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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)
Safety – impairment of driving
Historicity and Historic Preservation
Aesthetic Harms?
Freedom to Choose, Or
Bound to Lose?
Economic Harms?
And the Art Argument
Berman v Parker
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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
The Washington D.C.
Slums
Background to Berman
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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
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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
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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
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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, wellbalanced as well as carefully patrolled.
Today’s Picks
City Nichols Hill v Peggy
Richardson
Background
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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
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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
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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 not OK
This is 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
This Really Is English
Tudor
A Matter of Taste?
Even Rednecks Have
Taste
Or Just Plain Butt Ugly?
The Background
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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."
Unusual Appearance?
Situation
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Plaintiffs purchase a lot in
a neighborhood filled
with Tutor and French
Provincial design homes
They seek to have an
ultra modern house
approved
Actually, This Is A Similar
Model Of the Home
Inside, Rear View
Findings
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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
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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
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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
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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
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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
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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."
The Trailer In Question
Claim and Counter Claim
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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
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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
Figarsky v Historic District
Commission - 1976
Basics
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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
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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
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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
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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
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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.
On Appeal
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In their appeal, the plaintiffs allege that they will be
forced to undergo economic hardship and loss as a
result of not being permitted to demolish their building,
and that the historic district commission, in denying their
application for a certificate of appropriateness, acted
illegally, arbitrarily and in abuse of its discretion.
The Key Question
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Although the Figarskys recognize the right and
the power of the Historic Commission to
regulate the building of new structures, or
renovate existing buildings, they do not have
the power to prevent the lawful removal of an
existing building in the district.
This is "vague aesthetic legislation," incapable
of application in accordance with mandates
of due process
Three Strikes – You’re
Out
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The plaintiffs went no further than to present
evidence that their house was unoccupied
and in need of extensive repairs. There was no
evidence offered that the house, if repaired,
would not be of some value, or that the
proximity of the McDonald's hamburger stand
rendered the property of practically no value
as a part of the historic district.
What Can Be Done In A
Case Like This
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Obtain certificate of necessity to show why the
building is of only marginal historic value
Demonstrate that the building is in a state of
structural decay that would prohibit a
profitable use if rehabilitated
Yadda yadda yadda
But, Take Note – Some Historic
Icons Are Highly Controversial
Metromedia v San Diego
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A San Diego ordinance permits onsite commercial
advertising (a sign advertising goods or services
available on the property where the sign is located), but
forbids other commercial advertising and
noncommercial advertising using fixed-structure signs,
Unless permitted by 1 of the ordinance's 12 specified
exceptions, such as
– temporary political campaign signs
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Appellants, companies that were engaged in the
outdoor advertising business in the city when the
ordinance was passed, brought suit in state court to
enjoin enforcement of the ordinance.
Through the Courts
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Trail court holds the ordinance invalid as over inclusive
Appeal Court affirms
CA Supreme Course Reverses
U.S. Supreme Court Takes the Case
1st Line of Reasoning
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Insofar as it regulates commercial speech, the ordinance
meets the constitutional requirements of Central Hudson
Improving traffic safety and the appearance of the city
are substantial governmental goals.
The ordinance directly serves these goals and is no
broader than necessary to accomplish such ends
However
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However, the city's general ban on signs carrying noncommercial advertising is invalid under the First and
Fourteenth Amendments.
– The fact that the city may value commercial messages
relating to onsite goods and services more than it values
commercial communications relating to offsite goods and
services does not justify prohibiting an occupant from
displaying his own ideas or those of others.
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Furthermore, because under the ordinance's specified
exceptions some noncommercial messages may be
conveyed on billboards throughout the commercial and
industrial zones, the city must allow billboards conveying
other noncommercial messages throughout those zones.
The ordinance cannot be characterized as a reasonable
"time, place, and manner" restriction.
So – Its Invalid
You cannot regulate the type of communication that you feel is more correct
that others. Is the message of a church or a charity more important than the
communication of others?
Long Hill Twsp. V Calabria
Controversy – Lights?
In
1997 Calabrai & Gillette Liquors
& Diane’s Country Kitchen were
charged with a violation of the sign
control section of the Township's
zoning ordinance.
The
ordinance required that all
illuminated signs have an external
light source. Direct lighting of signs
is prohibited
Who Had What?
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Calabria II had two green neon "open" signs in script
illuminated during business hours.
Diane's Country Kitchen had two neon "open" signs and
three white neon signs stating "deli“ "catering" and
"subs.“
Gillette Liquors had six neon signs advertising different
beers and one neon "open" sign.
Example
Reasoning
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Specifically, the issues are whether the
restrictions
– are justified without reference to content;
– whether the restrictions serve a significant
government interest;
– And whether the restrictions leave open ample
alternative channels for communication of the
information.
The court found no intent or effect of the
ordinance to regulate content and found
that it was a legitimate
Remaining Issues
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Does the regulation serve a significant governmental
interest?
– Courts have acknowledged that advancement of a town's
aesthetic interests is a valid justification for regulation of
commercial activity
– A town can act to regulate lighting, or to restrict size and
number of signs or structures
– Such aesthetic judgments are necessarily subjective and
must be carefully scrutinized to determine if they are only a
public rationalization of an impermissible purpose
– If there is no ulterior motive for the suppression of a certain
form of speech, the court cannot reject a legislative
judgment.
Well Does It?
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The record is devoid of evidence, facts or analysis why
the mere existence of neon is offensive to the town’s
goal of beautification
There is no evidence that there are unusual problems in
the use of neon that cannot otherwise be regulated as
other forms of lighting, specifically,
– As to degree of illumination;
– Amount of light used within a given space or size of
structure;
– Direction of the light;
– Times when the light may be used;
– Or number of lights used on the interior of the store.
Conclusion
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The Township failed to show that a municipalwide ban on neon "serves a significant
government interest."
The record is devoid of evidence that
establishes that neon in and of itself - without
other less restrictive methods to regulate its use,
such as through size, degree of illumination or
brightness, or number - improperly contributes
to the unwanted "highway“ commercial look.
Georgia Manufactures
Assoc. v Spalding - 1997
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Spalding County, Georgia (County), amended its Zoning
Ordinance to require that manufactured homes be built
with a 4:12 roof pitch to qualify for placement in most
residential districts
The district court struck down the 4:12 requirement,
holding that the 4:12 requirement violates equal
protection, substantive due process, and the dormant
Commerce Clause and that the 4:12 requirement is
preempted by federal law.
Result
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District judge held a bench trial to determine
damages
The district court awarded $28,580 in damages
pursuant to 42 U.S.C. § 1983, and awarded
$236,715.60 in attorneys' fees and $17,878.99 in
expenses pursuant to 42 U.S.C. § 1988
After the district court issued its order, the
County filed this appeal
Appeals Court
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Applies the rational basis test to the requirement
– Determine if there is a legitimate government
purpose-a goal-which the enacting government
body could have been pursuing. The actual
motivations of the enacting governmental body are
entirely irrelevant....
– The next inquiry is concerned with the existence of a
conceivably rational basis, not whether that basis
was actually considered by the legislative body. As
long as reasons for the legislative classification may
have been considered to be true, and the
relationship between the classification and the goal is
not so attenuated as to render the distinction
arbitrary or irrational, the legislation survives rationalbasis scrutiny
And. …

County could have been pursuing the goal of "aesthetic
compatibility," seeking to reduce friction between the
appearance of site-built homes and manufactured
homes by requiring manufactured homes to conform
with standard characteristics of site-built homes, such as
roof pitch and foundation
But – HUD Pre-Emption
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Is this not preempted by the National
Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C. §§ 54015426(Act), because the 4:12 requirement
"interferes with the Act's construction and
safety requirements and cannot be enforced
without impairing the Federal government's
superintendence of the manufactured home
industry
No – It Is Not
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The language of the statute clearly precludes states and
municipalities from imposing construction and safety
standards upon mobile homes that differ in any respect
from those developed by HUD.
A roof pitch is not a construction or safety standard – it is
an aesthetic consideration
Benefit of Signs and
Advertising Devices
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Information and Public Communication
Benefits
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Diversity and Enjoyment
Economic Activity
Public Service
Benefits
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First Amendment Freedoms
Union City v Justice
Outdoor Displays
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Justice Outdoor Displays rents numerous tracts of land
and erects billboards
Two of the billboards exceed the allowed 70’ height by
14’
Justice applies for a variance but is denied
Justice brings suit against the city appealing the denial
of the variance and alleging that certain parts of the
sign control ordinance are unconstitutional
First Court Trial
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The trial court upholds the city’s denial of the
variance but rules that certain parts of the
ordinance are unconstitutional
– The ordinances favors some signs based on the
content of their messages
– The ordinance limits the use of political signs to
certain zoning districts for a limited period of time
– The ordinance discriminates in favor of signs for
schools, libraries, and other quasi-governmental
agencies
Message of the Sign
Appeals Court Review

This is the major concern with the ordinance:
– All signs are classified as either on-site, off-site, or
temporary
– If the sign is on-site, it must contain a commercial
message – non-commercial messages are not
allowed
– In other words, the ordinance limits on-premise signs
to messages advertising a product, person, service,
place, activity, event, or idea directly connected
with the property, it effectively bans signs bearing
noncommercial messages in zoning districts where a
sign of the same size and structure may display
commercial advertisements.
Examples
This is an Off-Site Sign
This is an On-Site sign
Examples
This on-site sign complies
with the ordinance
This sign does has no
commercial message
and does not comply
Can’t Have These Either
Now Residential Signs

That portion of the ordinance that restricts
residential signs to
– Temporary political signs
– For sale signs
– Special events signs

Is not constitutional because there is no way for
people to express opinions and people are left
with no meaningful alternative avenue of
expression
Expression Is The Heart
Of The 1st Amendment
But What About Justice
Outdoor?
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The prohibition against off-site billboards
greater than 70 feet in height is a time, manner,
place restriction
These types of restrictions do not discriminate
based upon the content of the message and
thus are reasonable unless the complaining
party can show, by a preponderance of
evidence, that they are arbitrary and
capricious
Globe Newspapers v
Beacon Hill Arch. Dist.
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
Beacon Hill guidelines regulate exterior architectural
features such as masonry, roofs, windows, sash and
shutters, doors, trim, paint, and ironwork. One of the
guidelines states that “freestanding signs are not
permitted." In the District, the Newspapers distribute their
publications via home delivery, mail, store sales, street
vendors, and "newsracks.“
Beacon Hill Architectural Commission enacted a
regulation, the Street Furniture Guideline, which
effectively bans newspaper distribution boxes from the
public streets of the Historic Beacon Hill District in Boston
Globe Newspapers v
Beacon Hill Arch. Dist.

Beacon Hill is a 19th-century downtown Boston
residential neighborhood situated directly north of the
Boston Common and the Boston Public Garden. Most
people think of city living as anonymous and isolating.
But this cozy enclave, filled with nearly 10,000 people, is
more like a village than an anonymous city.
It Is a Historic Gem
Centered Around the Boston
Common
This Is The Pike’s Place Fish
Market And The Public
Gardens
And These Are The
Newsracks
District Court Ruling
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After the bench ruling in the trial case, but before
judgment had entered, the Commission adopted a new
guideline -- the present Street Furniture Guideline -- that
bans all "street furniture," not just newsracks, from the
District
Several publishers content that the ban is a form of
censorship – because publications that rely on
newsracks are at a disadvantage
Court rules against the regulations
Claims

The publishers argue that there is disparate
treatment because governmental street
furniture is exempt and so are all the features of
the storefronts
Conclusion

As we see it, the Newspapers' complaint boils
down to the potential reader passing through
the District or the non-subscribing resident and,
as we discuss later, ample alternative channels
exist for the Newspapers to reach even these
accidental transients passing through the
District as well as those readers with more
frequent ties to the District
Review of Points
Regulation must be content neutral
Aesthetics – A Significant Governmental Interest
Narrowly Tailored – Limits Speech No More Than Necessary
Does it Leave Ample Alternative Channels