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18 Aesthetics, Community Character, and the Law
<br /> The Maher case, mentioned above, also included an alleged taking
<br /> claims In that case, a property owner wished to demolish a small bunga-
<br /> low in the historic Vieux Carre district in New Orleans and replace it with
<br /> an apartment building. The local preservation ordinance forbade the de-
<br /> molition, and the owner sued, claiming, in part, that the ordinance de-
<br /> prived the property of all economic value. The U.S. Fifth Circuit Court
<br /> held that the ordinance did not constitute a taking:
<br /> Nor did Maher demonstrate to the satisfaction of the district court that
<br /> .. the ordinance so diminished the property value as to leave Maher,
<br /> in effect,nothing.In particular,Maher did not show that the sale of the
<br /> property was impracticable,that commercial rental could not provide
<br /> a reasonable rate of return,or that other potential use of the property
<br /> was foreclosed.(at 1066)9
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<br /> Because of the substantial legal and practical difficulties faced by prop-
<br /> erty owners in establishing that a regulatory taking has occurred, the tak-
<br /> ing issue is not as serious a legal concern in the design review context as
<br /> the setting of adequate review standards.Nevertheless,planners and local
<br /> officials should keep the takings issue in mind when drafting and enforc-
<br /> No longer content to regulate ing design review programs in historic areas,always considering whether
<br /> traditional zoning aspects of the regulations they draft may someday go too far and subject them to a
<br /> development such as bulk, court challenge.
<br /> setbacks,and the like,
<br /> communities throughout the DESIGN REVIEW OUTSIDE HISTORIC AREAS
<br /> country,both small and large,
<br /> The increasing dissatisfaction with the appearance of new buildings and
<br /> are demanding a greater say
<br /> about height,architectural their relationship to surrounding structures and neighborhoods is mani-
<br /> styles,building orientation, fest in the growing number of design review ordinances applicable outside
<br /> and many other aesthetic historic districts. No longer content to regulate traditional zoning aspects
<br /> aspects of all new projects. of development such as bulk,setbacks,and the like,communities through-
<br /> out the country,both small and large, are demanding a greater say about
<br /> height,architectural styles,building orientation,and many other aesthetic
<br /> aspects of all new projects.
<br /> Initially,this concern over better design was most prevalent in exclusive
<br /> suburban communities, such as Santa Barbara, California, and Fox Point,
<br /> Wisconsin, that capture a distinctive architectural style or atmosphere.
<br /> One of the earliest ordinances was passed by West Palm Beach,Florida,in
<br /> the mid-1940s, followed by a similar ordinance in Santa Barbara in 1949.
<br /> Court review of such regulations soon followed.
<br /> Mme;.
<br /> The West Palm Beach ordinance was struck down in 1947 on the
<br /> grounds that it bore no relationship to the promotion of public goals (a
<br /> later decision in Florida,however,would make clear that aesthetic consid-
<br /> erations alone are a proper basis for police power regulations). But, with
<br /> the Supreme Court's pronouncements in favor of aesthetic regulation in
<br /> the celebrated Berman v. Parker case in 1954, state courts began to uphold
<br /> design review ordinances. Thus, a 1946 law enacted by the village of Fox
<br /> Point,Wisconsin,near Milwaukee, that required new construction"not to
<br /> be so at variance with" the exterior appearance of existing structures so as
<br /> to depreciate property values, was upheld by the Wisconsin Supreme
<br /> Court in 1955 (see discussion below). Berman was cited as controlling
<br /> precedent in that decision.
<br /> By the 1970s,many communities that exhibited a variety of architectural
<br /> styles and characters got into the act.So-called "appearance codes" prolif-
<br /> erated,and today a multitude of design review-related efforts are in place
<br /> in jurisdictions both large and small across the country. While the bulk of
<br /> these efforts have been initiated by the public sector, the private sector also
<br /> has been deeply involved in this movement in some important ways. For
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