphics agenda.

Secondly, numerous studies have concluded that readable and conspicuous on-premise business signage is valued by motorists and helpful to them as they navigate the roadway. Some researchers have even concluded on-premise signage helps prevent traffic accidents. By comparison, no reliable study has ever concluded that on-premise signage, legally erected on private property, contributes to traffic accidents. Street Graphics does nothing more than build a house of cards; misquoting and mischaracterizing other people’s research in support of personal biases.

New attack, old tactic
Unfortunately, mischaracterization isn’t new in Street Graphics. Its first two iterations mischaracterized the research of Rockefeller University Professor George A. Miller as to the ability of the human mind to process multiple items of information in milliseconds of time. Miller found that, for a specifically defined set of circumstances, this ability amounted to a “magic number of seven” items of information.

Street Graphics seized upon his findings and claimed it supported sign regulations that would restrict sign contents to seven items of information. Upon learning of Street Graphics‘ conclusions, Miller chided them publicly for failing to understand his research methods, research language and conclusions.

“The situation would be amusing, ” he wrote, “if misrepresentations of my work were not being taken as the basis for enacting ordinances to control street graphics . . . . I must strongly protest the distortion of my own work and must deplore the enactment of restrictions based on such an inadequate understanding of the psychological processes involved. ” [1]

Following this public reprimand, the authors took out all reference to Miller’s research and his “magic number of seven” in this third edition. However, they did not change the Street Graphics methodology. Instead, the authors have recommended limiting sign content to 10 items, but still without any supporting data. Unfortunately, for the municipalities that follow the book’s recommendations, the limit to 10 items is no more justifiable than the limit to seven.

Contrary to the authors’ claims, the research on readability and visibility issues contained in the book is anything but groundbreaking. The Federal Highway Administration (FHWA) has been studying the field for many years, with its research forming the basis of its Manual on Uniform Traffic Control Devices. Respected publications, such as Transportation in an Aging Society, 2 are just the tip of the iceberg of signage research. Even the APA’s own recent publication, Contextually Sensitive Sign Design (which now appears to be unavailable), addressed some of the same Street Graphics issues, though considerably more in depth. Voluminous amounts of credible research have been disregarded in the drafting of Street Graphics.

Aesthetics
Consumers vote for aesthetic preferences with their dollars, and retailers, who know their customers, typically seek a storefront aesthetic that will attract people. This perspective is supported by numerous studies, which have clearly demonstrated that public perception of signs is very different from what regulators purport. [3] By contrast, Street Graphics cites no research or survey data to confirm that aesthetics improve with restrictions on the quantity or size of signs, or design review of signs’ contents. The recommendations are purely subjective.

The on-premise business sign is carefully constructed speech, and its necessity derives from consumers’ desire to conduct business within the specially designated business district. Street Graphics fails to accept the diversity of the American marketplace, with its wide variety of marketing approaches for goods and services. Commercial aesthetics in a competitive marketplace are regulated automatically by consumer preference.

Traffic safety
Much of the research cited to support the book’s proposed limits on size and quantity of signs is based on driver behavior in response to traffic signs, which must be noted by the driver because they directly relate to driving. However, contrary research is ignored.

For instance, the book does not cite the Gittings study of tort claims filed against the Pennsylvania Dept. of Transportation, [4] which found that 22% of the lawsuits arising from highway accidents (on both interstate and intrastate systems) alleged signage deficiency as either a contributory or primary cause of the accident.

A study undertaken by the FHWA[5] found that commercial signs did not adversely affect safety. Several researchers have independently concluded that, if a sign is not especially pertinent to a driver’s needs or interests, rather than being a distraction, it will generally be ignored. Certainly, the sign will have no distracting effect on the driver’s ability to maintain speed, stay within the correct lane or avoid an unsafe maneuver or traffic infraction. [7]

Voluminous amounts of credible research have been disregarded in the drafting of Street Graphics.

And, in a recent study, Richard N. Schwab, a former FHWA program manager for research on highway visibility and night-driving safety, concluded, “Traffic safety is not jeopardized by the sign itself or some sort of stimulus overload; instead the culprit is inadequate sign size or lighting, or inappropriate placement, or a combination of these factors. ” [1]

In fact, researchers have concluded that well designed and strategically placed signs may actually improve traffic safety because they”wake up” drivers, or direct their attention to the surroundings when alertness may be lagging. [8]

Furthermore, an FHWA study concluded that commercial high-rise signs, located at high-traffic-volume intersections, enhanced traffic safety, provided they met federal-highway signage standards of legibility, readability and conspicuity (or contrast with background). [9]

Moreover, evidence indicates that information deficiency, at a point where drivers need or want it, may increase the likelihood of accidents. [10] A signage information deficiency exists when a driver can’t find the necessary information in time to react safely, whether the information doesn’t exist, lacks visibility or readability, or is not located within the “cone of vision” — that area in which a driver has a generally clear view of objects in and around the roadway.

None of this credible research is referenced in Street Graphics. The failure prompts serious questions for those considering the book’s recommended policies.

Amortization
Just compensation for the taking of private property is a contentious issue in the United States. Moreover, for some time, the U. S. Constitution was interpreted to apply to federal-government actions, not just those of the states. Even today, for matters of local land use, state and local rules interpret the meaning of “private property”and “just compensation. ”

For instance, Ohio only allows compensation to be paid for real-estate takings. Hence, if the state enacts eminent domain in a chartered municipality, it only must compensate for the”definable real estate. ” Businesses and other damages are not compensatory. Arizona, on the other hand, will not even permit the “taking of a nail” without paying just compensation.

Street Graphics uses this to mislead the reader regarding amortization. [11] The book doesn’t mention that, if a local municipality uses federal funds, such as in an urban-renewal program, it then must follow the federal 1970 Rehabilitation and Removal Act’s takings guidelines.

Similarly, the federal government doesn’t permit amortization where it has jurisdiction. It always requires compensation. Since 1958, when Eisenhower developed the Highway Act, these rules have been continually redefined. By 1965, states that desired federal-highway funds were required to conform to federal compensation guidelines for sign removals along the federal interstate and primary-highway systems.

Although Street Graphics vaguely references that, it doesn’t state clearly that amortization of signs located within 660 feet of the federal interstate and primary highway systems isn’t permitted. Instead, federal law mandates monetary compensation based on the sign’s true economic value. Nor does it disclose that failure to pay compensation will cause a 10% loss of the state’s federal-highway funds.

Stuck in the past
When the first edition of Street Graphics and the Law was published, First-Amendment law pertaining to commercial speech was still developing. The landmark case, Metromedia, Inc. v. San Diego, which first applied the First Amendment to signs, was decided several years later, and a succession of other sign cases quickly undermined the Street Graphics approach.

Despite recent court rulings, Street Graphics relies on a 1949 case to support its advice. The work states, “Courts apply the presumption [of constitutionality] to legislation affecting economic interests in land. In the absence of a free-speech claim, a sign ordinance affects only the economic interests of the sign owner and the presumption applies. ”

The International Sign Association has enlisted numerous attorneys with expertise in the First Amendment, who understand sign users’ rights. Their findings have been published and distributed broadly.

Regarding ISA’s legal position, the courts, particularly the US Supreme Court, have been trending in the same direction over the past 50 years as our legal advisors have predicted, and in opposite direction of the position held by Street Graphics. Further, ISA has focused on current legal opinion, while Street Graphics and its supporters remain mired in the past.

The facts are available
Street Graphics has consistently minimized signs’ value, claiming that small signs are just as valuable for businesses as large signs, and that signs are little more than an indexing system. The publication of “The Value of Signs” was a professionally valid, research-backed and peer-reviewed approach to signs’ values, and it incontrovertibly established that larger signs are more valuable, and that signs perform very valuable functions beyond indexing.

Many of the myths promulgated by Street Graphics were debunked with factual research and expertise in the book Unmasking the Myths About Signs. These myths included the notion signs contribute negatively to traffic safety, that sign content can legally be censored, that sign limitations help rather than harm the economy, that sign regulations help small businesses, that signs are bad for aesthetics, and that signs are bad for the community.

The Signage Sourcebook offered regulators a comprehensive guideline to writing a constitutionally sound sign code without having to compromise the public-policy objectives valued by the community or the civil rights of its members. It contrasts sharply with the model code laid out in Street Graphics, which encourages prior restraint and uncompensated taking of private property, as well as a regulatory approach that will undermine local public-policy goals, traffic safety and aesthetics.

These books, and many other resources that post-date the last printing of Street Graphics, are already diminishing the new edition’s impact. And ISA isn’t alone in educating regulators about on-premise signage. The U.S. Small Business Administration has an excellent website devoted to the benefits of on-premise signage. The New York Small Business Development Center  (add reference here) has published a signage book of its own, geared toward the entrepreneur, and NxLevel has begun training small-business owners on the importance of well-designed quality signage to business success.

Sign-industry members must also be ready to take action. Much work is being accomplished. Regulators need to be educated about the benefits, not just the costs, of proper sign regulation and how it can help the community optimize the use of urban land, prevent urban sprawl, efficiently use public infrastructure, and foster an open and pluralistic society. The educated regulator can then join the industry, sign users and society as a whole in choosing the best regulatory model.

The industry is more prepared than ever to reveal Street Graphics’ inherent faults. Our position’s strength is growing more recognized as professionals and experts become involved in our effort. We have strong allies working to secure important legal change, particularly at the federal level. Ultimately, the republishing and promotion of Street Graphics is a challenge we can refute.


Footnotes
1. Signs of the Times, April 1973.

2. Transportation in an Aging Society: Improving Mobility and Safety for Older Persons, Transportation Research Board Special Report 218, Transportation Research Council, Washington, D.C., 1988.

3. Anderson, Ray T., Director of Research, “Public Attitude and Responses Toward Highway Travel Service Outdoor Advertising”, 3M National Research, 1970.

4. Pennsylvania Tort Claims Study; Gittings, 1985.

5. Cirillo, Deitz and Beatty; U. S. Government Printing Office, Federal Highway Administration, Washington, D. C.; August 1969, reprinted 1976.

6. Wachtel, Jerry and Ross Netherton, Safety and Environmental Design Considerations in the Use of Commercial Electronic Variable-Message Signage, Report No. FHWA/RD-80/051, Federal Highway Administration, Washington, D. C., June 1980; A. W. Johnston and B. L. Cole. “Investigations of Distraction by Irrelevant Information,” Australian Road Research, Vol. 6 No. 3, pp. 3-23, 1976; Mace, D. M., Garvey, RM. & Heckard, R. F. 1994. Relative visibility of increased legend size vs. brighter materials for traffic signs. Publication No. FHWA-RD-94-035; and Morrison, Drs. Bruce J. and Marvin J. Dainoff Professors of Psychology, Eye Movement Characteristics in Recall of Incidentally Presented Stimuli When Attention is Divided, Commissioned by Miami University Faculty Research Committee.

7. Most drivers can seek and process vast amounts of information, and filter out all but what is needed, in milliseconds. Additionally, drivers’ samplings of signage displays containing information unrelated to the driving task or traffic environment must be sound, or there would be more accidents in the vicinity of advertising signs. See A. W. Johnston and B. L. CoIe.

8. E.g., J.A. Prince, Professor of Ophthalmology, Ohio State University.

9. See, Analysis and Modeling of Relationships Between Accidents and the Geometric and Traffic Characteristics of the Interstate System; Cirillo, Dietz and Beatty; U. S. Government Printing Office, Federal Highway Administration, Washington, D.C. August 1969, reprinted 1976.

10. See Pennsylvania Tort Claims Study; Gittings, 1985.

11. Amortization of signage occurs when a city decides that, rather than ordering a legally nonconforming sign to be immediately removed, which would prompt a “takings” claim requiring just compensation, it will allow the owner an arbitrary “amortization” period during which it is assumed that the business advantage afforded by the larger sign will produce revenues sufficient to compensate the owner for the eventual loss of the sign. When the amortization period is concluded (typically five to 10 years), the business must remove the sign at its own expense.

 

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