Chapter 13 Aesthetic Considerations

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 13 Aesthetic Considerations

A. Aesthetic Considerations Alone

The question is often raised whether a municipality may pass zoning that requires a developer to satisfy some type of aesthetic review board. Often, the ordinances speak in terms of an architectural review board. The general law on this subject has been that zoning ordinances may not be based on aesthetic considerations alone.¹ However, there is no objection to an ordinance that tends to promote aesthetic purposes if its reasonableness may be sustained on other grounds.²

The U.S. Supreme Court case Berman v. Parker³ is frequently cited as supporting aesthetic considerations in zoning regulations. The language in Berman regarding aesthetic considerations is dictum, as the Court was addressing a taking under the Fifth Amendment. Nonetheless, the language is still frequently cited as persuasive authority. The language is:

The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled (citation omitted).⁴

Though many courts are still unwilling to rely exclusively on aesthetics to uphold zoning ordinances, there appears to be a modern trend toward giving more weight to aesthetic considerations. And some courts now recognize zoning rules for purely aesthetic reasons (or at least aesthetics as the primary reason). For example, a zoning ordinance that completely excluded auto wrecking yards was upheld by the Oregon Supreme Court as rational, based on aesthetic considerations.⁵ The court held that "[i]t is within the police power of the city wholly to exclude a particular use if there is a rational basis for the exclusion" and that "[i]t is not irrational for those who must live in a community from day to day to plan their physical surroundings in such a way that unsightliness is minimized."⁶

It has been said that aesthetic values underlie many traditional land use regulations such as the separation of incompatible uses.⁷ Whether aesthetic values may be the sole basis for the regulation of uses through zoning, however, depends on the jurisdiction. Generally, aesthetic considerations will be upheld as a basis for a zoning regulation if they are coupled with the preservation of property values or the promotion of the general welfare.⁸ In the case of Neef v. City of Springfield,⁹ the Supreme Court of Illinois upheld a zoning classification that precluded the use of the plaintiff's property as a gas station. The court held that to allow the gas station would result in loss to surrounding property owners and that, while aesthetic considerations alone cannot sustain an ordinance, aesthetics, coupled with the protection of property values could. The court stated:

In that case (Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 94 N.E. 920 (1911)), we held that an act of the legislature prohibiting the erection of a structure of any kind or character within 500 feet of a public park or boulevard, for the purpose of placing advertisements of any kind or character thereon, was unconstitutional because the enactment of such a law was designed solely for the promotion of aesthetic purposes, and had no reasonable relation to the safety, health and morals of the public.
It is no objection, however, to a zoning ordinance that it tends to promote an aesthetic purpose, if its reasonableness may be sustained on other grounds. The question here then is whether or not, disregarding the evidence relating to the beauty of the neighborhood and the streets and other aesthetic purposes, the ordinance should be sustained on the grounds of public health, safety, morals or general welfare.
* * * It is undisputed in the evidence that although the value of appellants' lot would be increased if they could be used for commercial purposes, the erection of a filling station or any commercial building thereof will decrease the value of the other property in the neighborhood by an even greater amount. In other words, to permit appellants' lots to gain in value it is necessary for the entire neighborhood to lose and the city to suffer by the resulting loss in taxable value. The prevention of such a loss by the city is one of the specific purposes for which the zoning power is granted, and is directly related to the public welfare. On this ground alone, we think the ordinance should be sustained.¹⁰

The Illinois Supreme Court shed some light on this area in LaSalle National Bank v. City of Evanston, in which it indicated that in some instances aesthetic factors may be utilized as the sole basis to validate a zoning classification.¹¹ The Supreme Court of Georgia has held similarly.¹² Although the Illinois court's language in LaSalle National Bank v. City of Evanston might be considered dicta in light of the fact that the issues raised related to the traditional zoning factors of density and height, it is still important to take note of the court's analysis. Some of this rationale includes:

Thus prior decisions of this court, while recognizing aesthetic elements, have not deemed them to be controlling in zoning cases. The reason advanced for declining to afford aesthetic qualities significant import is that the subject does not lend itself to exact definition but varies as to personal taste. However, there would appear to be significant authority that aesthetic factors may, in some instances, be utilized as the sole basis to validate a zoning classification or be acknowledged as a viable factor in zoning determinations. We are of the opinion that in the present case aesthetic qualities are a properly cognizable feature and that the evidence presented is supportive of defendant's position is that the R-5A use is not arbitrary or unreasonable and is in accord with the general public welfare.¹³

Other jurisdictions have employed a similar tactic, and the tide seems to be turning in favor of allowing zoning regulation for purely aesthetic purposes.¹⁴

Although a significant number of cases involving aesthetic considerations have dealt with the subject of signs, a growing number of cases have been brought dealing with the subject of wind farms and fracking.¹⁵ For example, some communities show great resistance to the idea of having wind turbines with large rotating blades 200 to 400 feet in the air in their neighborhood. In Ecogen LLC v. Town of Italy,¹⁶ a wind farm developer sued the town under Section 1983 of the Civil Rights Act seeking relief from a moratorium prohibiting construction of windmills. The federal district upheld the moratorium even though it had been extended to two years, stating:

The development of wind power projects, which convert wind energy into electricity, seems to be on the upswing in this country but that growth has not been universally welcomed. (See, e.g., Felicity Barringer, Debate Over Wind Power Creates Environmental Rift, N.Y. Times, June 6, 2006 at A18). As in Don Quixote, when one person sees a windmill, another sees a "monstrous giant" looming over the countryside.¹⁷

In In re Amended Petition of UPC Vermont Wind,¹⁸ involved one such project that met local opposition. There the Supreme Court of Vermont discussed a test developed by the public service board, a board that has statutory authority to approve the siting of wind power facilities.¹⁹ In determining whether a project would have an undue adverse aesthetic impact, the board employed the so-called quechee test. Under this test, an adverse aesthetic impact is considered undue if (1) it violates a clear, written community standard intended to preserve the aesthetic or scenic natural beauty of the area; (2) it offends the sensibilities of the average person; or (3) the applicant has failed to take generally available mitigating steps that a reasonable person would take to improve the harmony of the proposed project with its surroundings.²⁰

The court of appeals in Rankin v. FPL Energy, LLC,²¹ discussed the aesthetic considerations raised as part of a nuisance claim.

B. Protecting Property Values

One hypothetical argument could be where the municipality contends that, by requiring certain architectural standards to be met, the municipality is preserving property values by protecting surrounding property from designs of an inferior nature, which would diminish surrounding property values. The courts of some jurisdictions are notably hostile to this idea.²²

An actual illustration of connecting aesthetics to property values is Village of Hudson v. Albrecht, Inc.²³ from the Supreme Court of Ohio. In upholding an ordinance creating an architectural review board, the Supreme Court of Ohio noted "that there is a legitimate governmental interest in maintaining the aesthetics of the community and that, as such, aesthetic considerations may be taken into account by the legislative body in enacting zoning legislation."²⁴ The court also found that the ordinance "reflects a concern for the monetary interests of protecting real estate from impairment and destruction of value."²⁵

Zoning regulations related to aesthetics have also been connected to the tourism industry and the economic value that tourism brings to a community. Though indirectly related to property values, tourism does bring money into the local economy and thus boosts the value of property that contains or could contain hotels, restaurants, and other businesses serving tourists. For example, in a case from Florida, the court cites aesthetic considerations and the link to tourism as reasons for upholding the zoning ordinance requiring fencing or screening of junkyards from public view.²⁶

An interesting law review article suggests that the preservation of property values should never support purely aesthetic reasons for zoning.²⁷ The writer seems to suggest that the...