The Dark Side of Land Use Restrictions

     Residential land use restrictions are part of life in most areas in the United States.  There may be land-use restrictions regarding “building height, architectural styles, materials, orientation, view preservation” [1] and even the color of your home. [2] These restrictions may have benefits, to essentially assure quality homes are being built as well as maintain property values by preventing doublewides from being built next to mansions.  However, what happens when these restrictions go too far?  For example, the government may reject a landowner’s building plan not because it fails to meet the technical requirements of local building and zoning codes, but because the board simply does not like what the structure will look like. [3]   Along more disturbing lines, land use restrictions can (and have) made it difficult for hundreds of natural disaster victims to construct decent temporary housing. [4] Welcome to this, the dark side of land-use restrictions. 

     While one could discuss a variety of potential problems regarding land use restrictions, the issue of aesthetic restrictions will be the focus here.  David and Diane Williams decided to build a duplex in a residential area of California. [5] While they were very careful to plan their facility just right, so as to make it past the local review board, the proposal was denied due to how the facility was proposed to look. [6]  The guidelines stated that the structure must not be “monotonous” but must also be “harmonious” with the rest of the neighborhood.  [7]  This guideline is vague and subjective, especially considering that the Williams’ architect wrote these guidelines himself when he was the chairman of the local review board, and yet was not able to meet his own restrictions. [8]  Such a result indicates a real flaw in the system: it is inefficient for landowners to spend their resources and time on a plan that may or may not get past the review board.  Predictability is key, and this feature is obviously lacking in some local review boards. 
      Beyond this issue of inefficiency, there are possible first amendment rights at stake.  The Williams’ lawyer suggests that “purely aesthetic guidelines may not jibe with constitutional guarantees of due process and free expression.” [9] Courts have long recognized a special interest in the home as opposed to other properties, which may afford them more freedom of expression.  A judge in Williams’ case noted that there is “no reason why a uniquely architectural design, expressing [the homeowner’s] personal views and attitudes, is not as worthy of First Amendment protection as ‘live nude dancing.’” [10]  Since architecture is a distinct and recognized form of art, and art is among those areas protected by the first amendment, perhaps aesthetic guidelines which are certainly vague and subjective should be eliminated.  The individual landowner’s preferences, as well as the private covenants in place, should take priority.
      More broadly, property rights are infringed upon when these kinds of land use restrictions go into effect.  When a landowner is told that they can’t create a structure on their land that looks a certain way, a small part of their bundle of rights has been taken away.  However, property rights are not absolute. [11]  As long as the government leaves you with some economically viable use of your land and does not reduce it’s value to virtually zero, the land use restrictions are generally valid and legal.  [12]  While takings will not be discussed in depth here, it should be noted that these restrictions are in some cases extremely limiting, and may be worthy of just compensation though in all likelihood, courts would favor the government’s right to enforce such restrictions.  
     Land use restrictions are perhaps an important societal and governmental tool which can help to maintain or dramatically increase the value of land. [13]  However, flexibility must be built into that system to assure that exceptions can be made when the situation calls for it.  Perhaps local governments should forgo involvement and leave these kinds of restrictions and limitations up to private covenants which would then be enforced by private neighborhoods and the courts if need be.  At the very least, local review boards should be required to maintain a set of easy to read and, most importantly, easy to follow guidelines.  Architects and landowners should not be made to guess whether the architectural plan they put time and money into will or will not pass muster with local review boards.

[1] Steven B. McBride, Site Planning and Design, The Web Book of Regional Science, West Virginia University, http://www.rri.wvu.edu/WebBook/McBride/main.html.

[2] Robert Pollock, Architectural Correctness? – Restrictions on Architectural Design, REASON, Oct. 1994, available at http://www.findarticles.com/p/articles/mi_m1568/is_n5_v26/ai_16101031.

[3] Id.

[4] FEMA: Land Use Restrictions Delay Placement of Temporary Homes for [Katrina Victims], THE DAILY RECORD (Baltimore), Dec. 22, 2005, available athttp://www.findarticles.com/p/articles/mi_qn4183/is_20051222/ai_n15964264.

[5] See Pollock, supra note 2.

[6]  Id.

[7]  Id.

[8]  Id.

[9]  Id.

[10]  Id.

[11] National Trust's State and Local Policy Program for the National Trust for Historic Preservation,Understanding Property Rights, Cardi Toolboxhttp://www.cdtoolbox.net/government_policies/000208.html (last visited Apr. 8, 2007).

[12]  Id.

[13]  Id.

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