Some Policy Considerations For Sign Legislation

Signs and Their Functions

By Dr. R. James Claus

This article originally appeared in the August 1973 issue of Signs of the Times magazine.

It’s appropriate to offer some elementary information about signs and to define some of the more common terms to be found in the literature on signage. Because controversies over banning billboards, for instance, quite often lead to court proceedings, it is important to consider the ways in which courts view the various categories of signs and the distinctions which they make.

Signage is a communications medium, and communications experts recognize it as such. As a means of communication, signage contains subtleties like any other medium. While signs share some of the communication functions of other media, the courts do distinguish them, albeit tacitly, from other media. The First Amendment, which assures the right to freedom of speech, has not yet been extended to all aspects of signs to protect them from unfair restrictions. But the courts have other conventions for assuring freedom of speech to signs. The courts extend this protection by refusing to allow arbitrary controls over the copy colors used, etc. The courts have been reluctant to tolerate arbitrary subjective controls. For anyone who wishes to educate himself further in the matter, a lucid discussion of the arbitrariness of some controls is found in Signs. Legal Rights and Aesthetic Considerations (Claus, et al, 1972).

The commercial, private-enterprise sector of the industry comprises two distinct groups, differentiated by the kinds of signs they produce: the makers of on-premise signs and the makers of off-premise signs. This is not a specious distinction contrived to delight specialists, but rather a legally recognized distinction repeatedly used in court cases.

Regardless of a person’s disposition or prejudices toward the visual phenomenon of commercial signs, one can’t easily prove that signs on the premises of the businesses to which they refer are extraneous. Because their relation is self-evident, there can be little dispute over their function: one sees and knows they have a communicative function. On-premise signs are legally defined as an accessory land use. Therefore, under law, they are analogous to the driveway and pumps of a gasoline service station, the stacking room at a car wash, or the garage of a detached, single-family house. They are not the primary structure on the land, but are accessory to the main land use. They are a characteristic use that is functionally tied to the successful, or adequate, performance of the primary use. The on-premise sign is the main communication device for a retail site; its physical aspects are expected to be reasonably related to the communication function which the sign performs.

Off-premise signs (billboards), on the other hand, are, by law, a land use. This means they generate the primary value of the property on which they are located. They are unique as a recognized land use only because they are not designed for human occupancy. The significance of the legal definitions of billboards is that the courts now understand that excluding them is equivalent to discriminating against other land uses. Recent court cases are making the point that discriminating against a particular land use is logically akin to the arguments favoring segregated housing in cities.

A careful consideration of how signs communicate reveals a spectrum of possible effective means. Even to perform the basic tasks of informing and directing, signs have to be strategically designed and placed. Sometimes effectiveness depends on obvious external factors. In the more complex task of image building, in which signs have an astounding influence, their effectiveness depends on many subtle internal factors, such as the associations that the viewer is expected to make with particular styles of lettering or with particular colors.

An astute businessman realizes that signs can influence the volume of business conducted and can be instrumental in various market strategies. Factors to be considered include the extent of the trade area, the type of traffic and a profile of the prospective customers.

An often overlooked result of signage is the volume of impulse buying that signs can attract. To illustrate this point — the effect of signs on supply and demand — we will reference an expensive discovery made by a bank in California. The efficient functioning of a bank is expected to be independent of the amount of signage visible from its exterior. Using this perfectly valid expectation, a major bank adopted a policy of locating its shopping-center branches within the shopping-center building, foregoing the maximum exposure usually afforded by a corner location. In some instances, the bank owned corner property but chose to rent it or sell it to other businesses. The underlying assumption was the convenience of the bank’s location inside this shopping center would make the added exposure of the corner site unnecessary. A salutary side effect that this plan anticipated was merchants within the shopping center would be drawn to the bank most convenient to their place of business.

Contrary to expectation, customers chose to do their banking at other establishments. The shopping-center banks did poorly in their new, supposedly strategic locations. It was noted, however, that those branches facing the street continued to enjoy a consistently higher volume of business.

Needless to say, the bank returned to its former policy of occupying corner locations. The branches that were lagging behind showed a clear rise in business after a year and a half on the corner preference scheme.

Of course, one can find retail establishments of many varieties, whose signage is minimal, that continue to prosper. These cases can usually be ascribed to the possession of a location that virtually assures a monopoly or to protection from nearby competition by zoning laws. It is generally accepted, however, that any retail location can draw a greater volume of business, if it wishes to, by effective signage. This doesn’t mean 10 signs are better than two; the point remains that the merchant desires the freedom to have the type of signage that suits his needs.

The relevance of these remarks to signage is often disguised by a double standard. Some land uses (homes) are allowed to exist although they violate current material specifications, while other land uses (billboards) are not allowed to deviate from new regulations in any way. Moreover, the code, which has dubious reasons for its careful fire precautions, remains unchallenged. The objection being raised is not that fire codes are unnecessary, but that those who write such codes, whether for homes or for signage, sometimes fail to understand what they are attempting to protect. They may confuse feared disasters with what is known to be a danger. The real significance of poorly thought-out restrictions is they are being used to declare signs illegal or unsafe, or, in simpler language, they are the justification for confiscating property. When amortization is used to phase out a sign for its unsafe condition, it is legally equivalent to requiring the owners of older homes to accept terms of amortization for their “unacceptable” property.

It’s difficult to justify the use of any means of enforcement, such as amortization, if it is used selectively. Demanding that sign owners conscientiously meet codes that homeowners are not asked to observe is clearly a discriminatory tactic. On the other hand, many people may feel that the use of amortization, to dispose of property built before the regulations came into existence, is equally discriminatory. The essential question that must be resolved at the outset of any sign code is whether amortization is ever justified.

Another rationale for sign control, often considered similar to protection of public safety, is the preservation of the public welfare. This is usually construed to mean that a change in zoning is sometimes needed to make urban conditions more livable. There are various theories of zoning, all of which claim to be directed toward the greatest welfare of the public. Inherent in all of these theories is the fact that the interests of a particular group will be favored. For example, the concentric-ring theory of zoning sees the city as comprising a downtown core from which various other sections develop in concentric rings. This scheme is of greatest advantage to the man who is sufficiently wealthy to own the land bordering on that downtown core, so that when expansion begins to occur, he has the option of selling his property at a premium.

Likewise, it is true that changes in zoning are bound to benefit some, to the detriment of other sectors of the community. For example, the special-interest groups, who want the visual environment zoned to reduce the number of signs, are working to the detriment of the businesses to which those signs belong and whose economic survival is most dependent on their signage. A classic example of the damage suffered when signs are eliminated is the non-franchised motel. Many owner-operated motels are absolutely dependent on their non-standardized billboards to draw customers from the traffic on the freeway that passes by, or even over, their place of business. Clearly, a change in zoning can effectively force these small establishments out of business.

Technicalities can make necessary zoning changes cause less hardship than they normally would. For example, regulation can make special exceptions, called laws of variance, to permit some signs that may be nonconforming (though not illegal).

A well-constructed ordinance can greatly enhance the visual environment’s quality. Unfortunately, many cities, whose schemes for regulating signs have evolved, sometimes find the problem of a cluttered visual environment remains. Most often, it’s because their legislation doesn’t reflect the community’s needs; rather, it may emphasize the special skills of the people who drafted the ordinance. Thus, a building inspector will see that the section of the code dealing with physical specifications is particularly rigid. Or, if a planner is directing the efforts to write the ordinance, its zoning will likely receive more than its fair share of attention. This type of imbalance is unfortunate for the city, but it’s mostly unfair to those who are made to conform to the code by having their property confiscated.

Rationales for Sign Control

A section on physical specifications is a universal element in any program that attempts responsible sign control. This usually includes structural, material and electrical specifications. The codes vary from one city to another, but the basis is always an attempt to protect the safety of the general public. A reasonable code is obviously a benefit to everyone involved.

The difficulty in writing efficient and practical specifications is that great expertise is required to recognize the real dangers. An exemplary case of how specifications can sometimes err is the building code that is followed in the building of new houses. The room that is most carefully fireproofed and separated is the garage. Clearly, the reason is not because it’s the most-used room (which would probably vary between the kitchen and the bathroom); the reason is, rather, the fear of gasoline fires originating from the fuel stored in the automobile.

Our investigations have revealed that only two recorded fires have been started by gasoline in a garage, and neither was fatal. The room in which the greatest number of fires are known to start is the kitchen.

Yet no one attempts to convince American consumers the kitchen should be built separately from the house. Obviously, the standards applied to houses now being built can’t be justly applied to older homes. The very materials used in construction several decades ago would not be allowed today. But, because many of these homes are adequate in other respects, it is thought to be totally inequitable to make new standards retroactive.

Wade Swormstedt

Wade Swormstedt

Wade is Executive Director of the Foundation for the Advancement of the Sign Industry. Formerly he was Editor and Publisher of Signs of the Times magazine.

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Posted in 1st Ammendment / Freedom of Speech, Amoritzation, Research, Sign Codes, Signs' Advertising Value, Traffic Safety.