Beyond the eye of the beholder once again: A new review of aesthetic regulation

Urban Lawyer

Volumn 38, Issue 4, 2006, Pages 1119-1185

  Pearlman, Kenneth ^a   Linville, Elizabeth ^b   Phillips, Andrea ^b   Prosser, Erin ^b  

^a Och Spine at New York Presbyterian Hospitals   (United States)

^b OHIO STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ESTHETICS; LAW ENFORCEMENT; STRATEGIC APPROACH; ZONING POLICY;

EID: 33847212493     PISSN: 00420905     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (475)

1. Then a meber of the law faculty at the Ohio State University; now a U.S. Bankruptcy judge in the U.S. Bankruptcy Court for the Central District of California.
2. Samuel Bufford, Beyond the Eye of the Beholder: A New Majortty of Jurisdictions Authorize Aesthetic Regulation, 48 UMKC L. Rev. 125 (1980).
3. Id. at 130-31.
4. Id. at 13144.
5. Id. at 145-50.
6. Id. at 151-62.
7. Recent citations in law journals include Robert D. Dodson, Rethinking Private Nuisance Law: Recognizing Aesthetic Nuisances in the New Millennium, 10 S.C. Envtl. L.J. 1, 9 n.62, 17 n.106 (2002) (questioning the idea that aesthetic values are subjective)
8. Robert H. Cutting, "One Man's Ceilin' is Another Man's Floor": Rights as the Double-Edged Sword, 31 Envtl. L. 819, 861 n.270 (2001) (discussing "aesthetic zoning")
9. Kenneth G. Silliman, Risk Management for Land Use Regulations: A Proposed Model, 49 Clev. St. L. Rev. 591, 619 n.132 (2001) (discussing aesthetics and economics as independent bases for regulation)
10. Jeffrey W. Strouse, Redefining Trademark Alteration Within the Context of Aesthetic-Based Zoning Laws: A Blockbuster Dilemma, 53 Vand. L. Rev. 717, 726 n.57 (2000) (discussing the three doctrines framing substantive due process analysis in assessing the validity of zoning laws);
11. Gregory A. Ashe, Reflecting the Best of Our Aspirations: Protecting Modern and Post-Modern Architecture, 15 Cardoza ARTS & ENT. L.J. 69, 76 nn.54-56 (1997) (discussing how state courts view aesthetics' place in regulation);
12. David A. Dana, Land Use Regulation in an Age of Heightened Scrutiny, 75 N.C.L. Rev. 1243, 1283 n.148 (1997) (discussing a community's right to prohibit an overly tall building based on scale or aesthetic grounds);
13. Stephanie L. Bunting, Unsightly Politics: Aesthetics, Sign Ordinances, and Homeowners' Speech in City of Ladue v. Gilleo, 20 Harv. Envtl. L. Rev. 473, 477 n.19, 480 n.37 (1996) (discussing aesthetic regulation as valid exercise of the police power);
14. Mark Bobrowski, Scenic Landscape Protection Under the Police Power, 22 B.C. Envtl. Aff. L. Rev. 697, 701 n.32 (1995) (discussing states that allow regulation solely for aesthetic purposes under the prong of general welfare).
15. 8 It should be noted that the authors disagree with Bufford's placements of Ohio and Michigan in this category, for reasons that will be explained in the discussion of each state.
16. Barber v. City of Anchorage, 776 P. 2d 1035 (Ala. 1989).
17. Id.
18. Id. at 1037.
19. 466 U.S. 789, 807 (1984). This case held that the City of Los Angeles had the right to remove signs on utility pole crosswires and that aesthetics alone can be a valid public purpose.
20. 925 P.2d 1015 (Ala. 1996).
21. Id. at 1022.
22. 647 S.W. 2d 439, 440 (Ark. 1983). In an earlier case involving the same ordinance, tine court was unwilling to allow regulation based solely on aesthetics with this ordinance.
23. In Fayetteville v. S&H, Inc., the court ruled that this aspect of the ordinance was unconstitutional in application and constituted a taking of property. 547 S.W.2d 94 (Ark. 1977).
24. 660 S.W.2d 900 (Ark. 1983). There have also been cases upholding aesthetics in combination with other factors.
25. See Bachman v, State, 359 S.W.2d 815 (Ark. 1962) (dicta)
26. Bd. of Adjustment v. Osage Oil & Transp., Inc., 539 S.W.2d 836, 837 (Ark. 1975);
27. Craft v. City of Fort Smith, 984 S.W.2d 22 (Ark. 1998). Arkansas is quite clear on the role of aesthetics in the regulation of highway signs. In 1967, the Arkansas legislature enacted statutes, Act 640 of 1967, amended by Act 999 of 1975, Ark. Stat. Ann. §§ 76-2501 (Supp. 1975), allowing regulation of highway signs by permit and enforcement for the purpose of efficient travel and the preservation of natural beauty (23 U.S.C. § 1311).
28. In Yarbrough v. Ark. State Highway Comm'n, the Supreme Court of Arkansas ruled that this legislation was constitutional and a valid use of police power. On the issue of aesthetics as part of the regulation, the court sited past decisions where the regulation of outdoor advertising was constitutional as it promoted "the convenience and enjoyment of public travel, protected public investment in the highways, attracted visitors to the state and conserved the natural beauty of areas adjacent to the highways." 539 S.W. 2d 419, 422 (Ark. 1976).
29. Varney & Green v. Williams, 100 P. 867 (Cal. 1909). The California Supreme Court decided that an East San Jose ordinance regulating billboards was invalid, Id.
30. The ordinance made it a criminal offense to maintain a billboard in the city. The court ruled that this was a "radical restriction on a property owner's right to use bis property" and that aesthetic considerations did not justify such a radical restriction, Id. at 868.
31. The decision did not prohibit exercising the police power for aesthetic purposes, but it was interpreted as such in a lower court decision, Id. see, e.g., Desert Outdoor Adver. v. County of San Bernadino, 255 Cal. App. 2d 765 (Cal. Ct. App. 1967).
32. 592 P.2d 728 (Cal. 1979), rev'd on other grounds, 453 U.S. 490 (1981).
33. Id. at 735.
34. Id. at 735.
35. Id. at 736.
36. Ehlrich v. City of Culver City, 911 P.2d 429 (Cal. 1996).
37. Id. at 450.
38. 13 P.3d 1122 (Cal. 2000).
39. Id. at 1149 (citing Penn Cent. Transp. Co. v. New York City, 98 S. Ct. 2646, 2661 (1978)).
40. Bufford, supra note 2, at 132.
41. Veterans of Foreign Wars v. City of Steamboat Springs, 575 P.2d 835 (Colo. 1978), appeal dismissed, 99 S. Ct. 66 (1978).
42. S. of Second Ass'ns v. Town of Georgetown, 580 P.2d 807 (Colo. 1978).
43. Bufford, supra note 2, at 132.
44. Bufford, supra note 2, at 132. The ordinance was ruled unconstitutional on other grounds (vagueness in delineating areas to be protected).
45. Landmark Land Co., Inc. v. City of Denver, 728 P.2d 1281 (Colo. 1986).
46. 728 P. 2d at 1285. The Colorado courts have also upheld several cases involving aesthetics combined with other factors.
47. See, e.g., City of Lakewood v. Colfax Unltd. Ass'n, Inc., 634 P.2d. 52 (Colo. 1981);
48. U.S.W. Commc'ns, Inc. v. City of Longwood, 924 P.2d 1071 (Colo. Ct. App. 1995);
49. Friends of Black Forest Park v. Bd. of County Comm'rs El Paso. 80 P.3d 871 (Colo. Ct. App. 2003);
50. City of Greenwood Vill. v. Petitioners for the Proposed City of Centennial, 3 P.3d 427 (Colo. 2000) (aesthetics as a basis for standing).
51. Builders, Inc. v. Sartin, 207 A.2d 12 (Del. Super. Ct. 1964).
52. Bufford, supra note 2, at 133.
53. Buckson v. Town of Camden, No. 1438-K, 2002 Del. Ch. LEXIS 126 (Kent Oct. 31, 2002) (citing Rogin v. Bensalem Township, 616 F.2d 680, 688 (3d Cir. 1980) (referring to Berman v. Parker));
54. Lawson v. Sussex Cty., No. 1615-S, 1995 Del. Ch. LEXIS 81 (Sussex June 14, 1995).
55. Harvey v. Zoning Bd. of Adjustment of Odessa, No. 00A-04-007 CG, 2000 Super. Ct. Del. LEXIS 432 (New Castle Nov. 27, 2000), aff'd without opinion on the basis of the Superior Court decision, 781 A.2d 697 (Del. 2001).
56. Id.
57. Dover Historical Soc'y v. Dover Planning Comm'n, 838 A.2d 1103 (Del. 2003).
58. Bufford, supra note 2, at 133.
59. Other U.S. Supreme Court cases are discussed in detail under "Federal," infra, at section Y. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978);
60. Metromedia, Inc. v. City of San Diego, 453 US 490 (1981);
61. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984).
62. In an unusual case, the court has even ruled that the Secret Service is authorized to use its power for aesthetic purposes. In the 1982 case, Smith v. United States, the court ruled that the Secret Service was justified in arresting protesters on the White House lawn who were not trespassing or using violence, stating: "It is the policy of the Secret Service to prohibit any form of demonstration within the interior grounds of the White House, regardless of the nature of the message sought to be conveyed. This policy reflects the Secret Service's protective duties and its concern for security, as well as a desire to maintain the dignity and aesthetic grandeur of the Executive Mansion." 445 A.2d 961, 966 (D.C. 1982).
63. The Mayor's Agent for Historic Preservation is an administrative law judge delegated the responsibility to monitor historic sites and review applications for demolition, alteration, subdivision and new construction in historic districts or on historic sites. D.C. Code § 6-1101 (2006).
64. Citizens Comm. to Save Historic Rhodes Tavern v. D.C. Dep't of Housing, 432 A.2d 710 (D.C. App. Ct. 1981).
65. Id. at 719 (quoting Maher v. City of New Orleans, 516 F.2d 1051, 1062 (1975)).
66. Dupont Circle Citizens Ass'n v. Barry, 455 A.2d 417 (D.C. 1983). The court, however, did rule against the plaintiff's request for a trial on the matter, as it felt the public bearings surrounding the demolition's approval had provided ample opportunity for considering the group's concerns on the matter.
67. See, e.g., City of Coral Gables v. Wood, 305 So. 2d 261 (Fla. Dist. Ct. App. 1974)
68. Sunad, Inc. v. City of Sarasota, 122 So. 2d 611 (Fla. 1960).
69. Metro. Dade Cty. v. Section II Prop. Corp., 719 So. 2d 1204 (Fla. 1999), State v. Miami Beach Redev. Agency, 392 So. 2d 875 (Fla. 1980)
70. Sarasota Cty. v. Barg, 302 So. 2d 737 (Fla. 1974);
71. State v. Estate Moore, 153 So. 2d 813 (Fla. 1963);
72. Moviematic Indus. Corp. v. Bd. of Cty. Comm'rs, 349 So. 2d 667 (Fla. Dist. Ct. App. 1977). The Florida Supreme Court made an interesting ruling that supported regulation of adult entertainment based apparently (the actual conclusion is unclear) on aesthetics (!) in Stall v. State, 570 So. 2d 257, (Fla. 1990). The court ruled that an obscenity statute was constitutional, citing a U.S. Supreme Court case in its decision: "Moreover, even if a legislative enactment 'reflects unprovable assumptions about what is good for the people, including imponderable aesthetic assumptions, [that] is not a sufficient reason to find that statute unconstitutional.'"
73. Id. at 260 (citing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 62 (1972)).
74. City of Lake Wales v. Lamar Adver. Ass'n of Lakeland, 414 So. 2d 1030 (Fla. 1982).
75. 414 So. 2d at 1032; 68 Westfield Motor Sales Co. v. Town of Westfield, 324 A.2d 113, 119 (N.J. 1974).
76. Westfield Motor Sales Co. v. Town of Westfield, 324 A.2d 113, 119 (N.J. 1974).
77. Lamar-Orlando Outdoor Adver. v. City of Ormond Beach, 415 So. 2d 1312 (Fla. Dist. Ct. App. 1982).
78. Id. at 1315 (citing City of Lake Wales v. Lamar Adver. Ass'n, 414 So. 2d 1030 (Fla. 1982)).
79. The aesthetics issue was a subject of debate at the time. This decision contains a dissent that questions the constitutionality of the ordinance based on its aesthetic purpose: "Aesthetics is a most subjective field and, as a basis for the exercise of regulatory police power, will, when coupled with other misapplied zoning concepts, serve as an excuse for the most arbitrary and despotic acts of government." Id. at 1322
80. see also Proctor v. City of Coral Springs, 396 So. 2d 771 (Fla. Dist. Ct. App. 1981).
81. See Lee County v. Morales, 557 So. 2d 652 (Fla. Dist. Ct. App. 1990),
82. City Comm'n of Miami v. Woodlawn Park Cemetery Co., 553 So. 2d 1227 (Fla. Dist. Ct. App. 1989);
83. Lopez-Torres v. Dep't of Transp., 488 So. 2d 848, (Fla. Dist. Ct. App. 1986).
84. City of Hollywood v. Hollywood, Inc., 432 So. 2d 1332 (Fla. Ct. App. 1982);
85. Sunrise v. D.C.A. Homes, Inc., 421 So. 2d 1084 (Fla. Ct. App. 1982). Federal courts have also upheld regulation based solely on aesthetics in Florida. In Restigouche, Inc.v. Town of Jupiter, the Eleventh Circuit Court of Appeals ruled a zoning ordinance prohibiting automobile sales on a road in Jupiter was constitutional as it was based on the legitimate public purpose of aesthetics.
86. F.3d 1208 (Ct. App. 1995).
87. Smyrna v. Parks, 242 S.E.2d 73 (Ga. 1978).
88. Id. at 77.
89. In Brown v. Dougherty, the Georgia Supreme Court appeared to contradict this stance. 300 S.E.2d 509 (Ga. 1983). It ruled that the Dougberty County Board of Commissioners' refusal to rezone a parcel of land to allow for a mobile home development was a taking, as it presented a significant financial loss to the land owner and was not substantially related to public health, safety, morals or welfare. Id. The court stated that the refusal to zone was based on aesthetic reasons and that those reasons were too vague to constitute a public purpose. Id. However, this decision was based on the facts of the case at hand, not on aesthetics as a purpose in general, Id. The court appeared to be weighing the aesthetic concerns against the loss of value to the property and found the aesthetic concerns insufficient to counteract the economic harm. Id. The Georgia Supreme Court has ruled consistently that aesthetics as a sole public purpose is acceptable.
90. See H & H Operations, Inc. v. Peachtree City, 283 S.E.2d 867 (Ga. 1981);
91. Gouge v. Snellville, 287 S.E.2d 539 (Ga. 1982);
92. Warren v. Marietta, 288 S.E.2d 562 (Ga. 1982);
93. Corey Outdoor Adver., Inc. v. Bd. of Zoning Adjustments, 327 S.E.2d 178 (Ga. 1985).
94. Cf. Parking Ass'n of Georgia, Inc. v. City of Atlanta, 450 S.E.2d 200, (Ga. 1994);
95. Old S. Duck Tours, Inc. v. Mayor of Savannah, 535 S.E.2d 751 (Ga. 2000);
96. Statham v. Diversified Der. Co., 550 S.E.2d 410 (Ga. Ct. App. 2001);
97. Flippen Alliance for Cmty. Empowerment, Inc. v. Brannan, 601 S.E.2d 106 (Ga. Ct. App. 2004).
98. State v. Diamond Motors, Inc., 429 P.2d 825 (Haw. 1967).
99. Id. at 827 (citing Haw. Const. art. VIII, § 5).
100. 429 P.2d at 827.
101. Buddhist Dae Won Sa Temple v. Sullivan, 953 P.2d 1315 (Haw. 1998);
102. see also State v. Bloss, 637 P. 2d 1117 (Haw. 1981).
103. Ben Lomond, Inc. v. Idaho Falls, 448 P.2d 209 (Idaho 1968).
104. Id. at 229.
105. Lamar Corp. v. City of Twin Falls, 981 P.2d 1146 (Idaho 1999).
106. Id. at 1151.
107. John Donnelly & Sons v. Outdoor Adver. Bd., 339 N.E.2d 709 (Mass. 1975).
108. Id. at 717.
109. Rogers v. Norfolk, 734 N.E.2d 1143, 1148 (Mass. 2000).
110. Id. at 1148.
111. Britton v. Zoning Bd. of Appeals of Gloucester, 794 N.E.2d 1198 (Mass. App. Ct. 2003);
112. see also Chatham Conservation Found. v. Farber, 779 N.E.2d 134 (Mass. Ct. App. 2002);
113. Paul's Lobster v. Commonwealth, 758 N.E.2d 145 (Mass. App. Ct. 2001).
114. Britton, 794 N.E.2d at 1204.
115. National Used Cars v. Kalamazoo, 233 N.W. 2d 64 (Mich. App. Ct. 1975).
116. Bufford did, however, cite a 1945 Michigan Supreme Court case, 1426 Woodward Ave. Corp. v. Wolff, 20 N.W.2d 209 (Mich. 1945), which allowed aesthetics combined with other factors to be a legitimate purpose for a sign ordinance. Unmentioned by Bufford, there was a 1969 case, Detroit Edison Co. v. Wixom, where a concurring panel of two of the three judges deciding the case had addressed the issue, concluding that a city ordinance limiting the height of electric line towers was invalid because of its exclusively aesthetic purpose. The two judges did state that aesthetics with other factors may be a valid basis for zoning. However, the actual majority opinion did not mention aesthetics and the Detroit Edison case has never been cited in any subsequent decision in Michigan or elsewhere.
117. N.W.2d 382 (Mich. 1969).
118. Gackler Land Co. v. Yankee Springs Twp., 398 N.W.2d 393 (Mich. 1986).
119. Id. at 397. Lower court decisions appear to reach similar conclusions.
120. In People v. McCendrick, 468 N.W.2d 903 (Mich. Ct. App. 1991), a Michigan appellate court ruled that a weed control ordinance was constitutional and implied, citing National Used Cars, that the desire to enhance scenic beauty could be a valid public purpose on its own.
121. See also Taylor v. Detroit Edison Co., 689 N.W.2d 482 (Mich. Ct. App. 2004);
122. Adams Outdoor Adver., Inc. v. Holland, 600 N.W.2d 339 (Mich. Ct. App. 1999);
123. Gannett Outdoor Co. v. Troy, 409 N.W.2d 719 (Mich. Ct. App. 1986).
124. Rochester Hills v. Schultz, 592 N.W.2d 69 (Mich. 1999);
125. see also Adams Outdoor Adver., Inc. v. Holland, 625 N.W.2d 377 (Mich. 2001)
126. Adams Outdoor Adver. v. E. Lansing, 614 N.W.2d 634 (Mich. 2000)
127. Adams Outdoor Adver. v. E. Lansing, 483 N.W.2d 38 (Mich. 1992).
128. Miss. State Highway Comm'n v. Roberts Enter., Inc., 304 So. 2d 637 (Miss. 1974).
129. Miss. Manufactured Hous. Ass'n v. Bd. of Supervisors, 878 So. 2d 180 (Miss. Ct. App. 2004).
130. Bufford, supra note 2, at 157.
131. Deering v. Tibbetts, 202 A.2d 232 (N.H. 1964).
132. Chesterfield v. Brooks, 489 A.2d 600, 604 (N.H. 1985). This case dealt with a zoning ordinance that regulated the location of mobile homes; on the facts, however, the court ruled it was unconstitutional because it did not bear a substantial relationship to its avowed purposes. For other decisions where the court allowed regulation based on aesthetics combined with other factors, <>> Chesterfield v. Brooks, 489 A.2d 600, 604 (N.H. 1985). This case dealt with a zoning ordinance that regulated the location of mobile homes; on the facts, however, the court ruled it was unconstitutional because it did not bear a substantial relationship to its avowed purposes. For other decisions where the court allowed regulation based on aesthetics combined with other factors,
133. see Alexander v. Hampstead, 525 A.2d 276 (N.H. 1987),
134. State v. Hodgkiss, 565 A.2d 1059 (N.H. 1989),
135. and Korpi v. Peterborough, 599 A.2d 130 (N.H. 1991).
136. Asselin v. Conway, 628 A.2d 247 (N.H. 1993)
137. see also Taylor v. Plaistow, 872 A.2d 769 (N.H. 2005).
138. Berman v. Parker, 348 U.S. 26, 33 (1954).
139. 628 A.2d at 251.
140. See, e.g., Westfield Motor Sales Co. v. Westfield, 324 A.2d 113 (N.J. Super. Ct. Law Div. 1974)
141. Dock Watch Hollow Quarry Pit, Inc. v. Township of Warren, 361 A.2d 12 (N.J. Super. Ct. App. Div. 1976).
142. United Adver. Corp. v. Metuchen, 198 A.2d 447 (N.J. 1964).
143. While the importance of aesthetics has been recognized by the court and it has provided a clear stance on the issue, it is careful to not allow aesthetic goals to trump First Amendment rights such as the freedom of speech. In a case decided in 1980, New Jersey v. Miller, 416 A.2d 821 (N.J. 1980), the court affirmed a lower court decision which declared that a sign control ordinance in a municipality violated the right to free speech of the defendant (a homeowner who had placed a large sign in his yard). The court found that the goal of the "maintenance of aesthetic charm" was not narrowly tailored to the restrictions placed upon signs in the ordinance. The ordinance was found to be too severe and served to limit all forms of political speech without providing an adequate alternative avenue of communication. It appears, however, that commercial speech is somewhat less protected than individual personal speech. The court held in a 1999 case, State v. Schad, 733 A.2d 1159 (N.J. 1999), that a sign control ordinance on commercial properties did not violate the First Amendment rights of an owner of two adult entertainment establishments and declared that the criminal fines for the conviction against the defendant would stand.
144. Commons v. Westwood Zoning Bd. of Adjustment, 410 A.2d 1138 (N.J. 1980).
145. The court held that the board did not include testimony from the municipal building inspector testifying to construction requirements, for example. The board also did not address the size and appearance of other homes near the proposed construction site. See Bressman v. Gash, 621 A.2d 476 (N.J. 1993).
146. Burbridge v. Twp. of Mine Hill, 568 A.2d 527, 533 (N.J. 1990)
147. see also Bressman, 621 A.2d 476.
148. Santa Fe v. Gamble-Skogmo, Inc., 389 P.2d 13 (N.M. 1964).
149. Temple Baptist Church v. Albuquerque, 646 P.2d 565 (N.M. 1982).
150. Id. at 571.
151. The court also found that traffic safety is a legitimate auxiliary consideration; however, the court concluded that the decision would have remained the same regardless of any auxiliary considerations. In subsequent cases, New Mexico courts have also logically ruled that aesthetics combined with auxiliary considerations constitute a governmental interest. See Battaglini v. Red River, 669 P.2d 1082 (N.M. 1983)
152. Dick v. Portales, 863 P.2d 1093 (N.M. Ct. App. 1993).
153. People v. Stover, 191 N.E.2d 272 (N.Y. 1963).
154. Id. at 274.
155. Cromwell v. Ferrier, 225 N.E.2d 749 (N.Y. 1967).
156. Id.
157. People v. Goodman, 290 N.E.2d 139 (N.Y. 1972).
158. Suffolk Outdoor Adver. Co. v. Hulse, 373 N.E.2d 263 (1977).
159. Although the court has upheld ordinances that are based primarily upon aesthetic justifications, in a 1978 case, DeSena v. Board of Zoning Appeals, 379 N.E.2d 1144 (N.Y. 1978), the court vacated the decision of a local zoning board that denied a property owner a variance for a lot that was too narrow. The court found that the board erred in basing its decision upon aesthetic grounds, since these criteria were not first outlined in the city's local law. The court did reiterate its previous holdings that support aesthetics, however, finding that zoning ordinances may indeed support aesthetic regulation. In this case, however, the board did not exercise its judgment based upon a clearly delineated village ordinance; therefore, it did not have the authority to deny the variance.
160. See also Cromwell v. Ferrier, 225 N.E.2d 749 (N.Y. 1967).
161. Modjeska Sign Studios, Inc. v. Berle, 373 N.E.2d 255 (N.Y. 1977).
162. King Services, Inc. v. Town Bd. of Malta, 554 N.E.2d 1278 (N.Y. 1990).
163. See, e.g., Teachers Ins. & Annuity Ass'n of Am. v. New York City, 623 N.E.2d 526 (N.Y. 1993).
164. Penn Cent. Transp. Co. v. City of New York, 366 N.E.2d 1271 (N.Y. 1977), aff'd, 438 U.S. 104 (1978).
165. Id. at 1274.
166. Trs. of Union Coll. v. City Council of Schenectady, 690 N.E.2d 862 (N.Y. 1997).
167. State v. Brown, 108 S.E.2d 74 (N.C. 1959).
168. Little Pep Delmonico Rest., Inc. v. City of Charlotte 113 S.E.2d 422 (N.C. 1960).
169. State v. Vestal, 189 S.E.2d 152 (N.C. 1972).
170. A-S-P Associates v. Raleigh, 258 S.E.2d 444 (N.C. 1979).
171. Id. at 450.
172. State v. Jones, 290 S.E.2d 675 (N.C. 1982).
173. While the state supreme court has not ruled on the issue since State v. Jones, state appellate court decisions support this stance on aesthetics. See Pine Knoll Shores v. Evans, 407 S.E.2d 895 (N.C. Ct. App. 1991)
174. Summey Outdoor Adver., Inc. v. County of Henderson, 386 S.E.2d 439 (N.C. Ct. App. 1989)
175. In re Appeal from CAMA Minor Dev. Permit etc., 345 S.E.2d 699 (N.C. Ct. App. 1986)
176. Goodman Toyota, Inc. v. Raleigh, 306 S.E.2d 192 (N.C. Ct. App. 1983).
177. Oregon City v. Harke, 400 P.2d 255 (Or. 1965).
178. Id. at 262.
179. A 1968 case, Perkins v. Marion County, 448 P.2d 374, 377 (Or. 1968), verified this decision by stating that Or. Rev. Stat. § 215.05, a state zoning enabling act, provided for the consideration of the "public need for healthful, safe, aesthetic surroundings and conditions."
180. Another case, which dealt with an ordinance that prohibited mobile homes from a community, Clackamas County v. Dunham, 579 P.2d 223 (Or. 1978), also recognized this legislation and its impact upon county zoning regulations.
181. Cope v. City of Cannon Beach, 855 P.2d 1083 (Or. 1993).
182. Town of Hilton Head Island v. Fine Liquors, Ltd., 397 S.E.2d 662 (S.C. 1990).
183. Id. at 664.
184. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984).
185. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).
186. Peterson Outdoor Adver. v. Myrtle Beach, 489 S.E.2d 630, 632 (S.C. 1997).
187. In a 1999 case, Whaley v. Dorchester Zoning Bd. of Appeals, 524 S.E.2d 404 (S.C. 1999), the court decided that an ordinance that prohibited the parking of commercial vehicles in a residential zone was constitutional. The court found that the ordinance was legitimately designed to protect the government's interest in aesthetics, in conjunction with the goals of limiting traffic and protecting property values. Although aesthetic considerations were not the only justification for the ordinance, based on this court's previous rulings finding favor in aesthetic regulation, one may suppose that had aesthetics been named as the only cause in this case, the ordinance would have most likely still prevailed.
188. Norris v. Bradford, 321 S.W.2d 543 (Tenn. 1958).
189. Bufford noted that this was a poorly argued case that relied on old cases for support and omitted relevant, more recent contrary cases.
190. State v. Smith, 618 S.W.2d 474 (Tenn. 1981).
191. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 129 (1978) (holding that land use restrictions may be enacted to "enhance the quality of life by preserving the character and desirable aesthetic features of a city")
192. Stone v. City of Maitland, 446 F.2d 83, 89 (5th Cir. 1971) (holding that "zoning ordinances restricting size and location of service station sites upheld - 'enhancement of the aesthetic appeal of a community is a proper exercise of the police power'").
193. State v. Smith, 618 S.W.2d at 477. Other justifications for the enactment and enforcement of the junkyard prohibition statute include highway safety and maintenance and the protection of the public investment in highways.
194. Buhler v. Stone, 533 P.2d 292, 294 (Utah 1975).
195. The cited cases were City of Oregon City v. Hartke, 400 P.2d 255 (Or. 1965),
196. State v. Diamond Motors, Inc., 429 P.2d 825 (Haw. 1967),
197. and Cromwell v. Ferrier, 225 N.E.2d 749 (N.Y. 1967). This ordinance was an amendment to a health and safety ordinance and the dissenting judge noted that it was unclear whether it was based on aesthetics alone.
198. Thurston v. Cache County, 626 P.2d 440 (Utah 1981).
199. Thus, courts have upheld ordinances which permit conditional use permits "where the use will be in keeping with the uses authorized in the district," where the zoning authority was required to consider harmony with the neighborhood and the district, or where the zoning authority was required to consider the suitability of the property, character of the neighborhood, and economic or aesthetic effects of the proposed use. Id. at 444 (citations omitted).
200. Anderson v. Provo City Co., 108 P.3d 701 (Utah 2005).
201. Vermont Salvage Corp. v. Vill. of St. Johnsbury, 34 A.2d 188 (Vt. 1943). The court ruled that the ordinance was unconstitutional, in part because of its aesthetic purpose, but did not specify whether it was basing its conclusion on the Vermont or the U.S. Constitution.
202. Id. at 194-97.
203. Sandgate v. Colehamer, 589 A.2d 1205, 1207 (Vt. 1990).
204. Id. at 1210.
205. Vt. Stat. Ann. tit. 2, § 4302(a) (2005).
206. Sandgate, 589 A.2d at 1210. The court has also recognized that aesthetics combined with other factors is a valid basis for evaluating new developments. In 1970, the Vermont State Legislature passed Act 250, which requires the Vermont Environmental Board to evaluate new development projects in terms of aesthetic effects, among other factors. In the case of In re Chester P. and Bertha G. Denio, 608 A.2d 1166 (Vt. 1992), the Supreme Court supported the decision of the Environmental Board as it imposed conditions on subdivision developers to reduce negative environmental and undue aesthetic impacts. Another such case, In re Quechee Lakes Corp., 580 A.2d 957 (Vt. 1990), demonstrated the court's deference to the Environmental Board's decisions to reduce negative aesthetic impacts as it affirmed a lower court ruling that required appellants to make substantial modifications in its Ridge condominium project. Thus, the court has followed the movement of the state's legislature to improve aesthetics in Vermont's communities.
207. Racine County v. Plourde, 157 N.W.2d 591, 595 (Wis. 1968).
208. State v. Wieland, 69 N.W.2d 217 (Wis. 1955), heard in 1955, was the first of the state's rulings recognizing aesthetics as a proper objective of the police power.
209. One case, heard in 1923, State v. Harper, 196 N.W. 451 (Wis. 1923), seemed to consider the question but found that aesthetic considerations are relative in their nature and are constantly changing. The court held that, "the rights of property should not be sacrificed to the pleasure of an ultra-aesthetic taste. But whether they should be permitted to plague the average or dominant human sensibilities, well may be pondered."
210. Id. at 455. The court in Saveland held that an architectural review board was justified in not allowing the erection of certain structures in a neighborhood that did not fit in with the existing surrounding structures. Although the court did not rule that aesthetics alone could be justified, it deferred to the U.S. Supreme Court case, Berman v. Parker, and stated that although the general rule of the Wisconsin Supreme Court has been that "zoning power may not be exercised for purely aesthetic reasons, such rule is undergoing development ... and this development of the law has proceeded to the point that renders it extremely doubtful that such prior rule is any longer the law." 69 N.W.2d at 222.
211. State supreme court cases following Saveland furthered this trend of supporting aesthetics as a valid exercise of the police power in Wisconsin. A 1959 case, Highway 100 Auto Wreckers, Inc. v. City of West Allis, 96 N.W.2d 85 (Wis. 1959), held that a junkyard control ordinance may be upheld on the basis of aesthetics, in conjunction with other factors such as traffic safety and reducing crime.
212. A case in 1966 dealing with the preservation of scenic roadways is Kamrowski v. State, 142 N.W. 2d 793 (Wis. 1966), in which the court affirmed a circuit court decision that lands may be acquired by the state from private parties for the purpose of scenic easements along a highway. The court noted that "the concept of preserving a scenic corridor along a parkway, with its emphasis upon maintaining a rural scene and preventing unsightly uses is sufficiently definite so that the legislature may be said to have made a meaningful decision in terms of public purpose, and to have fixed a standard which sufficiently guides the commission in performing its task."
213. Id. at 797.
214. State v. Wash. County Bd. of Adjustment, 676 N.W.2d 401 (Wis. 2004).
215. Id. at 563.
216. Larsen v. Munz Corp., 482 N.W.2d 332 (Wis. 1992), a 1992 case dealing with the obstruction of views of columns at the state administration building in Madison, investigated the issue of aesthetics as a basis for an Environmental Impact Statement (EIS). Larsen alleged that the proposed ten-story building would obstruct his view of the capital building, specifically the columns supporting the capitol dome, and thus, ah EIS should be filed for the project. The court in this case found that aesthetic concerns serve as an unsatisfactory basis for requiring an EIS. However, the Wisconsin Environmental Policy Act (WEPA) protects aesthetic interests as well as conservational, physical, economic, and recreational. The Supreme Court concluded that the Department of Administration's decision not to prepare an EIS to evaluate the proposed building was reasonable. Although this case appears to downgrade the idea of aesthetics in the mind of the court, it involves a procedural, and not a substantive question on the issue. Whether an Impact Statement should be performed is irrelevant to the fact that the court has upheld in several previous cases (aforementioned) that regulation based solely on aesthetics is a proper exercise of the police power. This trend in decision-making appears to stand in the Wisconsin high court, despite the appearance of the Larsen decision.
217. See City of Madison v. Crossfield, 671 N.W.2d 717 (Wis. Ct. App. 2003)
218. Step Now Citizens Group v. Town of Utica Planning & Zoning Comm., 663 N.W.2d 833 (Wis. Ct. App. 2003)
219. Vill. of Lake Delton v. Roberts, 644 N.W.2d 295 (Wis. Ct. App. 2002)
220. Kraemer Co. v. Sauk County Bd. of Adjustment, 635 N.W.2d 905 (Wis. Ct. App. 2001)
221. State v. Ovadal, 611 N.W.2d 471 (Wis. Ct. App. 2000)
222. Kapischke v. County of Walworth, 595 N.W.2d 42 (Wis. Ct. App. 1999)
223. State ex rel. Hoey Outdoor Adver. v. Polk County, 588 N.W.2d 929 (Wis. Ct. App. 1998)
224. Wulf v. Twp. of Montello, 568 N.W.2d 321 (Wis. Ct. App. 1997).
225. Bass Lake v. Sawyer County Bd. of Appeals, 685 N.W.2d 173 (Wis. Ct. App. 2004), cert. denied, 689 N.W. 2d 57 (Wis. 2004).
226. Repairing the old buildings would have cost over 50% of the buildings' fair market values, which was prohibited under the county's zoning code.
227. Berman v. Parker, 348 U.S. 26 (1954).
228. Id. at 33.
229. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).
230. Id. at 129
231. see New Orleans v. Dukes, 427 U.S. 297 (1976)
232. Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)
233. Vill. of Belle Terre v. Boraas, 416 U.S. 1, 9-10 (1974)
234. Berman v. Parker, 348 U.S. 26, 33 (1954)
235. Welch v. Swasey, 214 U.S. 91, 108 (1909).
236. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).
237. Id. at 510.
238. Id. at 507-08.
239. Members of City Council v. Taxpayers of Vincent, 466 U.S. 789 (1984). The signs were 15 inches by 44 inches, constructed of cardboard, and secured to the utility poles by draping them over the wires which supported the poles and stapling them together at the bottom of each sign. Each sign displayed the message: "Roland Vincent - City Council."
240. Id. at 807. The Court determined that aesthetics was a substantial public purpose requiring intermediate scrutiny. In a dissent, Justice Brennan stressed the need to objectively evaluate whether the aesthetic purpose in question was truly a substantial public purpose in First Amendment cases. In this case, he said that it was necessary to determine whether the removal of the signs was for the lawful purpose of eliminating visual clutter that disturbed the community's desire for an orderly and visually pleasing environment or for the unlawful purpose of removing an aesthetically displeasing message. "[W]e must avoid unquestioned acceptance of the City's bare declaration of ah aesthetic objective lest we fail in our duty to prevent unlawful trespasses upon First Amendment protections." Id. at 824.
241. 42 U.S.C.A. § 2000cc-(a) (2000).
242. Smith v. Mobile, 374 So. 2d 305 (Ala. 1979).
243. Id. at 306.
244. Id. at 309.
245. Sigler v. Mobile, 387 So. 2d 813 (Ala. 1980).
246. Id. at 814.
247. Id. at 814.
248. Chorzempa v. Huntsville, 643 So. 2d 1021 (Ala. Crim. App. 1993).
249. City of Coral Gables v. Wood, 305 So. 2d 261 (Fla. Dist. Ct. App. 1974)
250. Livingston Twp. v. Marchev, 205 A.2d 65 (N.J. Super. Ct. App. Div. 1964)
251. State v. Wieland, 69 N.W. 2d. 217 (Wis. 1955), cert. denied, 350 U.S. 841 (1955)
252. Continental Homes of Chicago, Inc. v. Lake County, 346 N.E. 2d 226 (III. 1976)
253. Berk v. Wilkinsburg Zoning Hearing Bd., 410 A.2d 904 (Pa. Commw. Ct. 1980).
254. City of Mobile v. Weinacker, 720 So. 2d 953 (Ala. Civ. App. 1998).
255. Id. at 954.
256. Walter v. City of Gulf Shores, 829 So. 2d 181 (Ala. Crim. App. 2001).
257. Id. at 183.
258. Id. at 186.
259. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984).
260. Alabama does have a clear stance on aesthetics in the regulation of highways. In 1975, the Alabama legislature enacted the Alabama Highway Beautification Act, Alabama Code 1975, 23-1-270 et seq. The act allows regulation for aesthetic purposes, at least when in exercised in conjunction with two other purposes-to protect the public investment in travel corridors and roadways and to promote recreational highway travel. The Alabama Supreme Court upheld enforcement of this act in the case of Lamar Advertising of Montgomery, Inc. v. State of Alabama Department of Transportation. 694 So. 2d 1256 (Ala. 1996). While the Court did not specifically comment on the aesthetics aspects of the Highway Beautification Act, Justice Houston stated in special concurrence: The Alabama Highway Beautification Act was clearly intended to reduce the prevalence of outdoor advertising, especially in the more rural and scenic portions of our state. It resulted from an obvious attempt to balance the economic interests of businesses seeking to advertise and the outdoor advertising businesses that help to meet those advertising needs against the aesthetic and safety interests of Alabama's citizens and those who visit Alabama.... By restricting outdoor advertising principally to commercially developed and more urban areas of our state, the legislature struck an almost perfect compromise that benefits both advertisers and those interested in preserving Alabama's natural beauty.
261. City of Scottsdale v. Ariz. Sign Ass'n, Inc., 564 P.2d 922 (Ariz. Ct. App. 1977). The court ruled that the issue was not ripe for judgment, as the appellants had not been denied a permit based on the ordinance.
262. Id. at 923.
263. Corrigan v. City of Scottsdale, 720 P.2d 528 (Ariz. Ct. App. 1985), reconsideration denied on other grounds.
264. Id. at 536 n.7.
265. Outdoor Systems, Inc. v. Whiteco Metrocom., Inc., 819 P.2d 44 (Ariz. 1991).
266. Id. at 48.
267. The court relied strongly on Metromedia, Inc. v. City of Sala Diego, 453 U.S. 490, 508-10 (1981).
268. Id. at 51.
269. Id. at 48 (citing National Adver. Co. v. City of Orange, 861 F.2d 246, 248 (9th Cir. 1988)).
270. Figarsky v. Historic Dist. Comm'n, 368 A.2d 163 (Conn. 1976).
271. Id. at 171.
272. Capalbo v. Planning and Zoning Bd. of Greenwich, 547 A.2d 528 (Conn. 1988).
273. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)
274. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978), reh. denied, 439 U.S. 883 (1978)
275. Berman v. Parker, 348 U.S. 26 (1954).
276. Builders Service Corp. v. Planning and Zoning Comm'n of E. Hampton, 545 A.2d 530 (Conn. 1988).
277. Id. at 551.
278. Cohen v. City of Hartford, 710 A.2d 746 (Conn. 1998).
279. Id. at 754.
280. First Church of Christ v. Historic Dist. Comm'n of Ridgefield, 738 A.2d 224 (Conn. Super. Ct. 1998).
281. Id. at 229. For other similar unreported decisions by Connecticut Superior Courts, see Cooke v. Planning and Zoning Comm'n of Wallingford, No. CV010456216S(X29), 2002 Super. Ct. Conn. LEXIS 3822 (New Haven Nov. 27, 2002)
282. Kolesnik v. Woodbury Planning Comm'n, No. CV980145589S, 2002 Super Ct. Conn. LEXIS 3249 (Waterbury Oct. 1, 2002)
283. Harris v. New Milford Zoning Comm'n, No. CV000081830S, 2001 Super. Ct. Conn. LEXIS 86 (Litchfield Jan. 8, 2001).
284. Ware v. Wichita, 214 P. 99 (Kan. 1923). In 1975, the court discussed aesthetics in Houston v. Board of City Commissioners, 543 P.2d 1010 (Kan. 1975). Its decision contained language supporting aesthetics as a public purpose; however, it also determined that any aesthetic purpose of the zoning reclassification it was ruling on was incidental and thus did not decide the case on the issue.
285. Reike Bldg. Co. v. City of Overland Park, 657 P.2d 1121 (Kan. 1983).
286. Id. at 1129.
287. Boyles v. City of Topeka, 21 P.3d 974 (Kan. 2001).
288. Rodrock Enters. L.P.v. City of Olathe, 21 P.3d 598 (Kan. Ct. App. 2001).
289. Id. at 601
290. see Blockbuster Video v. City of Overland Park, 948 P.2d 179 (Kan. Ct. App. 1997).
291. See New Ofieans v. Levy, 64 So. 2d 798 (La. 1953) (court upheld the constitutionality of both a city ordinance and state constitutional provision that protected the aesthetic character of the French Quarter and concluded that this protection was based on both aesthetic and commercial reasons and thus a valid exercise of the police power)
292. see also Shreveport v. Brock, 89 So. 2d 156 (La. 1956)
293. Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975).
294. State ex rel. Civello v. New Orleans, 97 So. 440 (La. 1923).
295. Id. at 444.
296. Lake Charles v. Chaney, 468 So. 2d 1191, 1193 (La. 1985)
297. see also Palermo Land Co. v. Planning Comm'n of Calcasieu Parish, 561 So. 2d 482 (La. 1990).
298. Lake Charles v. Henning, 414 So. 2d 331 (La. 1982).
299. Vezina v. Jefferson, 506 So. 2d 227 (La. Ct. App. 1987)
300. see also Fleckinger v. Jefferson Parish Council, 510 So. 2d 429 (La. Ct. App. 1987).
301. One lower court decision, however, has not allowed aesthetics to have a strong role in regulation. In Christopher Estates, Inc. v. East Baton Rouge, 413 So. 2d 1336 (La. Ct. App. 1982), a Louisiana court of appeals case dealing with a denial of a subdivision permit, the court stated that "although aesthetics have some part in the general welfare of the public, this part must be deemed marginal when compared to considerations such as public health and safety."
302. Wright v. Michaud, 200 A.2d 543 (Me. 1964).
303. Warren v. Municipal Officers of Gorham, 431 A.2d 624 (Me. 1981).
304. Stewart v. Durham, 451 A.2d 308 (Me. 1982).
305. Brophy v. Castine, 534 A.2d 663 (Me. 1987).
306. Id. at 664.
307. Charlton v. Oxford, 774 A.2d 366, 376 (Me. 2001).
308. 262 Naegele Outdoor Adver. Co. of Minnesota v. Minnetonka, 162 N.W.2d 206 (Minn. 1968).
309. White Bear Docking & Storage, Inc. v. White Bear Lake, 324 N.W.2d 174 (Minn. 1982).
310. Id. at 177-78 (citing C.R. Investments, Inc. v. Shoreview, 304 N.W.2d 320, 327 (Minn. 1981)).
311. See also County of Pine v. State, Dep't of Natural Res., 280 N.W.2d 625 (Minn. 1979)
312. PTL v. Chisago County Bd. of Comm.'rs, 656 N.W.2d 567 (Minn. Ct. App. 2003)
313. AVR, Inc. v. St. Louis Park, 585 N.W.2d 411 (Minn. Ct. App. 1998)
314. N. States Power Co. v. Oakdale, 588 N.W.2d 534 (Minn. Ct. App. 1998)
315. Toward v. Minneapolis, 456 N.W.2d 460 (Minn. Ct. App. 1990)
316. Cottage Grove v. Ott, 395 N.W.2d 111 (Minn. Ct. App. 1986).
317. State ex rel. Stoyanoff v. Berkeley, 458 S.W.2d 305 (Mo. 1970).
318. Deimeke v. State Highway Comm'n, 444 S.W.2d 480 (Mo. 1969).
319. State ex rel. Wilkerson v. Murray, 471 S.W.2d 460 (Mo. 1971), cert. denied, 404 U.S. 851 (1971).
320. St. Louis Gunning Adver. Co. v. St. Louis, 137 S.W. 929 (Mo. 1911).
321. Id. at 960.
322. City of Independence v. Richards, 666 S.W. 2d 1 (Mo. Ct. App. 1983).
323. Id. at 6.
324. BBC Fireworks, Inc. v. State Highway & Transp. Comm'n, 828 S.W.2d 879 (Mo. 1992).
325. State v. Bernhard, 568 P.2d 136 (Mont. 1977).
326. Id. at 138.
327. Id.
328. State v. Green, 739 P.2d 469 (Mont. 1987).
329. Id. at 473.
330. Id.
331. Mont. Media, lnc. v. Flathead County, 63 P.3d 1129 (Mont. 2003).
332. Id. at 1133.
333. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y. 447 U.S. 557 (1980). The Central Hudson test requires the court to determine: whether the asserted governmental interest in the regulation is "substantial," whether the regulation "directly advances the governmental interest asserted" (narrowly tailored), and whether "it is not more extensive than is necessary to serve that interest." Id.
334. 63 P.3d at 1136.
335. Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D. 1978).
336. County of Stutsman v. State Historical Soc'y, 371 N.W. 2d 321 (N.D. 1985).
337. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978).
338. 371 N.W.2d at 330 (citing Penn Cent., 438 U.S. at 107).
339. Sanderson v. City of Mobridge, 317 N.W.2d 828 (S.D. 1982).
340. Id. at 829.
341. Farley v. Graney, 119 S.E.2d 833 (W. Va. 1960).
342. An important 1937 case that Bufford does not discuss is cited and quoted in the Farley decision. The West Virginia Supreme Court of Appeals in Parkersburg Builders Material Co. v. Barrack, 191 S.E. 368 (W. Va. 1937), linked aesthetics with property values. In this case, the court reversed a lower court decision declaring an automobile-wrecking business a nuisance because of its unsightliness; however, the court would have declared it a nuisance had the business been located in an established residential community. Judge Maxwell stated, Happily, the day has arrived when persons may entertain appreciation of the aesthetic and be heard in equity in vindication of their love of the beautiful, without becoming objects of opprobrium. Basically, this is because a thing visually offensive may seriously affect the residents of a community in the reasonable enjoyment of their homes, and may produce a decided reduction in property values. Courts must not be indifferent to the truth that within essential limitations, aesthetics has a proper place in the community affairs of modern society.
343. S.E. at 371, quoted in Farley, 119 S.E.2d at 846-47.
344. Fisher v. Charleston, 425 S.E.2d 194 (W. Va. 1992).
345. Id. at 200.
346. The primary case Bufford used as support was the 1956 Iowa Supreme Court case, Stoner McCray Sys. v. City of Des Moines, 78 N.W.2d 843 (Iowa 1956). In this case, the court ruled that a provision of a billboard control ordinance was invalid because of an unreasonable amortization period. However, the ruling contained language supporting aesthetics as a basis for regulation when combined with other purposes.
347. City of Cedar Falls v. Flett, 330 N.W.2d 251 (Iowa 1983).
348. Id. at 255.
349. Immaculate Conception Corp. v. Iowa DOT, 656 N.W.2d 513 (Iowa 2003).
350. Id. at 517.
351. Tri-State Outdoor Media Groups v. Iowa Dep't of Transp., No. 1-468/ 00-1628, 2002 Ct. App. Iowa LEXIS 304, *13 (2002).
352. Jasper v. Commonwealth, 375 S.W.2d 709 (Ky. Ct. App. 1964).
353. Moore v. Ward, 377 S.W.2d 881 (Ky. Ct. App. 1964).
354. The court has ruled to allow aesthetics with safety as a basis for the regulation of highway signs. Most recently, in 2000 in Uniting v. Commonwealth, 19 S.W.3d 652 (Ky. 2000), the court again upheld restrictions on billboards near highways. The court held that these regulations were reasonable because "the clear, basic intent of both the federal and state law is to prohibit billboards within 660 feet of interstate highways for safety and aesthetic purposes." See also Transp. Cabinet Dep't of Highways v. G.L.G., Inc., 937 S.W.2d 709 (Ky. 1997)
355. Flying J Travel Plaza v. Transp. Cabinet. Dep't of Highways, 928 S.W. 2d 344 (Ky. 1996)
356. Dimmer v. Commonwealth Transp. Dep't of Highways, 786 S.W.2d 861 (Ky. 1990)
357. Whiteco Metrocom Corp. v. Commonwealth, 14 S.W.3d 24 (Ky. Ct. App. 1999). In a decision with somewhat bizarre logic, the Kentucky Supreme Court recently allowed regulation based solely on aesthetics in an indoor nudity case. In 1998 in Hendricks v. Commonwealth, the court ruled that aesthetics could be a sole public purpose when regulating pubic nudity. 865 S.W.2d 332 (Ky. 1993). The City of Newport had enacted an ordinance making it illegal to be nude in any public place, with the purpose of improving the quality of life within its boundaries. The case concerned whether a nude dancing club was considered a public or private place. The court determined that the club was a public place, as any member of the public could pay a fee to enter, and that the city could thus properly regulate nudity there. In supporting its ruling, the court cited leading U.S. Supreme Court cases on the aesthetics issue: "It is well settled that the state may legitimately exercise police power to advance aesthetic values.... The concept of public welfare is broad and inclusive. The values it protects are spiritual as well as physical, aesthetic as well as monetary. Berman v. Parker." Id. at 338. It is difficult to understand why regulation of indoor nudity should be based on aesthetics and, in any event, the principles of the case have never been applied to land use regulation.
358. Bd. of County Comm'rs v. CMC of Nev., Inc., 670 P.2d 102 (Nev. 1983).
359. State ex rel. DOT v. C.V. Pile, 603 P.2d 337 (Okla. 1979).
360. Mid-Continent Life Ins. Co. v. Okla. City, 701 P.2d 412 (Okla. 1985).
361. Id. at 415.
362. April v. City of Broken Arrow, 775 P.2d 1347 (Okla. 1989).
363. Dulaney v. Okla. State Dep't. of Health, 868 P.2d 676, 683 (Okla. 1993).
364. Bd. of Cty. Comm'rs v. Crow, 65 P.3d 720 (Wyo. 2003).
365. Id. at 739.
366. Neef v. City of Springfield, 43 N.E.2d 947 (III. 1942).
367. Cosmopolitan Nat'l Bank v. County of Cook, 469 N.E.2d 183, 190 (III. 1984).
368. See also County of Lake v. First Nat'l Bank, 402 N.E.2d 591 (III. 1980)
369. Harris Trust & Sav. Bank v. Duggan, 449 N.E.2d 69 (III. 1983)
370. Landmarks Pres. Council v. Chicago, 531 N.E.2d 9 (III. 1988)
371. Scadron v. City of Des Plaines, 606 N.E.2d 1154 (III. 1992) (home rule includes regulation of aesthetics);
372. Trust & Sav. Bank v. County of Cook, 402 N.E.2d 719 (III. Ct. App. 1980)
373. Rent-A-Sign v. Rockford, 406 N.E.2d 943 (III. Ct. App. 1980)
374. Champaign v. Kroger Co., 410 N.E.2d 661 (III Ct. App. 1980)
375. Belleville v. Kesler, 428 N.E.2d 617 (III. Ct, App. 1981)
376. Gust v. Westchester, 442 N.E.2d 525 (III. Ct. App. 1982)
377. Ridge Outdoor Adver. Co. v. Indian Head Park, 472 N.E.2d 850 (III. Ct. App. 1984)
378. Chicago v. Gordon, 497 N.E.2d 442 (III. Ct. App. 1986)
379. Gunderson v. Hinsdale, 508 N.E.2d 1212 (III. Ct. App. 1987)
380. Dingeman Adver., Inc. v. Mt. Zion, 510 N.E.2d 539 (III. Ct. App. 1987)
381. Rolling Meadows v. Nat'l. Adver. Co., 593 N.E.2d 551 (III. Ct. App. 1991)
382. Waterfront Estates Dev., Inc. v. Palos Hills, 597 N.E.2d 641 (III. Ct. App. 1992)
383. Waterloo v. Markham, 600 N.E.2d 1320 (III. Ct. App. 1992)
384. Westwood Forum v. Springfield, 634 N.E.2d 1154 (III. Ct. App. 1994)
385. Village of Schanmburg v. Jeep Eagle Sales, 676 N.E.2d 200 (III. Ct. App, 1996)
386. Wakeland v. Urbana, 776 N.E.2d 1194 (III. Ct. App. 2002). The Illinois Supreme Court has indicated its opposition to aesthetics alone in standing cases, in which it holds that aesthetic interests "while not to be disregarded, are not controlling on the question of standing." Landmarks Pres. Council of Illinois v. City of Chicago, 531 N.E.2d 9, 13 (Ill. 1988) (architectural and preservation organizations)
387. Harris Trust & Sav. Bank v. Duggan, 449 N.E.2d 69 (Ill. 1983) (no standing on the basis of aesthetics in the absence of economic injury).
388. Lasalle Nat'l Bank v. Evanston, 312 N.E.2d 625 (Ill. 1974)
389. see also Grobman v. Des Plaines, 322 N.E.2d 443 (Ill. 1975).
390. General Outdoor Adver. Co. v. City of Indianapolis, 172 N.E. 309 (Ind. 1930).
391. Id. at 312.
392. Id. at 314. Bufford's interpretation of this case may be open to question. One could equally well conclude that the court accepted aesthetics as an appropriate regulatory purpose when used in conjunction with other public purposes. Indeed, as discussed in the text, lower court decisions reinforce the conclusion that in Indiana the inclusion of aesthetics in the purposes of an ordinance does not invalidate the ordinance.
393. Saner v. Columbus-Bartholomew County, 629 N.E.2d 893 (Ind. 1994).
394. Id. at 898.
395. Ad Craft v. Bd. of Zoning Appeals, 693 N.E.2d 110 (Ind. 1998)
396. see also Wallace v. Brown County Area Planning Comm'n, 689 N.E.2d 491 (Ind. Ct. App. 1998).
397. Id. at 114.
398. City of Baltimore v. Mano Swartz, Inc., 299 A.2d 828 (Md. 1973).
399. Coscan Washington, Inc. v. Maryland-National Capital Park & Planning Comm'n, 590 A.2d 1080 (Md. Ct. Spec. App, 1991).
400. See also Montgomery County v. Citizens Bldg. & Loan Ass'n., Inc., 316 A.2d 322 (Md. Ct. Spec. App. 1974).
401. Id. at 1088.
402. Baker v. Somerville, 293 N.W. 326 (Neb. 1940).
403. See, e.g., Scottsbluff v. Winters Creek Canal Co., 53 N.W.2d 543 (Neb. 1952)
404. Milford v. Schmidt, 120 N.W. 2d 262 (Neb. 1963). 267 Bufford, supra note 2, at 142.
405. State v. Buckley, 243 N.E.2d 66 (Ohio 1968).
406. See, e.g., Sun Oil Co. of Pa. v. City of Upper Arlington, 379 N.E.2d 266 (Ohio Ct. App. 1977)
407. P & S Inv. Co. v. Brown, 320 N.E.2d 675 (Ohio Ct. App. 1974)
408. City of Pepper Pike v. Landskroner, 371 N.E.2d 579 (Ohio Ct. App. 1977).
409. Bufford, supra note 2, at 143. The court has been careful, on the other hand, to not allow governmental aesthetic interests to infringe upon First Amendment rights. For example, in the 1967 case of Peltz v. South Euclid, 228 N.E.2d 320 (Ohio 1967), the court invalidated a sign control ordinance that sought to eliminate political signs, finding that the legislative action violated the appellant's right to free speech. While the court appeared to support aesthetic regulation in theory, it ruled that the ordinance, based upon aesthetic considerations, did not serve a compelling governmental interest.
410. Reid v. Arch. Bd. of Rev. of Cleveland Heights, 192 N.E.2d 74 (Ohio Ct. App. 1963).
411. Judge Corrigan dissented, arguing that the evidence in the case supported a conclusion that aesthetics alone was the basis for the denial. This position was clearly rejected by the majority.
412. Vill. of Hudson v. Albrecht, Inc., 458 N.E.2d 852 (Ohio 1984).
413. Id. at 856.
414. The language of the majority is at least slightly ambiguous. However, in his dissent, Judge Clifford Brown makes it clear that the court continues to adhere to the rule in Buckley, i.e., that aesthetics as a sole basis for the police power is confined to uses that are visual nuisances, Id. at 858-59. He argues that on the facts the ordinance was based on aesthetics alone, even though the court itself concluded that other factors were present.
415. Franchise Developers, Inc. v. City of Cincinnati, 505 N.E.2d 966 (Ohio 1987).
416. For more recent cases where Ohio courts have affirmed this stance on aesthetics, see Barrister's, Inc. v. Westerville City Council, 2004 Ohio 2533 (Ohio Ct. App. 2004)
417. Mayfield Heights v. Barry, 2003 Ohio 4065 (Ohio Ct. App. 2003)
418. Prakash v. Copley Twp., 2003 Ohio 642 (Ohio Ct. App. 2003)
419. Bella Vista Group, Inc. v. Stringsville, 2002 Ohio 4434 (Ohio Ct. App. 2002). In a case involving outdoor advertising controls, Ohio Department of Transportation v. Rimmelin, 472 N.E.2d 341 (Ohio 1984), the court upheld a municipal and state sign regulation act, finding that it is within the police power of both entities to enforce out- door advertising regulations within city limits, in accordance with the federal Highway Beautification Act, 23 U.S.C. §§ 131 et seq. (passed in 1965). As mentioned previously, while the court promotes aesthetic regulation in most cases, the court is careful to consider First Amendment rights to free speech when weighed against aesthetic interests. In a recent case, Painesville Building Dep't v. Dworken & Bernstein Co., the court ruled that a sign control ordinance that placed restrictions on political signs was unconstitutional, finding that the ordinance was not narrowly tailored to meet its goals of protecting traffic safety and eliminating visual clutter. 733 N.E.2d 1152 (Ohio 2000).
420. N. Ohio Sign Contractors Ass'n v. Lakewood, 513 N.E.2d 324 (Ohio 1987).
421. See, e.g., Costopoulos v. Zoning Bd. of Adjustment, 351 A.2d 318 (Pa. Commw. Ct. 1976)
422. Cox v. Twp. of New Sewickley, 284 A.2d 829 (Pa. Commw. Ct. 1971).
423. See, e.g., County of Fayette v. Holman, 315 A.2d 335 (Pa. Commw. Ct. 1973)
424. Campbell v. Hughes, 298 A.2d 690 (Pa. Commw. Ct. 1972).
425. See Bilbar Constr. Co. v. Bd. of Adjustment of Easttown Twp., 141 A.2d 851 (Pa. 1958).
426. See Appeal of Girsh, 263 A.2d 395 (Pa. 1970).
427. Bufford, supra note 2, at 160.
428. Redev. Auth. of Oil City v. Woodrin, 445 A.2d 724 (Pa. 1982).
429. United Artists' Theater Circuit, Inc. v. City of Philadelphia, 635 A.2d 612 (Pa. 1993). The court based its decision on the Environmental Rights Amendment, Pa. Const. art. I, § 27 (adopted May 18, 1971), which provided for a citizen's "right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment."
430. Pittsburgh Historical Review Comm'n v. Weinberg, 676 A.2d 207 (Pa. 1996).
431. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).
432. J.B. Steven, Inc. v. Council of Edgewood, 657 A.2d 1355 (Pa. Commw. Ct. 1995).
433. Lombardozzi v. Millcreek Twp. Zoning Hearing Bd., 829 A.2d 779 (Pa. Commw. Ct. 2003)
434. see also Berman v. Bd. of Coram. of Lower Merion, 608 A.2d 585 (Pa. Commw. Ct. 1992).
435. Providence v. Stephens, 133 A. 614 (R.I. 1926).
436. Gabriele v. Rocchio, P.C. 93-1578, 1994 R.I. Super. LEXIS 104 (R.I. Super. Ct. Jan. 21, 1994).
437. Satti v. Fine, C.A. PC 95-4199, 1996 R.I. Super. LEXIS 28 (R.I. Super. Ct. Feb. 13, 1996). Another case dealing with a zoning board decision that a Rhode Island superior court found to be invalid because of its reliance on aesthetics alone is The Cove Haven Marina Corp. v. Zoning Board of Review of the Town of Portsmouth, C.A. No. N96-252, 1999 R.I. Super. LEXIS 36 (R.I. Super. Ct. Nov. 17, 1999).
438. Knapp Video, Inc. v. Zoning Bd. of Review of Barrington, C.A. No. 95-2367, 1996 R.I. Super. LEXIS 69 (R.I. Super. Ct. Sept. 24, 1996).
439. See, e.g., Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984).
440. Knapp, 1996 R.I. Super. LEXIS 69, at *9.
441. Spann v. City of Dallas, 235 S.W. 513 (Tex. 1921).
442. City of Houston v. Johnny Frank's Auto Parts, 480 S.W.2d 774 (Tex. Civ. App. 1972).
443. Continental Oil Co. v. City of Wichita Falls, 42 S.W. 2d 236 (Tex. Comm'n App. 1931).
444. City of Texarkana v. Mabry, 94 S.W.2d 871 (Tex. Civ. App. 1936).
445. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998).
446. Id. (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978);
447. Vill. of Belle Terre v. Boraas, 416 U.S. l (1974)
448. Berman v. Parker, 348 U.S. 26 (1954)
449. Euclid v. Ambler Realty, 272 U.S. 365 (1926)).
450. Texas Dep't of Transp. v. Barber, 111 S.W.3d 86 (Tex. 2003). A Texas lower court has also supported this position on aesthetics in a billboard case.
451. See Eller Media Co. v. Houston, 101 S.W.3d 668 (Tex. App. 2003), which dealt with the city's sign control ordinance.
452. Bd. of Supervisors v. Rowe, 216 S.E.2d 199 (Va. 1975).
453. Id. at 213.
454. Kenyon Peck, Inc. v. Kennedy, 168 S.E.2d 117 (Va. 1969).
455. Duke v. County of Pulaski, 247 S.E.2d 824 (Va. 1978).
456. Allstate Dev. Corp. v. City of Chesapeake, 12 Va. Cir. 389 (Va. Cir. Ct. 1988).
457. See, e.g., in dicta: Portage Bay-Roanoke Park Community Council v. The Shorelines Hearing Board, 593 P.2d 151 (Wash. 1979)
458. Duckworth v. The City of Bonney Lake, 586 P.2d 860 (Wash. 1978)
459. Lenci v. The City of Seattle, 388 P.2d 926 (Wash. 1964)
460. Mathewson v. Primeau, 395 P.2d 183 (Wash. 1964).
461. See Polygon Corp. v. City of Seattle, 578 P.2d 1309 (Wash. 1978)
462. Dep't of Ecology v. Pacesetter Constr. Co., 571 P.2d 196 (Wash. 1977).
463. Markham Adver. Co. v. State, 439 P.2d 248 (Wash. 1968).
464. State v. Lotze, 593 P.2d 811 (Wash. 1979).
465. First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992).
466. Id. at 185.
467. Collier v. City of Tacoma, 854 P.2d 1046 (Wash. 1993).
468. Munns v. Martin, 930 P.2d 318 (Wash. 1997). For another case where the court ruled that aesthetics combined with other factors did not constitute a compelling government interest,
469. see First United Methodist Church v. Hearing Examiner for the Seattle Landmarks Preservation Bd., 916 P.2d 374 (Wash. 1996).
470. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978).
471. Kitsap County v. Mattress Outlet, 104 P.3d 1280 (Wash. 2005)
472. see also City of Seattle v. Mighty Movers, Inc., 96 P.3d 979 (Wash. 2004).
473. Id. at 1284.
474. U.S. Census Bureau, American FactFinder, http://factfinder.census.gov/ home/saff/main.html?∧ng=en (last visited Jan. 21, 2006).
475. CNN.com Election 2004, http://www.cnn.com/ELECTION/2004/pages/results/ president (last visited Jan. 21, 2006).