Plaintiff was denied a building permit solely on the ground that the village building board, composed of two architects and one other person, had failed to make a finding, as required by ordinance, that the “exterior architectural appeal and functional plan” of the proposed building would not be so at variance with other structures in the neighborhood as to substantially reduce property values. The trial court held the provision of the ordinance requiring the determination to be invalid and issued a peremptory writ of mandamus directing the building inspector to issue the permit, notwithstanding the decision of the board. Held: reversed.
The ordinance was a valid exercise of the police power and was not so indefinite as to subject the applicant to the arbitrary discretion or caprice of the building board. This decision may well mark a new trend of open acceptance of aesthetic considerations as a valid basis for exercise of the police power. The restriction here is not upon the use of the property but upon its appearance. The decision thus marks a departure from the generally accepted rule that aesthetic considerations are not, of themselves, a valid basis for the exercise of the police power. Courts have recognized that the protection of property values is an end at which restrictions on the use of property are aimed. However, under the established view that aesthetic controls are based on individual taste and are thus indefinite, that end of itself had not been held adequate to justify restrictions on the appearance of property.
W. D. Lorensen,
Municipal Corporations—Aesthetic Zoning under the Police Power,
35 Neb. L. Rev. 143
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