ZONING

1
ZONING SPECIFIC APPLICATIONS

• Aesthetic and Signs Some Art

2
Communication as Education
3
A Stroll Through the Town
4
Regulation and Beauty
5
Reasons For Aesthetic Regulation

• Theories of Regulation
• Aesthetic Harms
• Environmental Benefit
• Economic Harms (property values)
• Safety impairment of driving
• Historicity and Historic Preservation

6
Aesthetic Harms?
7
Freedom to Choose, Or Bound to Lose?
8
Economic Harms?
9
And the Art Argument
10
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

11
The Washington D.C. Slums
12
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

13
Bermans 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

14
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

15
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.

16
Todays Picks
17
City Nichols Hill v Peggy Richardson
18
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
  200 and 500 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

19
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.

20
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 200 a.m. and 500 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.

21
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 200 a.m. and
  500 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

22
Decision

• During the hours from 200 a.m. to 500 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

23
The Outcome

• However, we find this ordinance, does not promote
  aesthetics as alleged

This is OK
This is not OK
24
Stoyanoff v Berkeley
A suburban or Colonial, French Provincial or
English Tudor Homes - Architectural Review Board
Ugly House?
Hint This is not English Tudor
25
This Really Is English Tudor
26
A Matter of Taste?
27
Even Rednecks Have Taste
28
Or Just Plain Butt Ugly?
29
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."

30
Unusual Appearance?
31
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

32
Actually, This Is A Similar Model Of the Home
33
Inside, Rear View
34
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.

35
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
• Cant deny a building permit just because it
  looks different

36
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

37
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.

38
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

39
The What? No Trailers Case!

• Livingston Township v Marchev, N.J. 1964

40
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."

41
The Trailer In Question
42
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.

43
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

44
Figarsky v Historic District Commission - 1976
45
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.

46
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
47
Mickey Ds
London
48
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.

49
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.

50
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.

51
On Appeal

• 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.

52
The Key Question

• 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

53
Three Strikes Youre Out

• 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.

54
What Can Be Done In A Case Like This

• 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

55
But, Take Note Some Historic Icons Are Highly
Controversial
56
Metromedia v San Diego

• 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
• 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.

57
Through the Courts

• Trail court holds the ordinance invalid as over
  inclusive
• Appeal Court affirms
• CA Supreme Course Reverses
• U.S. Supreme Court Takes the Case

58
1st Line of Reasoning

• 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

59
However

• However, the city's general ban on signs carrying
  non-commercial 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.
• 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.

60
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?
61
Long Hill Twsp. V Calabria
62
Controversy Lights?

• In 1997 Calabrai Gillette Liquors Dianes
  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

63
Who Had What?

• 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.

64
Example
65
Reasoning

• 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
66
Remaining Issues

• 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.

67
Well Does It?

• The record is devoid of evidence, facts or
  analysis why the mere existence of neon is
  offensive to the towns 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.

68
Conclusion

• The Township failed to show that a municipal-wide
  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.

69
Georgia Manufactures Assoc. v Spalding - 1997

• Spalding County, Georgia (County), amended its
  Zoning Ordinance to require that manufactured
  homes be built with a 412 roof pitch to qualify
  for placement in most residential districts
• The district court struck down the 412
  requirement, holding that the 412 requirement
  violates equal protection, substantive due
  process, and the dormant Commerce Clause and that
  the 412 requirement is preempted by federal law.

70
Result

• 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

71
Appeals Court

• 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
  rational-basis scrutiny

72
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

73
But HUD Pre-Emption

• Is this not preempted by the National
  Manufactured Housing Construction and Safety
  Standards Act of 1974, 42 U.S.C.
  5401-5426(Act), because the 412 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

74
No It Is Not

• 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

75
Benefit of Signs and Advertising Devices

• Information and Public Communication

76
Benefits

• Diversity and Enjoyment
• Economic Activity
• Public Service

77
Benefits

• First Amendment Freedoms

78
Union City v Justice Outdoor Displays

• 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

79
First Court Trial

• The trial court upholds the citys 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

80
Message of the Sign
81
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.

82
Examples
This is an Off-Site Sign
This is an On-Site sign
83
Examples
This sign does has no commercial message and does
not comply
This on-site sign complies with the ordinance
84
Cant Have These Either
85
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

86
Expression Is The Heart
87
Of The 1st Amendment
88
But What About Justice Outdoor?

• 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

89
Globe Newspapers v Beacon Hill Arch. Dist.

• 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

90
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.

91
It Is a Historic Gem Centered Around the Boston
Common
92
This Is The Pikes Place Fish Market And The
Public Gardens
93
And These Are The Newsracks
94
District Court Ruling

• 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

95
Claims

• The publishers argue that there is disparate
  treatment because governmental street furniture
  is exempt and so are all the features of the
  storefronts

96
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

97
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
98
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