Zoning for Aesthetics
by Christopher J. Duerksen, Esq.

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    Attorney Christopher Duerksen examines zoning for aesthetics, and offers some guidance for communities thinking of drafting aesthetic-based regulations.
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    Today, more than ever, community leaders and citizens are searching for ways to make their cities and towns more distinctive and more livable. Improving the quality of life in the community can, in turn, help attract economic development. Firms increasingly put a high value on livability in making locational decisions. Not surprisingly, this quest for distinctiveness and livability is often played out before planning and zoning commissions in the form of aesthetic-based regulations -- historic preservation ordinances, design review standards, view protection regulations, sign controls, and tree protection measures. ...

    The Legal Basis of Aesthetic Regulation

    "You can't zone for aesthetics. It is not within the purview of the police power." That is a familiar refrain heard often by planning commissions as they consider adopting aesthetic-based zoning regulations. While that statement might have been true in a good many jurisdictions thirty years ago, today almost all local governments have the authority to adopt strong sign controls, design standards, and others similar ordinances.

    Aesthetic regulations are hardly new or a passing fad. As early as 1888, a New York court approved an 80-foot height limitation on residential structures along parkways. In 1904, the City of Baltimore adopted a 70-foot maximum height regulations to maintain the character of its neighborhoods and commercial areas. The same year, Boston -- which had grown sensitive to the need for preservation when, in the late 1800s, many historic buildings were destroyed -- enacted similar legislation. ...

    Administrative Issues

    As aesthetic regulation becomes more commonplace, local governments and plan commissions need to take all possible steps to anticipate criticism that such controls are inherently subjective and that review procedures are burdensome. Experience from communities across the United States suggests that the following steps can make the difference between a successful effort and one that runs into political and legal problems:

    [article continues with discussion of the following:
    1. Careful identification of what is worth protecting.
    2. Careful tailoring to fit local circumstances.
    3. Explicit, detailed review standards.
    4. A well-qualified review board supported by adequate staff resources.
    5. Visual aids and illustrated guidebooks. ...