Your client is a housing developer who wants to build a subdivision of 26 homes. He learned he must get design approval from the city’s Architectural Review Commission. He has many architectural designs for his homes that local architects created, but a preliminary discussion with the commission indicates that it will only accept some of them. He likes his architectural designs because he markets them successfully and does not want to change them. He asks for your advice.
Architectural design review supplements other land use regulations, like zoning. An architectural design ordinance provides for the appointment of an architectural design review commission. It considers design proposals for new buildings in a review process that applies design standards specified in the ordinance. Your client may have to change his designs to get them approved.
Appearance codes are early architectural design ordinances. They often require look-alike designs so that new architectural designs look like those of existing structures in the surrounding area. This compatibility requirement prevents design innovation by requiring conformity and is exclusionary in upscale residential areas. An anti-look-alike standard does just the opposite. It requires architectural designs that do not resemble neighboring structures’ designs. Your client’s designs may not meet these requirements.
Detailed and specific design standards are an alternative to appearance codes. They can cover various design issues, such as materials, orientation, and façade, and specify design standards for alternative building variations, substantially different roof types, elevation plane variations, and exterior surface distinctions. If they are not clear and objective, detailed design standards may give an architectural review commission the discretion to make unprincipled decisions.
Case law on architectural design review is limited and troublesome. A group of early cases dominates. Most arose in upper-income residential suburbs with upscale development, where look-alike requirements create exclusion.
State ex. rel. Stoyanoff v. Berkeley, 458 S.W.2d 305 (Mo. 1970), is a typical early case. The court blatantly upheld the Architectural Board’s rejection under a look-alike ordinance of a contemporary residence in an affluent Saint Louis suburb that was a pyramid structure with a flat rooftop and triangular-shaped windows or doors at one or more corners. (It had won an architectural award.) The court applied the rule courts followed at the time, that “the aesthetic factor to be taken into account by the Architectural Board is not to be considered alone” because the commission also should consider “the effect that the proposed residence would have upon the property values in the area.” Most courts today hold that aesthetics alone can be the basis for aesthetic design standards.
Statutory authority can be a problem because the model Standard State Zoning Enabling Act, which most states adopted, does not authorize architectural design review. The Stoyanoff case held that the state zoning statute, based on the Standard Act, conferred implied authority because architectural design review protects property values. This purpose is a zoning purpose authorized by the Standard Act.
Constitutional free speech protection of architectural design review began when the US Supreme Court held in 1976 that commercial speech is protected free speech. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976). Architectural design can be expressive conduct protected as nonverbal commercial speech when it conveys an architectural message. Free speech protection is a much-debated and important issue. Architectural design ordinances are more difficult to uphold if the residential design is protected as free speech because courts apply a higher standard of judicial review than the reasonably debatable standard applied to social and economic legislation. Burns v. Town of Palm Beach, 999 F.3d 1317 (11th Cir. 2021), cert. denied, 142 S. Ct. 1361 (2022), is the first case to consider this issue and rejected the free speech argument.
Palm Beach, Florida, is an upscale residential community. Burns planned to replace an existing 10,063-square-foot mansion on the Atlantic oceanfront with a 25,198-square-foot mansion in the midcentury modern design, reduced to 19,594 square feet after neighbor opposition. He said his design would be “a means of communication and expression of the person inside: Me.” He chose an international or midcentury modern architectural design because it emphasized simple lines, minimal decorative elements, and open spaces built of solid, quality materials. A limestone wall with a louvered gate and heavy landscaping, including a 16-to-18-foot-tall hedge and a large specimen of trees, would protect the house from view from a public road. Burns needed architectural design approval for his mansion from the Town of Palm Beach Architectural Review Commission because all applications for demolition and construction require a building permit from the commission except for minor changes and changes to historic buildings.
The architectural design review ordinance had detailed look-alike architectural design standards. A proposed building or structure could not be excessively dissimilar to any existing structure within 200 feet of the proposed site as measured by ten exterior design and appearance features. The features included “Architectural compatibility,” arrangement of the structural components, “Appearance of mass from the street or from any perspective visible to the public or adjoining property owners,” and “Diversity of design that is complementary with size and massing of adjacent properties.” The Architectural Review Commission denied Burns a building permit because it found that his mansion was not in harmony with proposed developments on land in the general area and was excessively dissimilar to other homes within 200 feet in terms of its architecture, arrangement, mass, and size.
Burns did not appeal the denial to issue a building permit. He sued in federal court and argued that the design standards in the ordinance violated his free speech rights because his mansion was expressive free speech conduct. The court applied the test for expressive conduct adopted by the US Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989), and disagreed. This test asks (1) whether an “intent to convey a particularized message was present” and (2) whether “the likelihood was great that the message would be understood by those who viewed it.” When applying the second factor, a court must ask whether a reasonable person would interpret the conduct as some sort of message, not whether an observer would necessarily infer a specific message.
Palm Beach conceded that there was an intent to convey a message, but the appeals court held that the residential design did not have free speech protection because its expressive elements were carefully shielded from public view. The court nevertheless considered whether the residential design was expressive conduct protected as free speech. It applied five contextual factors the court adopted in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235 (11th Cir. 2018), to decide whether there was a great likelihood that some sort of message would be understood by those who viewed the mansion. It concluded that a viewer would not comprehend that Burns’s residential design conveyed a message even if the proposed mansion could be seen. A reasonable observer would view the mansion as a massive house, not an expression of a message.
The court explained that the Burns’s mansion was only a private oceanfront residence surrounded by lush greenery on a quiet residential street. Burns had no plans to set up tables, distribute literature, or hang a banner in front of his mansion. He did not give tours or hand out informational brochures on the mansion’s design elements; there was no evidence that the house would be open to everyone or that Burns had invited the public to view his architectural design. It was not a traditional public forum. “To the reasonable observer, it is nothing more than another big beachfront home.”
The evidence did not show that residential midcentury modern architecture was the town’s public concern or that residential architecture had historically been used to convey a message. There was no “evidence that residential architecture, specifically, has a historical association with communicative elements that would put a reasonable observer on notice of a message from Burns’s house.” Although the Burns case is limited to its facts, the decision makes it difficult to protect residential architecture as free speech.
Architectural design review must not be void for vagueness. This substantive due process doctrine holds that a law is not void for vagueness if regulated parties know what the law requires of them so they can act accordingly and if persons who enforce the law cannot act in an arbitrary or discriminatory way. Architectural design standards often are too ambiguous and thus may fail the void-for-vagueness requirement. Early cases are mixed on this issue, with most cases rejecting the void-for-vagueness argument, and the issue has been dormant.
The court in the Burns case held that the Palm Beach look-alike architectural design standards in the Palm Beach ordinance were not void for vagueness. It upheld the ordinance because it required the Architectural Review Commission to consider ten design criteria when it reviewed an architectural design for approval and because the “excessively dissimilar” standard was geographically limited. The court was impressed both that the commission included architects and other members “special qualified” in relevant professions or who had the “civic interest and sound judgment” necessary to consider the design standards and that the town council had the power to review arbitrary commission decisions. Architects usually serve on architectural review commissions.
Architectural design review needs reform. Clear architectural design review standards are necessary. A Washington statute adopted in 2023 requires that the design review process must have “clear and objective development regulations governing the exterior design of new development” and “one or more ascertainable guideline, standard, or criterion by which an applicant can determine whether a given building design is permissible under that development regulation.” Wash. Rev. Code § 36.70A.630(2).
Statutes must also regulate the content of architectural design standards because they can increase housing costs and the design review process because it can cause unreasonable delays. A statute should provide that “Design standards shall not have the effect, either individually or cumulatively, of prohibiting or discouraging residential housing, including multifamily and manufactured housing, through unreasonable cost or delay.”
Another problem is that an architectural review commission can cause problems for a proposed development by requiring more restrictive regulations than required by the zoning ordinance. The Washington statute prohibits this strategy by stating that the design review process “May not result in a reduction in density, height, bulk, or scale below the generally applicable development regulations for a development proposal in the applicable zone.” Id. § 36.70A.630(2)(b).
For a discussion of design standards for planned developments, see my book, Designing Planned Communities (2010), tinyurl.com/code3820.
