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ZONING – SPECIFIC APPLICATIONS. Aesthetic and Signs & Some Art. Communication as Education. A Stroll Through the Town. Regulation and Beauty. Reasons For Aesthetic Regulation. Theories of Regulation Aesthetic Harms Environmental Benefit Economic Harms (property values)
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ZONING – SPECIFIC APPLICATIONS Aesthetic and Signs & Some Art
Reasons For Aesthetic Regulation • Theories of Regulation • Aesthetic Harms • Environmental Benefit • Economic Harms (property values) • Safety – impairment of driving • Historicity and Historic Preservation
Berman v Parker • Prior to Berman v Parker beauty and aesthetics was not considered a valid exercise of the police power in most states • Beauty, it was said, lies in the eyes of the beholder and is not an objective standard equal to health, safety and welfare • The one exception to this rule is that historic preservation and design had long been accorded some weight in land use decisions
Background to Berman • The District of Columbia Redevelopment Act allows the National Capital Planning Commission to prepare plans and designate land for redevelopment • The first redevelopment took place in Southwest Washington D.C. in Area B • 65% of the dwellings were beyond repair • 57% had no inside toilets • 82% had no wash basins • 17% of the units were in satisfactory condition • P.S. – 97% of the residents were African-American
Berman’s Argument • Berman owned a department store building in the redevelopment area • It is commercial – not residential • The building is in satisfactory shape and since it is not a “slum” it cannot be taken • To take property for the clearance of slums is one thing – but to take property just to build and more balanced, more attractive community is unconstitutional
Supreme Court • Public safety, public health, quiet, land and order – these are some of the conspicuous examples of the traditional application of the police power by government • Yet, these examples merely illustrates the range of the power police and do not delimit it • The concept of the public welfare is broad and inclusive
Decision • It was important to redevelop the entire area – not to just to pick slum buildings • It was important to redesign the whole area so as to eliminate the conditions that cause slums – the over-crowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the lack of light and air • 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.
Background • Peggy Richardson was cited on March 22, 1992, for violating a City of Nichols Hills (City) ordinance by parking her pickup in the driveway of her Nichols Hills home between the hours of 2:00 and 5:00 a.m • She was fined $100.00 and the judge suspended the fine • She asked for a variance from this ordinance on the basis the the pickup was her only vehicle but was denied • She challenged the ordinance in district court and the judge found the ordinance unconstitutional on its face as arbitrary, capricious, and unreasonable
Facts Her profession and livelihood as a horse trainer necessitate her ownership and use of a pickup and her economic circumstances are such that she cannot afford to purchase a separate 'town car' to park in her driveway, just so she can comply with the ordinance. Her pickup is used for both personal and business purposes; it is not tagged as a commercial vehicle and displays no commercial vehicle markings or signs.
The Ordinance It shall be unlawful to park any commercial vehicle, recreational vehicle, trailer, taxi-cab or mobile home or any vehicle of any kind except a private passenger vehicle on private property located within the U-1 use district, between the hours of 2:00 a.m. and 5:00 a.m., unless such vehicle is parked on a permanently hard surfaced area or driveway completely to the rear of the front wall of the main building located on the property, and unless such vehicle shall be screened from view from the main and any side street upon which the property abuts.
Appeals Court • The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of its use is not unlimited and such restriction cannot be imposed if it does not bear a substantial relationship to the public health, safety, morals or general welfare. • Any vehicle that meets the definition of a "private passenger vehicle" - no matter how ugly, rusted or offensive, may be parked in this municipality between the hours of 2:00 a.m. and 5:00 a.m. • However, not a single pickup - no matter how new, expensive, or "pleasing to the eye", may be parked in any driveway during these hours
Decision • During the hours from 2:00 a.m. to 5:00 a.m., persons that could be offended by the sight of a pickup, cannot see a pickup, or any other vehicle for that matter, as it is normally dark during these hours • However, these same people can see an operational rusted-out jalopy, classified as a "private passenger vehicle", parked in any driveway during the daylight hours. • We cannot distinguish how one vehicle could negatively affect property values and the other could not
The Outcome • However, we find this ordinance, does not promote aesthetics as alleged This is OK This is not OK
Stoyanoff v Berkeley A suburban or Colonial, French Provincial or English Tudor Homes - Architectural Review Board – Ugly House? Hint – This is not English Tudor
The Background • Ladue establishes an architectural review board for all structures • Buildings must “conform to certain minimum architectural standards of appearance and conformity with surrounding structures, and that unsightly, grotesque and unsuitable structures, detrimental to the stability of value and the welfare of surrounding property, structures and residents, and to the general welfare and happiness of the community, be avoided, and that appropriate standards of beauty and conformity be fostered and encouraged."
Situation • Plaintiffs purchase a lot in a neighborhood filled with Tutor and French Provincial design homes • They seek to have an ultra modern house approved
Findings • The intrusion into this neighborhood of this unusual, grotesque and nonconforming structure would have a substantial adverse effect on market values of other homes in the immediate area.
Opposition Fires Back • There exists no provision providing for an architectural board and no entity even remotely resembling such a board is mentioned under the enabling legislation in Missouri • Can’t deny a building permit just because it looks different
Court Notes • This residential suburb is composed primarily of high end Cottage, Tutor, Provincial, and traditional housing • The stabilizing of property values, and giving some assurance to the public that, if property is purchased in a residential district, its value as such will be preserved, is probably the most cogent reason back of this zoning ordinance
Finding • The aesthetic factor to be taken into account by the Architectural Board is not to be considered alone. • Along with that inherent factor is the effect that the proposed residence would have upon the property values in the area • In this time of burgeoning urban areas, congested with people and structures, it is certainly in keeping with the ultimate ideal of general welfare that the Architectural Board, in its function, preserve and protect existing areas in which structures of a general conformity of architecture have been erected.
Conclusion • Architectural review does not vest standard less powers in a review board • General standards are sufficient for determining whether the proposed building would or would not promote the "health, safety, morals or general welfare of the community" or would or would not adversely affect "the character of the neighborhood, traffic conditions, public utility facilities and other matters pertaining to the general welfare
The – “What? No Trailers Case!” Livingston Township v Marchev, N.J. 1964
The Local Scene • The Marchevs reside in a single family home in Livingston N.J • They purchase a camping/travel trailer. It is about 7’ long and 6’ wide When they were not using their trailer, they park it near their house • The local ordinance - It shall be unlawful for any person to park any trailer or camp car on any street in the Township of Livingston or on any premises within the limits of the Township except for the purpose of repair or storage. Any such trailer or camp car undergoing repairs or being stored shall be kept within a building and shall not during such period of repairs or storage be used by person as a dwelling or sleeping place."
Claim and Counter Claim • The Marchevs maintain that the parking of a camp trailer adjacent to their home involved a permissible right incident to a family hobby or recreational activity and therefore it was a valid accessory use. • The maintenance of a family home includes uses for private, educational, cultural and recreational activities. Also, that the pursuit of a hobby is customarily a part of recreational activity.
Court Concludes • The ordinance under review is aimed at preventing unsightly appearances and diminution of property values which attend the outdoor parking or open-air storage of trailers in a residential area of the community • The reasonableness of the prohibitory enactment is evidenced by the provision which permits the storing of trailers "within a building." Defendants were not deprived of a right to own a trailer or to store it on their premises; they were only restricted from indulging in a use that would impinge upon the rights of other property owners • The ordinance is constitutional
Basics • The Figariski are owners of a house and lot located within the Norwich historic district • One hundred buildings and lots surrounding, or in close proximity to, the green.
Location • Figarsky owns a two-story building zoned for commercial uses and is located just inside the bounds of the district. • The property faces the green but is bounded on two sides by a Mickey Dees’ hamburger stand and parking lot. The Rose of New England
Mickey Ds London
Controversy • The building is in need of some repairs, which the Norwich building inspector has ordered the plaintiffs to undertake. • Rather than make the repairs, however, the plaintiffs would prefer to demolish the building.
The Hearing • The defendant held a public hearing on the application on January 25, 1973. The hearing was attended by more than 100 persons, none of whom, except for the plaintiffs and their attorney, spoke in favor of granting the application. • On the following day, the commission voted unanimously to deny the plaintiffs' application.
Round Two • Figarsky files in district court • They maintain that the costs of the repairs necessary for the building are prohibitive. The building inspector has ordered the plaintiffs to repair the foundation and replace a door sill and hall floor, and the health department has ordered the plaintiffs to tie in to a newly accessible public sewer. • The Figarskys offered the testimony of a local contractor to the effect that the cost of these repairs, together with the cost of reroofing the building, would amount to between $ 15,000 and $ 18,000. They lose the case.
