34outofthecloset.pdf

Aesthetic

Zoning

as

Visual

Resource

Management

David

J.L. Blatt

DavidJ.L.Blattisa Master's candidateintheDepartment ofCityand Regional Plan-ning at the University of North Carolina at Chapel

Hill, majoring in LandUse

and Environmental Plan-ning. He received a Juris

DoctorateDegreefromYale Universityin1985.

The North

Carolina

Supreme Court

has recently endorsedthe

view

that aestheticsalone isa proper basis on

for theexerciseofpolice

power

incoastalcommunities. Still, ifcertain regulatory precautions are nottaken,

tic

itispossible thatimportantscenicresourceswillremainunprotected. This investigationprovidesatheoret- zo

ical defense for broadening

and

systematizing the application ofaesthetic zoning techniques. ae: thi

The

North

Carolina coast isa special place. Its distinctiveregionalcharacterisasource of pride

and

identityforlocal residents

and

fortheentirestate.

The

coast containsunique economic, cultural, his-toric, environmental,

and

recreational resourcesof

tremendous

value,

and

these values have received

legislative recognition

under

the Coastal

Area

Management

Actof1974.

However,

CAM

As

two-pronged

approach

ofstatesupervision oflocalland

useplans,withdesignationofAreasof

Environmen-tal

Concern

for direct stateregulation, couldallow

some

important coastal values to fall through the

regulatory cracks.

For coastal residents

and

others concerned with

protecting theuniquescenicresources of thecoast,

two

very different disciplines offer guidance: the

legaldoctrines of aesthetic zoning,

and

the visual resource

and

analysis techniques of the landscape

architecture

and

environmentaldesign professions. Aestheticzoningconcepts, paradigmaticallyapplied

to restrictjunkyards

and

billboards, havealong

and

well-recognized pedigree,

and

the

North

Carolina

Supreme

Court has recentlyendorsedthemajority

view

that aestheticsalone isa properbasis for the

exerciseofthe policepower.

Though

aesthetic

zon-ing is

now

established legal doctrine in

North

Carolina as in

most

otherplaces, it remains

prob-lematic,

undermined by

the lack of a consistent

theoretical foundation.

Visual resource

management

and

landscape

analysis,

by

contrast, are long

on

theory butshort

on

operationalization

and

implementation.

Many

studies have attempted to design inventory and

classificationsystemsforscenicresources, tocreate

indices of visual quality,

and

to discern public

preferences fordifferent types of landscapes. None! of the classification systems or visual assessment

methods

have gaineduniversalacceptance, butthe|

essential concept of treating scenic landscapes as visualpublic resourcescanserveasthemissing foun dationfora systematic application ofaestheticzon ing techniques.

The

Aesthetic

Zoning Concept

Though

aestheticzoningis

now

outofthecloset in

North

Carolina

and

acceptedinprinciplebymost

state courts, it

may

not yet be out of the

woods

Legal

commentators

have continuedto criticizethe theoretical foundations of aestheticzoning, some-timesfor the

same

reasonsraised

by

theearlycourts:

the incoherence of aesthetics as a substantive due

process goalofthe policepower, the subjectivityand

lack ofprocedural

due

process in regulatorystan dards,

and

potential conflictswithFirst

Amendment

rights of free expression.1

Though

"aesthetics" is recognized as a valid

regulatoryobjective, caselawmerelystates,but does

not satisfactorily explain, the public's substantive

zor the zon isb

roo

tior vist tior

him

visi

due

process interest in beauty. "Proponents of

aestheticzoninghavedifficultydefiningthe precise

nature ofthe interestthey are protecting

and

theevil

they are seekingto address. Lacking sucha

defini-tiontheyhave tendedtodefendaestheticzoning

or-dinances

on

the grounds that aestheticregulations

help preservepropertyvalues,

promote

tourism,

and

prevent destruction of interesting neighborhoods,

historicsites,

and

scenic areas."2

_The

elusivenature of the

harm

aestheticzoning

aimed

toputright

was

a

major

reason

why

aesthetics

had

difficulty

estab-lishingitsconstitutionalityinthefirstplace.3_Unlike

the physical, tangible nuisances

and

externalities

which

originallyjustifiedzoningregulation, visually

unattractive

development

has

no

palpableill effect

on

the

community,

butissolelya matterof percep-tion(socialor individual). Consequently, aesthetic

zoning advocates

must

fall

back

on arguments

that

aesthetic surroundings, like art, are valuable for their

own

sake

and

need

no

corollaryjustification.4

Courts

seem

to implicitly accept assertions that

aesthetic regulation has a positive effect

on

the general welfare, thusbegging the question of

how

legislaturescandefine thepublicinterestinaesthetics

and

how

far thepolice

power

cango in regulating

visualappearance.

An

easyansweristhatthepublic

aesthetic interest might besupplied simply

by

the preferences of the public, as enacted

by

the

legis-lature—a sort of "reasonable

man"

standard of

community

aesthetic consensus. Junkyards

and

billboardsarethe bestexamples, sinceeveryonebut

theirownersfinds

them

distasteful,but serious

ques-tions arise

when

there is not a substantial degree

of social consensus.5

A

more

compellingjustificationforregulatingthe

visualenvironmenthasbeensuggested

by

Professor

JohnCostonis,

who

explainsatlengththat aesthetic

zoning(likehistoricpreservation)isnotreally

aes-thetic at all.6

The

traditional

approach

toaesthetic

zoning,

which

hetermsthe "visualbeauty"rationale,

isbankruptasaconstitutional justification for visual

regulation. Costonis instead suggests hat aesthetic

regulationisoftenimplicitly,

and

shouldbeopenly,

rootedin

"community

stability-identity"

considera-tions.7_According

tothistheory, the featuresofthe

visualenvironmentconvey bothcognitive

and

emo-tional

meanings

to the

community,

based

on

the functional

and

nonfunctional associations of the visualfeatures.8 _"By

virtue of itssemiotic

proper-ties, theenvironmentalsoplays asocially integrative

and, hence, identity-nurturingrole. . .therefore, the

environmentisavisual

commons

impregnated with

meanings

and

associationsthatfulfillindividual

and

group

needs for identity confirmation."9

Inotherwords, visualresources are not valuable as a source of beauty

—

concepts of beauty

and

ugliness are superfluous

—

but as a source of

com-munity

character

and

values

which

define a

home,

a neighborhood, a region. Planners

and

environ-mentaldesignershavelong

known

thatthe

environ-ment

affects behavior, for instance thatstreet

and

buildingconfiguration can discourage crime.10

Ac-cordingly, billboards

and

junkyards

do

notgenerate

hostility simply because they are ugly, or even

because of theiruses (functionalassociations), but

because theyconveythemessage(inanonfunctional association) thatthe surrounding

neighborhood

is

seedy, cheap,

and

unhealthy.

The

stability-identity

rationale alsoexplainsopposition to attractivebut

incongruous

modern

architecture,

and

the

preser-vation of historic but architecturally unpleasant

buildings.11

Furthermore, the frivolity

and

subjectivity

arguments

applied to the visual beauty

form

of aesthetic zoning are practically neutralized in the

community

identitycontext.Preserving

communi-ty identity, character,

and

stability is a significant

if

sometimes

elusive goal, pregnant with

implica-tions for individual mental well-being

and

com-munity

behavior patterns. Consequently,

when

visual resources can be identified as important to

a

community's

character

and

self-image, a local

government

would

befully justified

on

substantive

due

process

grounds

in regulating to protect these

visual resources. Secondly,sincethevisual

environ-ment by

definitionreflects

community

character

and

identity, there will necessarily be

some

consensus

on what

buildings, views,

and

landscapesought to

bepreserved,

though

the preciseelementsofvisual identity

mix

may

bedifficultto articulate in

words

orinlegal classifications.12Consequently,itshould

be possible to articulate concrete regulatory

stan-dardsrationally related to the goal of

community

identity.

In practice, the visual beauty

and

stability-identity rationales are often

commingled

as

alter-nate justifications, but

community

character is a

distinct concept, based

upon

a public

good

rather

than a nuisance/externality theory of the police

power

regulation.

Community

identityzoningseeks

to conserve the visual environment as a public

resource

and

to protect a

common

heritage, rather

than to restrict the unpleasant, uglyside effects of privatelanduse. Even

by

itself,the stability-identity

stability-identity

considerations

visualresourcesas

a source of

Waterfrontview protection.

rationale is

by

no

means

purely theoretical; there are

many

casesin

which

justificationsof

communi-tycharacter

and

quality oflifehave beenarticulated

as"corollary"toaesthetic values,sothat "aesthetics"

has

become

a surrogate for

community

character

factors, just asproperty values, health

and

safety,

and

tourismwereconsidered surrogatesfor aesthetic factors.Ifthe

community

stability-identity rationale

isa valid justificationforthe exerciseof the police

power

when

disguisedbehindthevisualbeauty ban-nerof aesthetic regulation,

community

characteris

more

emphatically constitutional

when

openly

proclaimed.

Though

the

community

stability-identity

ra-tionale is

more

logically satisfyingthan the visual

problems beauty approach, Professor Costonis still sees

seriousproblems withthis

form

ofaesthetic

regula-tion. Defining the nature of

community

character asappliedto individual visual featureswillstillbe

difficult,

and

theprocess ofdefinitionincludesrisks

that visual regulation will be used to advance the

narrow

interestsof

community

elitesorwill infringe

on

First

Amendment

rights offreeexpression. But

Costonis' analysis of aesthetic regulationdoes not

consider

how

the

community

character

and

iden-tityrationale appliestoa naturallandscapelikethe

North

Carolina coast. In the coastal context, the

landscape architecture

and

design techniques of

visualresource

management

can

answer

the

criti-cismsof aestheticzoning

and

providea

theoretical-ly

sound

justification for regulating the visual

environment

in thepublic interest.

Visual Resource

Management

and Impact Assessment

The

systematic study of visual

and

scenic

resources,

though

enjoying

many

literary

antece-dentssuchas

Thoreau

and

Aldo

Leopold,13 _began

to take shape with the

growth

of the

modern

en-vironmental

movement

inthe 1960s.

At

thattime,

many

people conceptualized the natural

environ-ment

in aesthetic or

amenity

terms,

and

many

environmental issues

and

controversiesfocused on

preservingspecificscenic landscapes.

The

National

EnvironmentalPolicyActof1969 (NEPA), withits

ringing resolve to "assure for all

Americans

safe, healthful, productive,

and

aesthetically

and

cul-turally pleasing surroundings,"14

_was

_{a frequent}

inspiration

and

provideda

mandate

toincludevisual

impact assessment in the environmental impact

analysis process applied to

managing government

lands

and

projects.15

Now

that environmentalism

and

environmental

concernshave

matured

tofocus primarily

on

human

health, ecological sustainability,

and

other func-tional,

non-amenity

problems,thelandscape archi-tecture

and

environmental design professionshave

refined the techniques

and

concepts of visual

resource

management

as a separate field.16

The

visualanalysisdisciplineshavenot yieldedany

stan-dard

method

to

measure

orevaluate scenic beauty,

though

several researchers have tried. But the in-sightsof visualresource

management,

likethe

com-munity

character/cultural stability rationale

form

of aestheticzoning, are

more

sophisticatedthana sim-ple definition of

what

isbeautiful

and

what

isugly.

Instead, visual resource

management

provides a

perspective

on

how

toregulate a public resource

—

the coastal landscape

—

by

answering important

questionsaboutthevisual

components

of

communi-tycharacter

and

identity. Broadlyspeaking,

we

can divide visual resource

management

methods

into

threecategories: an inventory

and

classification of

the visual featuresof a landscape, surveysof

land-scape perceptions

and

preferences

among

the

population,

and

visualimpactassessments offuture

development

alternatives.

Coastal Visual Resource Regulation

Aestheticzoning has alwaysbeen concernedwith regulating the privately built environment, while

visualresource

management

isorientedtoplanning

and

management

of public landscapes. Aesthetic zoning, even

when

explicitlydirectedatpreserving

theoreticalproblemsindescribing

what

community

character is

and

in isolating the visual elements

which

comprise it. Just as the courts

which

first

upheldaestheticzoning

on

the basis ofuntested

"cor-ollary justifications" of property values, tourism,

and

glittering generalities about

community

aes-theticsensibilities,

modern

courts

which

recognize the

community

character/identity impetus behind

visual regulation

must

still rely

on

purely

specu-lative assertions that the

measure

in question will

actuallyenhance

community

character

and

identi-ty.

By

using theinsightsof visualresource

manage-ment,legislators

who

enactvisualcontrolmeasures

and

courts

which

review

them no

longerneed

make

uninformed

assumptions. Visual resource

inven-tories, assessments of citizens' preferences

and

perceptions,

and

visual impact assessment provide

systematic

methods

to identify

and

safeguard the particular visual features

which

createa

communi-ty identity.

Visual resource

management

techniques,for their part, often

seem

to exist in a

vacuum

of purely

academicinterest, orinconsultants'plans

which

are

never implemented.

Much

work

in the field has

revolvedaroundthecontinuing refinementof

assess-ment, survey,

and

simulation techniques without

followingthrough

on any

concreteimplementation.

Ifvisual resource

management

ever aspirestohave

asignificantimpact

on

theeffectof private

develop-ment on

the coast or

any

other landscape, it

must

operate through thestrong

arm

and

long reach of thepolice power.

Granting the general usefulness of landscape

analysisinpolice

power

regulation, it

may

appear

thattherealutility ofvisual resource

management

methods

is in urban architectural controls

and

neighborhood

preservation, the currentfrontiers of aesthetic zoning.

At

first blush visual resource

management

seemsto

add no

dimensionsto regula-tion of the natural environment, especially the coastal area,

which

alreadyhas a well-established regulatory regime. In response, this paper argues

thatvisualresource

management

hasaplace

on

the coast for

two

basic reasons. First, specific visual regulation is necessary in areas like the

North

Carolinacoastbecausethe existing environmentally-orientedregulatorysystemisinadequatetoprotect

specificallyvisual resources; secondly,itisthecoast's

visual resources

which

are the primeingredient of theregion's social, economic,

and

cultural values.

The

firstproposition

means

thatpreservation of

scenic landscape resources is not necessarily

sub-sumed

under environmentalprotection.

Of

course,

much

environmental legislation does include an

amenity-aesthetic perspective,

and

this thread has been

woven

into the fabric of coastal legislation

from

NEPA

to theCoastal

Zone

Management

Act.

But aside

from

local sign ordinances

and

historic districts, thereis

no

specificvisuallandscape

regula-tion in the coastal area.

The

basic

framework

of

CAMA

doescontain pro-visions

which

might serve as the basis for scenic

landscape regulation.

The

section defining

state-regulated Areasof Environmental

Concern (AEC)

states that

AECs may

include "fragile or historic areas,

and

other areascontainingenvironmentalor natural resources of

more

than local significance,

where

uncontrolled or incompatible

development

could result in

major

or irreversible

damage

to

im-portanthistoric, cultural, scientific, orscenicvalues

ornatural systems."17

However,

theregulations

im-plementing this section

do

not directly address

"scenic values." Title

15.07H

.0500 of the

North

Carolina Administrative

Code

definesNatural

and

CulturalResource

AECs

toinclude coastal

complex

natural areas, uniquecoastal geologic formations,

significant coastal archeological resources,

and

significantcoastal historicarchitecturalresources.18

Thesecategoriesmight,butneed notnecessarily

in-clude areasofpurelyvisualappeal;inanycase,only

one

AEC

in thiscategory,an archeologicalsite, has

been designated.19

Under

the use standards for all natural/cultural

AECs, no development

permits

may

be granted unless the

development

is

found

tocause"no

major

orirreversible

damage

tothestatedvalues of a

par-ticularresource,"including, interalia,"Development

shall be consistent with the aesthetic values of a resource asidentified

by

the local

government

and

citizenry."20

As

the Hatteras Island study suggests,

the landscape values

and

perceptions oflocals

and

outsiders

may

differ,soitisrather bizarrethat local

residents should define the aesthetic values of a

scenicresource

which

must,

by

statutorydefinition,

beof extralocal significance. This peculiar contradic-tion indicates that little if

any

thought has been

devoted to the systematic regulation of visual

resources.

Despite the lackofregulationsspecificallytailored tosceniclandscapes,itisalsopossible that

CAMA's

other regulatory provisions, especiallythose

aimed

at safeguarding ecological processes

and

at

miti-gating theeffectsofnaturalhazards, might havea

cumulativeside effectofprotecting visual resources

state-regulated Areas

of Environmental

systematic study of

Coastal beauty.

as well. Since the scenic values of the coast are

predominantly natural, a

rough

visual resources

management

strategy

would

simply be to prevent

development

in scenic areas.

The

policy prescrip-tionsfor several othertypes of

AECs

—

to preserve the ecological integrityofwetlands, barrierislands, estuaries,

and beach

systems, ortoprotectlife

and

propertyinnaturalhazardareas, forinstance

—

also

involve restricting development. Consequently,

coastal visual resources might be protected as an

unintended "corollary benefit" of preserving a

natural site for non-visual reasons.

Separate treatment for visual regulation is nec-essaryfor

two

reasons.First, environmentalfeatures

which

serveimportantecologicalfunctions

may

not be perceived asaesthetically orvisuallyappealing.

Wetlands, withtheirpleasingenvironmental

conno-tations of diversity

and

fertility,

were

formerly

describedas

swamps,

withratherdifferent

connota-tions. In

Zube

and

McLaughlin's study of the

atti-tudes of VirginIslanders,theresidents'perceptions of

what

was

beautiful generally reflected

environ-mentalresources of ecological value,withthe

nota-bleexceptions ofsaltponds,

which

wereseenasugly

yet fulfilledimportantwildlifehabitat functions.21

Conversely,

and

more

importantly,ecological

fac-tors

do

not completelydictatetheappearanceofthe

visual environment. "In its purest form, aesthetic

| . v- '-U|

- rv

'<'/'-*•»,

regulationiscalled intobeing

by

thenonfunctional

association of resources.. .Nonaesthetic land use

and

environmental regulation in its purest form

dealswitharesource'sfunctions

and

itsfunctional

associations."22

_The

_{functional preservation}

of

naturalsystemsforhabitat preservation, ecological

protection, or hazard mitigation can set outer

bounds

on

thequantity orlevelof coastal

develop-ment, but onlyvisualimpact regulationcan affect

theform, visual quality,

and

appearanceof

develop-ment. Environmentalregulations

aimed

atthe

func-tionsofecosystemswill not

do

the

whole

job. Ifa

site'scarryingcapacitycan supporta certain inten-sityof

development

in terms ofdwelling unitsper acreor

number

ofrecreationalvisits,

any

environ-mental controls

on

the functional associations of

development

will not affect the shape

and

place-ment

of buildings, the obstruction of views, the

architectural congruity of thebuildings withtheir

surroundings, or the screening of intrusive

and

ob-jectionable elements.

Both

visual

and

ecologicalaspects of thecoastal

environment

deservetobe considered

on

their

own

merits,

and

unless the separateimportanceofvisual

resources to

community

character

and

identity is

recognized, it

may

well undercut thepolitical and

legalstatusofenvironmentalprotection.For

many

yearsenvironmentalism labored

under

the burden

of its early association with nonfunctional,

out-doorsy

aesthetic

and amenity

perspectives,butitis

now

widelyrecognizedthatenvironmentalissuesare

far

from

being luxuries.

They

concern essential,

functional naturalsystems

which

provide

life-sup-port services. If coastal advocates

and

residents

cannot articulate a legal rationale for opposing

development

which

would

bevisuallyintrusive,

im-pair their sense of

community,

and

dilute theii cultural identity, they

may

have

no

alternative bul to distort functional ecologically-oriented

regula-tions in order to find a cognizable legal basis foi

their position.23

People should be able to justify protecting the

visualcharacter ofthecoastdirectly,without

resort-ingtodisingenuousarguments about stormhazards

or fragileecosystems, thereby devaluing the

hard-won

gains ofenvironmentalregulation.

Such

a

sub-terfuge

would

be reminiscent of the early daysof

aesthetic zoning,

when

billboards

were

cited as

depreciatingpropertyvalues, impairingtraffic

safe-ty,

and

encouraging vice

and

vagrancy simply to

justify legal protections of the visual integrity of

A

visual regulatory

approach

is needed for the

North

Carolina coast because the nonfunctional

associations ofcoastalvisual resources are actually

more

important than functional associations to

many

people.

The

average

North

Carolinian, unless afisherman, sailor, or

marine

biologist, isunlikely

tomentionbiologicalproductivityorwater systems

management

when

speakingof the coast. Instead,

theidentity

and

characterofthecoast—saveforthe

sound, smell,

and

recreational possibilities of the

ocean

—

reside in the vistas of

unbroken

horizons,

of dunes

and

shores

showing

the ceaselessenergy

and

dramaticcontrastof the

boundary

betweenland

and

water.

The

imprint of

man

on

the coast, too, reflects the presence of the sea. Fishing villages, piers, lighthouses, docks,

and

boardwalks, also

signify thevisual identity of thecoast.It isbecause

we

seethesethings that

we

think of the coast as a

distinct

and

special region,

and

a place

where

peo-plegotoescape theconstrictions oftheirdailylives

against the

background

of endless sea

and

sky.

It is obvious that views of the ocean, sounds,

beaches,

and

dunesaremajortouristattractions

and

economic

resources. Beachfront hotel rooms, cot-tages,

and

condominiums

command

premium

prices, while towns with

charming and

historic

waterfronts are tourist meccas. Moreover, the

economic

value of non-visual resources

—

recrea-tionalfacilities,restaurants

and

hotels, fishingpiers,

bathing

and

surfing beaches

—

is considerably

en-hanced

by

the overall scenic character of the

sur-rounding landscape. It is the

way

the landscape

looks that

draws

peopleto the coast

and

createsits

distinctive milieu,

and

it is the definable visual resources ofthisenvironment

which

should be

pro-tected through visual impact regulation.

Once

we

acceptthat specificallyvisualregulation

has a place

on

the coast, the next issue is

why

it

shouldtake the

form

ofpolice

power

zoninginstead

of its traditional applications in planning

and

the

management

ofgovernmentproperties

and

projects.

Simply

put, if the coastal visual

environment

isto

beprotected, regulationisessential. State

and

local

governments caninfluencedevelopmentpatternsin

many

ways, but they can only influence

develop-ment's appearance through visual regulation or

publicly-ownedprojects. Aside

from

existing state

and

federalparklands,

where

thenaturallandscape

islargely preserved, thepublicsector

on

the

North

Carolinacoastdoesnot

dominate

thelandscapeas

thefederal

government

doesin

many

westernstates

where

many

visualresource

management

techniques

havebeen applied.24_{Instead, thedangertocoastal}

community

character

and

identity

comes from

pri-vate-sector

development

pressures,

which

will con-tinue to be considerable even under the

CAMA

regulatoryconstraints. Police

power

regulation, or

some

form

of aestheticzoning, istheonlypossible

means

tocontrol the visual

form

ofprivate

develop-ment

on

a

community-wide

scale. Thus, the regulatorychallenge istointegrate

new

development

into the existing visual

environment

of the coast

without adulterating the special qualities that

at-tracted

development

in the first place.

Coastal visual resource

management

should use

the police

power

alsobecausevisualimpact

regula-tion

now

hasasolid legalfoundation.

The

statutory

mandate

of

CAMA,

combined

with the

North

Carolinaaestheticzoningcaselaw,furnishes the

in-gredients

which

can be assembled into a coherent

rationale for regulating the visual resources of coastalcommunities.

The

firstplaceto startfor de-velopingvisualimpactregulationisnot theaesthetic

zoning

landmark

ofStatevJones, however, butthe

historicpreservation

approach

of

A-S-P

Associates. Jones,

which

established a flexible, case-by-case

balancingtesttodeterminethevalidityofaesthetic

zoning, isunfortunatelyan

example

of theconfused

"visualbeauty"approach, withall thelurking

prob-lems of deciding

why

and

how

to regulate the

beautiful.Forinstance, the Jonesopinionexpressed

approvalof casesinotherjurisdictions

which

treated

junkyardregulationasamatterofbeautyvs.

ugli-ness,based

on "modern

societalaesthetic

considera-tionssuchasconcernforenvironmentalprotection, control of pollution,

and

prevention of

unsight-liness."25

By

contrast, the "preservation of the character

and

integrityof the

community,

and

pro-motion

of thecomfort, happiness,

and

emotional

stability of area residents,"

were

only "corollary

benefits."26

By

retaining thetraditional conceptionof visual regulation as a matter of aesthetic sensibility

and

civicbeauty, Jonesfundamentallymisconstrues the natureof visualimpactregulation.

Though

itsresult

represents the

modern

majority rule, Jones's ra-tionaleisexactlybackwards.

Community

character

and

identity are the real raisons d'etre of visual

regulation, while"aesthetics"intermsofbeauty

and

uglinessisamisleadingsurrogate. Junkyardsarenot

restrictedbecausethey areuglyoreven

functional-lyharmful, but becausethesemiotic valuesof their

nonfunctional associationsarenegative

—

they

make

peoplefeel

bad

abouttheirneighborhood.

The same

visual resource

historic preservation

applying the

model

to the coast

motivations are at

work

in restrictions

on

mobile

homes,

billboards,

and

other

common

targets of aesthetic zoning.

Visual resource regulationin

North

Carolinafinds

a better analogy in the historic district statute in

A-S-P

Associates,

which

presents asystematic justi-ficationfor controlling theappearanceof

develop-ment. InA-S-P, substantive

due

process

was

satisfied

by

accepting the "educational, cultural,

and

eco-nomic

values"of

community

stability

and

identity

aspropergoalsofthe policepower.27_Procedural

due

process

was

satisfied

by

theapplication ofdefinite,

recognizedexteriorappearance standards

by

an

ex-pert review board; the ordinance did not try to

definebeauty or

impose

anabstract aesthetic stan-dard, butregulated visualappearance

by

reference

to the existing visual context. Becausethe historic district regulations

were

only concerned with ex-teriorvisualappearance,

and

established astandard

of congruity with identifiable elements of the

recognized Victorianstyle,theordinance

was found

rationally related to the

approved

goal.28

The

historic districtanalogy

may

already be ap-plied in a Iess-than-historic context, with special

appearancecontrols

aimed

atpreserving the visual

character of a

community.

29 _{Statutorysupport can}

befoundinN.C.G.S.160A-451etseq.,

which

allows

counties

and

municipalities to create advisory

ap-pearance

commissions

"to

promote programs

of

general

community

beautification"

and

make

plans

and

studies of the visual resources of the

commun-ity.30

Chapel

Hillhas takena leadrole inexploiting the quasi-historic visual regulationapproach,

hav-ing

employed

restrictive appearancedistricts, sign ordinances,

and

entranceway plans to preserve its

much-ballyhooed

'Village

Atmosphere"

in the face of strong

growth

pressures. In places like

Chapel

Hill, the semiotics of the visual

environment

are a

major

partof thelocalquality oflife,

and

comprise

the essence of

community

identity.

The

historicdistrictmodel, with

community

iden-tityasits goal

and

definablecontextual standards

asmeans, appliesafortiorito thecoast,

where

the

natural character of the visual

environment

helps

stiflethestandardcriticismsof aestheticzoning. In

terms of substantive

due

process, the context of

coastal landscapes threatened

by development

de-finesboththeneed for police

power

visual regula-tion

and

the objectives of that regulation.

The

natural visual resources of the coastal area are universally appreciated

and

represent a basic

con-sensus about identity-creating resources

which

shouldbeprotected.Sincenatureisthe guide,

poten-tial charges of exclusivity

and

imposing elite

aestheticsensibilities,suchas are

sometimes

leveled

against

Chapel

Hill, will be defused. Moreover,

governments

willnothaveacarteblanchetoenact

any form

of architectural control or development

restriction in the

name

of preserving the visual

identity of thecoast.

Nor

can theyretain arbitrary,

standardless discretion to decide

what

forms of

development

are or are not consistent with the

coastal character. Instead, visualresource

manage-ment

techniques create a rational nexus between

community

identityends

and

police

power

means

by

explicating thelinks

between

specificlandscape features

and

theresultingsense ofplace.Viewsheds

and

vistasof sea

and

shore serve as naturalreferents

from which

objective regulatory standards can be

derived.

First

Amendment

problems

are also alleviated

becausethecoastallandscapeisapre-existingpublic

resource, a "visual

commons,"

not a

forum

for

in-dividual architectural expression.

The

visualforms

of theurbanbuiltenvironmentcanarguablybe con-sidered a sort of architectural Speakers' Corner in

which

individual expression

combines

to create a

community

character.

The

value

and

character of

the coastallandscape,

by

contrast, is

predominant-ly natural.

These

landscape attributes comprise a public

good which

canbeinfinitely

and

indefinite-ly shared

by

viewers, but

which

is"consumed" by

intrusive or incompatible development.

Too

many

buildings trying to takeadvantage of ocean views can destroy the landscape for all

—

a true Tragedy

of the

Commons

situation.Consequently, tothe ex-tent that building design

and

the visual

form

of

developmentareprotected expressionatall, the

non-speechaspectsofcoastal

development

faroutweigh

theFirst

Amendment

interestsatstake.31Finally,the

hackneyed

"corollary benefits" of visual

regula-tion—preserving property values

and

promoting

tourism

—

areundeniably genuineinthecoastal

con-text,

where

the visualappealofthelandscapeisthe

mainstay of the entire local

economy.

The

legalinstitutions

which

might becreatedto

implement

coastal visual controls

depend

on

how

theinventoryclassifieslandscaperesources,whether

itemphasizes uniquenessortypicality.

From

a

state-wide

perspective,almostallof thecoastallandscape

is unique, but in the context of the coastal region alone,

much

smaller

and

more

discreteareas stand

out as "of greater than local significance."

be-comes

astateversuslocal issue.

On

one

hand, local

government

and

residents have the

most

intimate

knowledge

and

thelargeststakeinthe identity-

and

character-creatingfeatures of thelandscapesof their

own

communities,

and

their views should be

re-spected asprovided in the

CAMA

regulations.

On

the otherhand, the

North

Carolinacoastisa state

and

nationalresource,

whose

regional character pro-vides a sense of place

and

fulfillment to

many

more

people than the

permanent

residents.

Many

local

governments

and

residents

may

be

more

sympa-thetic to (or be the

same

people as) real estate interests

and

more

willingtopursueintensive

devel-opment,

and

theirviews

on

the visual resources of

the coast

may

not coincidewiththoseofother

North

Carolinians.32

The

tendency of local

governments

to take a

parochialapproachtoa

common

resource,

and

their

lackofexpertiseinplanning

and

landuse, are

some

of the reasons

why

the

CAMA

framework

was

originallyenacted. Because

CAMA

has beenfairly successful in balancing state-local tensions,

and

increasinglocalgovernments'awareness

and

capaci-tyto deal with coastal planning issues, while

pro-tecting the broader public interests in coastal

resources, visualresources

management

shouldalso

beabletofitunderthe

CAMA

umbrella.

The

statute

itselfprovidessufficientauthority,even amandate,

forprotecting thescenicresources ofthecoast, but

new

implementing regulations are necessary to

properly construct a visual impact regulatory

program.

Like other coastal policies, visual resource

management

canbeimplemented through

CAMA's

dual

approach

of state-regulated

AECs

and

state

supervision of local coastal plans. First, the

Natural/Cultural

AEC

regulations of 15 N.C.

Admin.

Code

.07H.0500 shouldbe

amended

to

in-clude aspecificscenicorvisualcomponent,creating ascenic

AEC

within

which major and minor

devel-opment

would

be reviewed

and

permittedjust like

any

other

AEC.

Scenic

AECs

should bedesignated as viewsheds, identifyingvistasof

and from

capes, inlets,

and

marshes of particular quality

and from

state

and

national parks, wildlife sanctuaries,

and

other protectedlands. All of the designated

view-sheds

would

be of extralocal significance.

State-determined standards

must

control thedesignation

and

management

oflandscapes of special quality;

otherwise, allowingthe visual context to be

deter-mined by

"local

government

and

citizenry"

would

subvert the notion of preserving the landscape

resource for the larger public

The

usestandardsforscenic

AECs

should

general-ly provide that

no development

will be permitted

which

substantially impairsihevisualattributesof

thelandscapeasdeterminedbytheOfficeofCoastal

Management

at the timeofdesignation. This

text-ualincongruitystandardis

much

likeexisting

AEC

use standards

and

thus

would

belegally sufficient

standingalone, but itcould also besupplemented

with quantitative measures of

how many

degrees of vision

may

be impaired,

whether

the

develop-ment

isvisible

from

certain points, orwhethervisual

access to theshore or othersightsis

compromised.

For

major development

permitapplications,

OCM

might require thefullrangeofvisualimpact

assess-ment

techniques, such asbefore-and-aftersketches,

photos, or models, to further specify the effects

of property

development

on

particular visual

resources.

OCM

should also develop in-house ex-pertise in visual impact assessment, landscape

evaluation,

and

perceptual

and

preferencesurveys

inordertocarryoutits

own

scenicassessments

and

to give technical assistance to local governments.

Indeed, ifcoastal landscape protection isto suc-ceed, local

programs

must

play avitalrole, justas

withtheotherpoliciesof

CAMA.

The

coastal land-scape is simply too vast for the state to regulate alone,

and

theproperstaterole in

any

case should belimitedtothosevisualfeatures

which

areof

more

thanlocal significance. Moreover, as evidenced

by

waterfront historic districts

and

sign ordinances,

many

coastalcommunities

seem

quite willingto take regulatory steps to protect the visual

symbols

of character

and

identity.

To

spur further action,

CAMA's

localplanningregulationsat 15N.C.

Ad-min.

Code

.07B.0200shouldbe

amended

torequire avisualresource

management

elementto be

includ-edinlocal coastal plans.Localgovernmentauthority

toexercise theirpolice

powers

forvisual regulation

comes from

the result of Statev Jones

and

the

ra-tionale of

A-S-P

Associates.

Local visual

programs

should be based

on

their

own

landscape inventories, organized

around

the

viewshed concept. Visual regulation ordinances

couldbe enactedinthe

form

ofaviewshedoverlay

zone taken

from

a viewshed

map

and

applied to

points

and

pathsofscenic significance, as identified

by

localresidents.

The

precisejurisdictional

boun-daries ofviewsheds are not as important as land-scape architects think, because the regulatory

requirements

would

be contextual performance

standards

and

not

burdensome

specification

requirements.

visual resource

management

on

the coast

organizing visual

programs around

An

Aesthetic Resource.

Applicantsfor

development

permitsinthe

view-shedzone

would

berequiredto

show

a

minimal

im-pact

on

sightlines,viewsofdunesor beaches,forest

background, or other visual features; in general,

minimal

visual intrusion.This can be accomplished

either

by

scaling

down

buildingsorclustering

them

with other development, or

by

screening fixtures

with vegetation. Permit applicants should have

latitude in devising

methods

to integrate

develop-ment

withthelandscape, but they shouldalsobear

the

burden

of

showing

that their proposal

would

comply

with the applicable visual standards.33

Specifically, localvisualimpactregulationscould

in-clude jurisdiction-wide height

and

bulkreductions, screening of intrusive development,

underground

utility lines,

and

architectural standards,

making

the

entire

community

a protected visual resource area

without havingtoprovidea possiblydisingenuous

historical nexus.

However,

if a historic district

alreadyexists, thelocalitycouldeasily integrateits

visual regulations as part of thehistoricappearance

controls. Also, beachaccess

programs

could begin

toconsider visual access aswell as physical access

to the shore.

Conclusion

As

development

pressures increase

on

the

North

Carolina coast, those

who

cherish the area will

realize that the coastal landscape

—

its visual

resources

—

deserves separate attention

and

protec-tion if the special identity of the coastal region is

tobepreserved.

When

legislatorstake

up

this issue,

theyshould avoidthe temptationtoturntothe

or-thodoxaestheticzoningdoctrine

embodied by

State

v. Jones. Instead, policymakers should realize that

a pleasing appearance is not desirable forits

own

sake as an aesthetic experience, but because the

visual

environment

can signify the character and

identityofanarea: theregulatorytheoryofCostonis

and A-S-P

Associates.

When

trying to identify thenature

and

compo-sition of the visual

components

of

community

character, the

law

should turn even farther

away

from

its

own

time-worn,untested assumptions, and

be guided instead

by

the design professions'

tech-niques ofvisual resource

management.

Landscape

inventories,perception

and

preferenceevaluations,

and

visualimpact assessmentsindicate

what

is

im-portant in the coastal landscape,

and by

so doing

canjustify

and

illuminatethe precise applicationof

police

power

regulationtoprotectsignificant

view-sheds

and

other ingredients of thecoastal character.

Though

mutuallyunfamiliar,

law

and

landscape analysiscaneach supplythe deficienciesofthe other discipline. Aestheticzoning

law

needsa theory to

visual resources,

and

visual resource

management

needsa concrete regulatory applicationinorder to

affect the overallappearanceof privatedevelopment.

More

importantly, joining aesthetic zoning

and

visual resource

management would

not only help preserve the priceless visual riches of the

North

Carolinacoastallandscape, but

would

setan

exam-ple forotherplaces.

The

coastisnottheonlyregion of particular visual quality,

and North

Carolinais

onlyoneof

many

states

which

embracesthe validi-ty of aestheticzoning. Visual regulationmightbegin

to protect the character

and

identity of

mountain

ridges, river valleys,

and

otherspecial placesacross the country, including the

urban

historic districts

which

firstpointed theway.

By

fusingaesthetic zon-ingwithvisual resource

management, North

Caro-linacan take pridenot onlyin a matchless coastal landscape,butalsoina

method

of protectingit.

NOTES

1. Costonis,supran.2;Rowlett,supran.6; Ziegler,supran.7;

Note, AestheticRegulationandtheFirstAmendment,3 Va.

J.Nata. Res. L.237(1984); Note, StatevJones: Aesthetic Regulation—FromJunkyardstoResidences?61N.C.L.Rev. 942 (1983).

2. Rohan, supra n.2at16-33-4 (citationomitted).

3. Costonis, supra n.2at413-8.

4. Note, Beyond theEyeoftheBeholder, supra n.21at 953.

5. Ziegler,supran.7;Note, Aesthetic Regulation:StatevJones,

14N.C. Cent, L. Rev. 239, 246 (1984).

6. Costonis, supra n.2.

7. Another commentator,EdwardZiegler, refers tothisrationale

asthe "derivativehumanvalues" theory.Ziegler,supran.7;

Rathkopf, The LawofZoning and Planning, §14.02(6).

8. Costonis,supra n.2at392.

9. Costonis,supran.2at418-9 (emphasisin original). 10. S.Greenberg

&

W.Rohe,NeighborhoodDesignand Crime:

A

TestofTwo Perspectives,50J. Am. PlanningAssn. 48

(1984).

11. Costonis, supran.2at420-24.

12. Atleastwithoutthevisualresourcemanagementtechniques discussed.

13. R.Litton, DescriptiveApproachestoLandscapeAnalysis,

inreport ofNational ConferenceonApplied Techniquesof

AnalysisandManagementoftheVisualResource, Incline Village,Nevada,April 23-25, 1979,at 78-9.This conference

wasasignificantmilestoneinthedevelopmentofthe visual resourcemanagementfield.R.Smardon

&

J.Felleman,The

Quiet RevolutioninVisualResourceManagement:

A

View fromthe Coast, 9 CoastalZone Mgmt.J. 211,213(1982). 14. §101(b)(2).

15. Note, BeyondtheEyeof theBeholder, supran.2at1457;

S.Scauman,

On

A

ClearDayinOgunquit,Maine,9Coastal

ZoneMgmt.J. 313(1982); R.Andrews, LandscapeValues

inPublic Decisions, ReportofConference, supra n.40at686;

K.Craik

&

N.Feimer, Setting TechnicalStandardsforVisual AssessmentProcedures, Reportof Conference, supra n.40

at93; L. Ortolano, Environmental Planningand Decision

Making(NewYork:John Wiley

&

Sons1984)at305;E.Zube

&

K. Craik, Indices of Perceived Coastal Quality,IICoastal

Zone 781008(1978);E.Keller

&

J.Bedford, ResearchDesign

toEvaluate Scenic ResourcesinNorthCarolina, N.C.

Of-ficeof StatePlanning(1974)at1.16Smardon

&

Felleman, supran.40; Ortolano, supra n.42.

16. Fischman, Visual Impact Assessment:

A

Review of the Methodologies and Literature as Applied to the North Carolina Coastal Zone, Center for Urban and Regional

Studies,

UNC-CH

(Jan.1986). Thispapercould hardlyhave beenwrittenwithoutthe assistanceofGailFischmanin

mak-ing available the sourcesfromherstudy.Thereaderisurged

toconsultherpaperforamoredetaileddiscussionandreview ofthe visual resourcemanagement literature.

17. N.C.G.S. §113A-113(b)(4).

18. 15 N.C. Admin. Code §.07H.0504.

19. TelephoneconversationwithRobinSmith, Office of Coastal

Management8/4/86.ThesiteisPermudaIsland,designated

at15N.C.Admin. Code§.07H.509(e).

20. 15 N.C. Admin. Code §.07H.050(l)(c).

21. Zube

&

McLaughlin,supra n.58at369-70;see alsoAndrews, supran.40at688.

22. Costonis, supran.2at429.

23. Inaddition,environmentalistsmaybewaryofweakening

their position by advocating protection of mostly-scenic resources. See Ris, supra n.53, at 307.

24. Andrews, supran.40; Boster, supra n.45. 25. 305 N.C. at529-30, 290S.E.2dat680.

26. 305N.C. at530, 290S.E.2d at681.

27. 298 N.C. at216, 258S.E.2d at450.

28. See Note, Beyond the Eye ofthe Beholder, supra n.2 at

1452-6.

29. Note, Aesthetic Regulation,supra n.25at253-4.

30. N.C.G.S. §160A-452.

31. Alternatively,coastallandscape regulation couldbeseen as

acontent-neutral time, place, andmannerregulation ona regionalscale;restrictingallformsofincompatible

develop-mentbut onlywithin coastal viewsheds.

32. SeeHegenbarth

&

Shaw, supran.64.

33. Itshouldbe notedthattheappearancecommissions

autho-red byN.C.G.S.§160A-451wouldprobablynotbeableto

assumethepermit reviewfunctions directly,since Statev Jones forbidsaestheticregulationtobedelegatedtobodies withoutstatutory policepowerauthority.305 N.C.at351, 290S.E.2dat681.Consequently, thetowncouncil or other governingbodymightwanttouse a visualadvisory

com-mission, with or without professional qualifications for

membership. Itisunlikelythatmanycoastalcommunities have any residents qualified in landscape planning and design, pointing up the need for

OCM

expertise and

assistance.