David and Diane Williams thought they were doing everything right. They wanted to build a new duplex on property they own in a residential neighborhood of Tiburon, California. Their application to the town's Board of Adjustments and Design Review met all technical requirements of the local building and zoning codes. But despite numerous revisions to meet board objections, their application was denied because of concerns about the project's appearance.
Evidently the Williamses had failed to design a home that was "harmonious" with the surrounding area but not "monotonous," as the guidelines require. Such a failure was surprising because the Williamses' final architect was not only a former chairman of the review board, he had written those guidelines himself.
The Williamses' plight is not an anomaly. Over the past 10 years, architectural appearance review has become an integral part of the local development process, says their lawyer, Nicolas Morgan. But purely aesthetic guidelines may not jibe with constitutional guarantees of due process and free expression, he suggests. Morgan will cite several recent cases as precedent when the Williamses go to court this fall.
In one case, Bruce Anderson had decided to build a small retail building on his property in Issiquah, Washington. After Anderson had invested a quarter of a million dollars in design costs, the city rejected his plans because the building did "not create the same feeling as the building environment around [the] site." This environment consisted of a gas station across the street, with two more gas stations, a bank building, an auto repair shop, a box-like Elk's hall, and the city's Victorian-style visitors center in view.
Particularly displeasing to local authorities was Anderson's alleged violation of the local building code which reads, "Colors shall be harmonious, with bright or brilliant colors used only for minimal accent." Anderson thought facing the building in off-white stucco was in keeping with such a guideline, but he willingly changed the color to Cape Cod gray to please commission members. Then they demanded a review of the trim color: "Tahoe blue may be too dark."
Anderson repeatedly altered his building plans, changing colors and design elements to suit the tastes of the commission members. But his efforts, like the Williamses', were to no avail.
In May 1993, however, the Washington Court of Appeals ruled that Issiquah's ordinance was so vague that it let the commission decide based on "whim, caprice, or subjective consideration." Thus, it violated the Due Process Clause of the Fourth Amendment. The court ordered that Anderson be allowed to build his building.
Morgan says aesthetic guidelines may also violate First Amendment protections. In a June 14 decision, the U.S. Supreme Court struck down a local ordinance in Ladue, Missouri, banning the display of signs on private residential property. Like the Tiburon and Issiquah laws, Ladue's ordinance was intended to prevent "ugliness, visual blight and clutter" while protecting the "special ambience of the community." In overturning the law, the Court noted that a "special respect for individual liberty in the home has long been part of our culture and our law," and voiced its concern with "laws that foreclose an entire medium of expression."
The Williamses argue that architectural design should be protected medium of expression, and the court may agree. In a preliminary review of the Williams case, a judge observed that the city had offered "no reason why a unique architectural design, expressing [the homeowner's] 'personal views and attitudes,' is not as worthy of First Amendment protection as 'live nude dancing.'"