ABSTRACT
This paper maintains that court decisions on board review of architectural design invariably violate the Rule of Law requiring fair predictability in the exercise of the police power. Conversely, other decisions requiring explicit standards to regulate architectural aesthetics would only impede and confine design creativity. As an alternative to unfettered board discretion on one hand or restrictive design standards on the other --- both of which infringe on the constitutional right of free expression --- the author argues that the solution lies in administrative and procedural reform of the review process. Such reform should allow for peremptory challenges to forestall possible biases in board membership, should require that boards issue written opinions to assure their accountability and to guard against arbitrary decision-making, and should provide for documentation of past board decisions and opinions. Following the tradition of case law, such a record of precedent board decisions would serve as generalizations and hypotheticals to guide both applicants on their design proposals and boards in their adjudication. Court oversight of board decisions should properly be confined to a check for illegalities or arbitrariness, rather than engage in ~ !lQYQ review of design to avoid introducing new improprieties with no provision for review. Finally, the paper reiterates an admonishment by Supreme court Justice William Brennan that aesthetic regulation would violate the First Amendment unless premised on a "substantial," "comprehensive coordinated effon" and community "commitment" (such as an urban design plan) which can "demonstrate" the purpose and goal of design review in the first place.
