Beauty Is In The Eye Of The Beholder – And In The Eye Of The Planning Board

By: W. Bradley Hunt

Sometimes a planning or zoning board objects to a project based on how it looks. Aesthetic issues that come up in site plan, subdivision, or variance review may include the size and shape of a building, the materials used for a project, or even the color of a building or sign. The question often arises whether it is proper for a zoning board to deny approval, or to condition approval, based on such aesthetic concerns.

The answer: it depends. The law is clear that, in appropriate circumstances, a municipality may regulate aesthetic aspects of projects. The New York Court of Appeals has explained that “examples of ugliness . . . are just as much subject to reasonable controls, including prohibition, as enterprises which emit offensive noises, odors, or debris. The eye is entitled to as much recognition as the other senses . . . .” Cromwell v. Farrier, 19 N.Y.2d 263, 272 (1967). But a zoning board does not have unlimited discretion to disapprove a project simply because the board dislikes how it looks.

The general rule: if a zoning board wants to disapprove or limit a project based on an aesthetic issue, the board should point to a specific standard – from the zoning law, or the municipal comprehensive plan, or the design guidelines that have been adopted by the municipality – as the basis for its action. Where there is no standard on which the board may rely, courts will strike down a municipal decision denying an application. For example, in the case DeCena v. Board of Zoning Appeals of the Incorporated Village of Hempstead, the zoning board denied an area variance for a narrow house that the board deemed an “aesthetic abomination” with a “bowling alley appearance.” 45 N.Y.2d 105, 108 (1978). The New York Court of Appeals struck down this decision because the zoning law did not give the zoning board power “to deny an area variance on aesthetic grounds.” Id. at 109.

In addition, when a zoning board disapproves a project for aesthetic reasons, the board should demonstrate that the aesthetic issue is more than a mere matter of preference, and in fact relates to the general welfare of the community. The board should show that “the offense to the eye” is “substantial,” with a “material effect on the community or district pattern.” Cromwell, 19 N.Y.2d at 272. In the case Sackson v. Zimmerman, 103 A.D.2d 843 (2nd Dept. 1984), the court struck down a planning board’s denial of a subdivision application that sought to divide a large estate with a mansion in the middle. The court reasoned that: “the planning board’s denial must be based on evidence more substantial than a generalized feeling that neighbors should have the aesthetic pleasure of viewing a mansion on the central portion of a lot some four times the size of their own.” Id. at 844.

If a zoning board follows these general principles, it has broad authority to condition or deny applications on aesthetic grounds. Indeed, courts have upheld zoning laws giving municipal boards power to regulate aesthetic matters such as the color of signs (Lisa’s Party City v. Town of Henrietta, 2 F.Supp.2d 378 (W.D.N.Y. 1998)), and the placement of clotheslines in yards (People v. Stover, 12 N.Y.2d 462 (1963)).


Tags: , ,