Municipal Law Alert, October 2009
The question of whether and how to regulate aesthetics has vexed local officials for years. The difficulty seems to flow from the inevitable clash between an individual’s rights with respect to their property and the rights of those who are affected by that individual’s choices – one person’s trash is another person’s treasure. However, recently, governments seem to be somewhat more inclined to delve into this area of regulation. The general area of “aesthetic regulation” is broad and somewhat difficult to define. However, this article discusses one type of ordinance that falls under the broad category of aesthetic ordinances – architectural and design ordinances.
Some municipalities desire to enact ordinances that force property owners to comply with the architectural and design standards set forth in the ordinance. These ordinances are generally enacted in order to attempt to preserve property values of surrounding properties and/or the integrity or character of a neighborhood. There was a time not too long ago when such ordinances ran into strong resistance from the courts. One court stated the following:
Aesthetic considerations are a matter of luxury and indulgence rather than necessity, and it is necessity alone which justifies the exercise of the police power to take private property without compensation. The cut of the dress, the color of the garment worn, the style of the hat, the architecture of the building or its color may be distasteful to the refined senses of some; yet government can neither control nor regulate in such affairs.
Curran Bill Posting & Distributing Co. v. City of Denver, 107 P. 261 (Co. 1910). However, in recent years, courts appear to be much more willing to accept such regulations. For example, in 1984, the United States Supreme Court stated the following:
It is well settled that the state may legitimately exercise its police powers to advance aesthetic values. Thus, in Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98, 102-103, 99 L.Ed. 27 (1954), in referring to the power of the legislature to remove blighted housing, this Court observed that such housing may be “an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn.” Ibid. We concluded: “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.”