A Public Arbiter of Good Design

By Roger K. Lewis
Saturday, January 5, 2008

Most jurisdictions sidestep aesthetic considerations when reviewing construction-permit applications. Rarely must an owner or developer demonstrate that a project's design has merit. Ugliness is not grounds for denying a building permit.

Projects typically have to comply only with zoning and building codes. Zoning governs allowable land use, density, height, setbacks, open space and parking. Building codes focus on design and construction as they affect structural stability, comfort, safety and environmental impact.

It's easy to understand why jurisdictions avoid aesthetic evaluation of new buildings. Public officials, as well as many developers and architects, are uncomfortable with the subjectivity.

What should a community's aesthetic standards be, they would ask? How can beauty be measured? Who is to say -- and why -- that brick is better than stucco, that one window pattern looks better than another, that a facade is poorly composed or that proportions are visually awkward?

How can you tell architects and their clients that a project, while meeting all legal requirements, would be detrimental to its site and neighborhood?

Zoning and building codes have long been accepted as legitimate uses of government's power to protect public health, safety and welfare, even if they infringe on private property rights. But is there any legal justification for regulating aesthetics? What health, safety and welfare issues arise when a property owner is deciding between red or blue paint, or between flat and curved walls?

Yet there is ample precedent for treating aesthetics as a matter of legitimate public interest subject to reasonable regulation. Courts have upheld challenges when regulation is based on achieving clearly articulated public purposes, when evaluation criteria are not arbitrary and capricious, and when the process of design review has been carried out fairly, consistently and transparently.

For example, protection of aesthetic as well as cultural values is a fundamental justification for historic-preservation laws. Many places have review boards empowered to make aesthetic judgments about design proposals that affect the appearance of historically designated properties and neighborhoods.

It's regrettable, but there's frequently little discussion about the quality of new architecture. This is why, despite onerous land-use and construction regulations crafted mostly by lawyers and planners, there are so many mediocre and outright unattractive new buildings.

Jurisdictions unwilling to address aesthetics head-on need to change their attitude. Doing so is desirable and legally feasible, and it can substantially enhance the resulting projects.

Yet institutionalizing an effective design-review process entails challenges.

The first is political. Design review is ineffective without legal backing. Thus, elected officials and their constituents must be convinced that making aesthetic judgments is a good idea and that it would improve the built environment without encumbering the permit process.

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