The concept of design review—governmental control over the aesthetics of the built environment— is a direct result of changing social opinions about cities and built environments, often as a reactionary push against large-scale urban renewal projects and modernist architecture. not those of his neighbors. Aesthetic considerations are a matter of luxury and indulgence rather than of necessity, and it is necessity alone which justifies the exercise of the police power to take private property without just compensation” (72 N.J.L. 285 1905, 287).
The court cites similar cases with similar holdings from around the country, as if to emphasize further the point that the courts at this time were strongly on the side of landowners. Even the slightest loss of possible economic value to a landowner was considered an unjust taking unless it could be justified as necessary for maintaining the public safety, and clearly any aesthetic considerations were legally baseless as the foundation for land regulation. Zoning Arrives: Euclid v. Ambler Twenty years after Passaic, the landscape of land use regulations changed dramatically and forever with the U.S. Supreme Court’s approval of the practice of zoning. In Euclid v. Ambler Realty Co., the court recognized and sanctioned the practice of separating and limiting particular land uses to particular areas within a municipality (272 U.S. 365 1926). The court reasoned that cities such as Euclid had “powers of its own and authority to govern itself as it sees fit,” and that these powers included the right to control which land uses it permitted to develop, and where (272 U.S. 365 1926, 389). The court was strongly deferential to the expressed will of the legislative body, saying that so long as the validity of the zoning classifications was “fairly debatable” and that the reasoning behind any zoning restrictions was “sufficiently cogent to preclude [a court] from saying… that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare,” then the resulting zoning was a constitutionally valid use of the municipality’s police power (272 U.S. 365 1926). While the Euclid decision did not take up the issue of aesthetics directly, in its
discussion the court wrote: “There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire or collapse, the evils of overcrowding, and the like…” (272 U.S. 365 1926, 388).
to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands it the way” (348 U.S. 26 1954, 103-103).
Douglas’ language is qualitative, expansive, and forceful, which perhaps accounts for why it has served as a particularly influential dictum in lending credibility to aesthetic regulations. It is worth noting, Lai remarks, that this decision is “tinged with irony,” since the case validated an urban renewal program that “…has since been largely discredited for its promotion of a This seems to show a court that is not offended by design regulations, as height and ma- rationalized, end-state urban design ideal with terials requirements are design elements; however, insufficient regard for the existing community” (Lai 1988, 242). Put another way, even while the reasoning for allowing such restrictions is Douglas was expanding the public welfare to narrowly tailored to just those cases when necesinclude “beautiful as well as healthy” communisary to insure the public safety, which reaffirms ties, the Berman decision provided legal support for the sentiment of the court in the Passaic case. On the development of many projects responsible for the issue of aesthetic regulation, the court would what are now considered among the most ugly remain silent for thirty additional years. and scarring buildings to stand in American cities. The Public Welfare Expanded: Berman v. Parker It is exactly these urban renewal projects that Punter had in mind when he traced the beginIn the mid-1950s, the court took up the case nings of design review to “….dissatisfactions of Berman v. Parker, which presented the issue of with modernist architecture and planning…” and whether an ordinance allowing for the taking of thus the Berman decision inadvertently fueled the land for large-scale redevelopment of “blighted movement toward design standards in two ways: territory” within the District of Columbia was a legal one and a public one, where citizens began justifiable under the takings clause of the Fifth to clamor for ways to regulate and control the Amendment (348 U.S. 26 1954). The ordinance problems of urban renewal and other “placeless” was upheld, and the decades-long, country-wide building projects. program of urban renewal won its critical legal justification. Yet Justice Douglas, writing for a Aesthetics as a Contributing Factor: unanimous court, inserted a passage of dictum The Economic Rationale that was later used to justify regulation on the After the Berman decision, some state courts basis of aesthetic considerations alone. Douglas developed an intermediate view that aesthetic somewhat poetically wrote: considerations, while worthy of being considered along with other rationales supporting a land “We do not sit to determine whether a use regulation, were not sufficient in themselves particular housing project is or is not desirable. to justify land use controls. This opinion is well The concept of the public welfare is broad and elucidated in the case of City of Houston v. Johnny inclusive. The values it represents are spiritual Frank’s Auto Parts Co (480 S.W.2d 774 1972). In as well as physical, aesthetic as well as monthis case, Houston passed an ordinance that etary. It is within the power of the legislature
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