DESIGN REVIEW AND THE FIRST AMENDMENT

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1 City Attorneys Department Spring Meeting League of California Cities May 1-3, 1996 Robert B. Ewing City Attorney DESIGN REVIEW AND THE FIRST AMENDMENT TABLE OF CONTENTS PAGE I. INTRODUCTION 1 II. AN OVERVIEW OF THE DESIGN REVIEW PROCESS 1 III. THE TOWN OF TIBURON'S EXPERIENCE 3 IV. DOES THE FIRST AMENDMENT APPLY TO DESIGN REVIEW? 4 A. Existing Authority 4 B. Application of First Amendment Principles to Design Review 6 1. Is Architecture Speech Within the Meaning of the First 6 Amendment? 2. What is the Appropriate Standard of Review? 8 a. Content based regulation 8 b. Content neutral time, place and manner regulation 8 V. THE ARGUMENT FOR ATTORNEYS' FEES 10 A. The Standard for Award of Attorneys' Fees Under Section Common Nucleus of Operative Facts Substantial Constitutional Claim 10 B. Application of the Test to Design Review Litigation 11 VI. CONCLUSION AND RECOMMENDATIONS 12

2 DESIGN REVIEW AND THE FIRST AMENDMENT I. INTRODUCTION The validity of neighborhood compatibility or design review ordinances was analyzed in a paper presented to the city attorneys department at the League s 1989 annual conference. After reviewing the applicable case law, the author concluded that while design review ordinances were valid exercises of the police power, the regulation of architectural style...and the design and color of residences, however, is much more risky since this type of regulation as applied to residences has yet to work its way into the case law as a valid subject of police power regulation. K. Ennis, Height Limitation, View Preservation and Neighborhood Compatibility Ordinances: Tools in Controlling Mansionization, League of California Cities 1989 Annual Conference-City Attorney Department Session (1989). This paper addresses that question and specifically examines whether the first amendment s protection of freedom of expression applies to architecture in the context of the design review process. The paper also addresses whether a cause of action challenging a design review ordinance on first amendment grounds (even if unsuccessful) can be the basis for an award of attorneys fees if the plaintiff prevails on another cause of action. These issues were addressed in litigation involving the Town of Tiburon. This paper resulted from the research done in conjunction with that litigation. The conclusions reached with respect to these issues are that in certain circumstances a court would find that the architectural design of a structure (either residential or commercial) is a form of expression within the meaning of the first amendment. However, even in such cases design review ordinances should be upheld as valid time, place and manner restrictions only incidentally affecting speech. Finally, a city will be able to avoid an award of attorneys fees to a prevailing plaintiff if the city can establish that the first amendment cause of action is insubstantial. II. AN OVERVIEW OF THE DESIGN REVIEW PROCESS Design review (also referred to as architectural or site plan review) is a commonly used land use and planning tool. The Town of Tiburon s design review ordinance contains a fairly typical statement of purpose: The purpose of Site Plan and Architectural Review is to determine compliance with the [zoning] ordinance and to promote the orderly development of the Town, the preservation of its unique visual character, and the public health, safety, and welfare, by preventing the erection of structures, additions and alterations thereto which are not properly related to their sites, adjacent uses... The design review process attempts to achieve these goals in part through the review of site plans,

3 size, height and other relatively objective criteria. However, most design review ordinances also require the board to examine the architectural design of the house as well as the proposed colors and materials. The purpose of this review of architectural style is "to ensure that originality in site planning, architecture, landscaping and graphic design is encouraged, while inharmonious or monotonous design is avoided. It is this discretion to review architecture and determine what is original and not inharmonious or monotonous which leads to criticism of the process from property owners and architects. A recent column in the San Francisco Chronicle illustrates the point of view of architects. (Attachment A) There has been a great deal of litigation throughout the country involving design review. While courts in other states have not always been receptive to such ordinances, courts in California have consistently denied constitutional challenges to design review ordinances. 1 The constitutional questions which have been litigated and resolved in California include: Is design review reasonably related to a legitimate governmental interest? Plaintiffs have frequently argued that design review ordinances which are based in whole or in part on aesthetics violate substantive due process rights because they are not reasonably related to a legitimate governmental interest. However, California courts have upheld aesthetics as a legitimate basis for design review. Guinnane v. San Francisco City Planning Com. (1989) 209 Cal.App.3d 732, Are design review ordinances unconstitutionally vague? Plaintiffs have also argued that design review ordinances violate the due process clause because they are unconstitutionally vague and lack objective criteria. This argument was rejected in Novi v. City of Pacifica (1985) 169 Cal.App.3d 678, 682, and more recently in Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th Do design review ordinances deny applicants equal protection? While plaintiffs invariably allege a violation of equal protection, California courts have consistently denied both facial and as applied challenges to design review ordinances. Novi, supra, at p. 682, fn. 3; Guinnane, supra, at p Do design review ordinances unlawfully delegate power to design review boards? Plaintiffs have argued that allowing design review boards to deny uses otherwise permitted by the underlying zoning based on undefined aesthetic issues represents an excessive delegation of legislative authority to the board by the city council. This argument was dismissed in the case of Wesley Investment Co. v. County of Alameda (1984) 151 Cal.App.3d 672, III. THE TOWN OF TIBURON S EXPERIENCE The Town of Tiburon is an affluent suburb of San Francisco located on San Francisco Bay. Virtually all new residential construction in the town consists of custom homes designed specifically for the new owner. In addition, there are a large number of tear downs and rebuilds of smaller houses in older neighborhoods. In order to preserve the quality and character of its neighborhoods, Tiburon places a great deal of emphasis on the design review process.

4 Tiburon s design review ordinance establishes a five-member design review board which is delegated the authority to review all applications for new construction and any exterior remodeling of existing structures. The ordinance (Attachment B) contains a list of "Guiding Principles" and "Site Development Criteria" for the board to consider. Tiburon has also adopted a detailed set of design guidelines which supplement the ordinance and provide additional guidance on how to reduce the impacts of new development on surrounding properties. (Attachment C is an excerpt from the guidelines). In the early 1990's Tiburon received a design review application from David and Diane Williams. The Williams wanted to replace their existing 1700 square foot duplex with a new 8000 square foot duplex. The Williams property was located in one of the oldest neighborhoods in town (dating to the early 1900's) with primarily small lots, small houses and narrow, winding streets. The property also had a largely unobstructed view of the San Francisco Bay and skyline. The Williams application lead to nine months of public hearings before the design review board and later the Town Council on appeal. The primary concerns raised by the members of the public, the board and the Council related to the size of the proposed house, the amount of grading and retaining walls needed and the loss of privacy and views of neighboring owners. The board and some members of the public also raised concerns about the architectural design of the house (one board member stated that the design was well suited for a Bavarian forest but not Tiburon). The architectural issues were largely addressed through design changes to the project. The application was ultimately denied by the board and Town Council. The findings in support of the denial were based on the size and mass of the proposed duplex and its impacts on surrounding properties: loss of privacy, loss of views and sunlight, excessive grading and impacts on traffic safety. No findings were made regarding the architectural style or design of the proposed house. Following the denial of their project, the Williams filed a complaint in superior court alleging all of the constitutional claims discussed above as well as a cause of action for administrative mandamus. In addition, the Williams alleged a cause of action under 42 U.S.C. Section 1983, asserting a violation of their first amendment right of free expression. Specifically, the Williams alleged that The plaintiffs had the structure designed to reflect their personal views and attitudes and it was to be an expression of them to the town, the neighbors, and others. The proposal was denied because defendants did not like the design and it is clear that defendants objections to the Williamses expression of their point of view played a role in the decision to deny. Tiburon demurred to this portion of the complaint on the ground that the architectural design of a private residence is not protected by the first amendment. The court denied the demurrer, concluding that respondents offer no reason why a unique architectural design, expressing petitioners personal views and attitudes is not as worthy of First Amendment protection as live nude dancing or other artistic expression. Eventually both parties filed cross-motions for summary judgment, with extensive briefing of the

5 first amendment issue. The Williams filed declarations explaining that the architectural design of the house was an attempt on their part to express themselves to the community. They further stated that they had directed their architect to achieve this goal by combining design elements from Frank Lloyd Wright with historical structures in Tiburon. Eventually the court granted the Williams motion for summary judgment on unrelated grounds 4 and never ruled on the first amendment claim. Unfortunately, this was not the end of the first amendment issue in the case. As the prevailing parties, the Williams sought attorneys fees under both state law and 42 U.S.C. Section Although the superior court denied the request for attorneys fees, the Williams have appealed that ruling. That appeal is currently pending in the First District Court of Appeal. IV. DOES THE FIRST AMENDMENT APPLY TO DESIGN REVIEW? A. Existing Authority The first amendment is frequently applied in the context of land use regulation. The two most common examples are the regulation of signs and billboards (City and County of San Francisco v. Eller Outdoor Advertising (1987) 192 Cal.App.3d 643, 656) and adult entertainment establishments (Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 47). First amendment issues have also been addressed in litigation involving ordinances regulating satellite television dishes (Johnson v. City of Pleasanton (9th Cir. 1992) 982 F.2d 350, 353) and ham radio antennas (Howard v. City of Burlingame (9th Cir. 1991) 927 F.2d 1376, 1381). Although the first amendment has been frequently applied in land use litigation, there are no reported cases anywhere in the United States which have squarely addressed the applicability of the first amendment to design review. There are, however, several cases which have addressed the issue tangentially and provide some guidance on the issue. The most frequently cited case is Reid v. Architectural Board of Review (Ohio 1963) 192 N.E.2d 74. In Reid, the plaintiff purchased a lot in the city of Cleveland Heights, Ohio, which is an upscale suburb of Cleveland. The existing residences in the neighborhood were described by the court as dignified, stately and conventional structures... Id. at p. 77. In contrast, Ms. Reid s proposed home was described as a flat-roofed complex of twenty modules, each of which is ten feet high, twelve feet square and arranged in a loosely formed U which winds its way through a grove of trees... From all appearances, it is just a high wall with no indication of what is behind it. Ibid. Not surprisingly, the city s architectural review board rejected Ms. Reid s application. The appellate court s decision upholding the city s action focussed on the question of whether aesthetics was a legitimate governmental interest supporting the design review ordinance. The dissent, however, went beyond this question and addressed first amendment issues. After reciting testimony showing that the board s decision was based largely on public opinion about the nature of the design, the dissenting judge concluded by asking Should her aesthetic sensibilities in connection with her selection of design for her proposed home be stifled because of the apparent belief in this community of the group as a source of creativity?...is her artistic spirit to be imprisoned by the apparent

6 beneficence of community life in Cleveland Heights? Id. at p. 81. See also Anderson v. City of Issaquah, supra, 851 P.2d 744 (dicta expressing concern with design review board making decisions based on undefined and amorphous "image" of city s signature street). The case of City of Indio v. Arroyo (1983) 143 Cal.App.3d 151 involved a challenge to the city s sign ordinance as applied to a wall mural painted on a commercial establishment. While the case did not involve design review of a structure, the court s finding that the city s sign ordinance violated the first amendment is based on a rationale similar to that enunciated in the dissent in the Reid case. The city s legitimate interest in its esthetic environment cannot be a justification for suppressing the rights of those private persons who seek to improve that environment. The stifling of artistic expression is a perverse result to claim as a victory for esthetics. Id. at p In spite of (or perhaps because of) the absence of any reported cases addressing the applicability of the first amendment to architecture and the design review process, there are a large number of law review articles on the subject. See, Comment, Zoning, Aesthetics, and the First Amendment, 64 Columbia Law Review 81 (1964); Rubin, Architecture, Aesthetic Zoning, and the First Amendment, 28 Stanford Law Review 179 (1975); Williams, Subjectivity, Expression, and Privacy: Problems of Aesthetic Regulation, 62 Minnesota Law Review 1 (1977); Kolis, Architectural Expression: Police Power and the First Amendment, 16 Urban Law Journal 273 (1979); Note, Aesthetic Regulation and the First Amendment, 3 Virginia Journal of Natural Resources Law 237 (1984); Poole, Architectural Appearance Review Regulations and the First Amendment: The Good, The Bad, and The Consensus Ugly, 19 The Urban Lawyer 287 (1987); Rice, Zoning Law: Architectural Appearance Ordinances and the First Amendment, 76 Marquette Law Review 439 (1993). The authors of these articles all conclude that, in at least some circumstances, courts should find that architecture is a form of expression protected under the first amendment. Where the authors differ, and the key issue in any litigation, is what the appropriate standard of review should be in such a case. B. Application of First Amendment Principles to Design Review In analyzing this issue, a court will have to address two questions. First, is architecture "speech" for purposes of the first amendment? Second, if architecture is protected by the first amendment, what is the appropriate standard of review? 1. Is Architecture Speech Within the Meaning of the First Amendment? As noted above, the authors of all of the law review articles cited above conclude that the courts are likely to find that, in at least some circumstances, architecture is speech and therefore entitled to some degree of protection under the first amendment. A review of first amendment cases involving non-verbal expression lends credence to this conclusion. The Supreme Court and lower courts have recognized that many forms of conduct and non-verbal expression are protected by the first amendment. Examples include nude dancing (Schad v. Borough of Mt. Ephraim (1981) 452 U.S. 61), burning a draft card (United States v. O Brien (1968)

7 391 U.S. 367) and the use of a shanty to protest apartheid (University of Utah Students Against Apartheid v. Peterson (D.Utah 1986) 649 F.Supp In a case cited frequently in the law review articles and other design review cases, the New York Court of Appeals held that a property owner who erected clotheslines in his front yard and hung rags from them as a protest against his property tax bills was engaging in nonverbal expression protected by the first amendment. People v. Stover (N.Y. Ct.App. 1963) 191 N.E.2d 272, 276. Summarizing the jurisprudence on the subject, one author concluded that "architecture can also have as much communicative value as sit-ins, pickets, flags, and other recognized devices of symbolic speech." Rubin, Architecture, Aesthetic Zoning, and the First Amendment, 28 Stanford Law Review 179, 188 (1975) (footnote omitted). There are three conceptual bases on which a court could find that architecture is a form of protected expression. Those three concepts are: Architecture as artistic expression. The Supreme Court has held that nonverbal expression which contains "serious artistic value" falls within the scope of the first amendment. Miller v. California (1973) 413 U.S. 15, 24. In holding that movies as an art form are protected by the first amendment (regardless of their content), the Supreme Court noted that movies can be used to communicate ideas directly or through the "subtle shaping of thought which characterizes all artistic expression." Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S There is little question that some architecture is a form of artistic expression. The work of Frank Lloyd Wright is an excellent example. 5 Architecture as symbolic expression. There are numerous examples of non-verbal conduct which involve symbolic expression and are thus protected by the first amendment: burning draft cards, putting peace signs on the flag, wearing arm bands, etc. However, symbolic expression is protected under the first amendment only if the message is understood by those viewing it. Spence v. Washington ((1974) 418 U.S. 405, 410. There are several instances in which architecture could be considered a form of symbolic expression. In historic districts where any new construction must match the style of the district, the architectural theme is often symbolic of the era being preserved. In other instances, the design of a structure is intended to convey a symbolic message to the viewer. Many churches fall into this category with their design theme based on the cross. A recent commercial example is the new Disney Studios animation facility in Burbank, which is designed to look like the sorcerer s cap from the Disney film Fantasia. Architecture as a form of self expression. The Supreme Court has held that the first amendment protects the right of individuals to express themselves through non-verbal communication. This was one basis for striking down West Virginia s compulsory flag salute. West Virginia Board of Education v. Barnette (1943) 319 U.S As applied to architecture, it is possible that an individual who designs and builds a unique, custom home (like the Williams in Tiburon) could claim that the home is a form of self expression and a communication to the community of their personal tastes and attitudes. As the above examples demonstrate, it is likely that some architectural designs would be considered protected expression under the first amendment. However, most of the architecture which cities

8 review should not fall in this category. For instance, it is hard to see how a conventional residential tract development or a tilt-up industrial building could be viewed as either art, self-expression or symbolic of anything. 2. What is the Appropriate Standard of Review? Even if plaintiffs can establish that a particular architectural design is a protected form of expression, they will still need to establish that their first amendment rights have been violated. In answering this question, the key will be what standard of review the court will employ in analyzing the ordinance. Plaintiffs will argue for a strict scrutiny test on the basis that design review ordinances are content based. However, it appears that the most appropriate standard is that applied to content-neutral time, place and manner restrictions. a. Content based regulation Ordinances which regulate speech on the basis of content are subject to strict scrutiny. At first glance, design review ordinances may appear to be content based because they do provide for the denial of projects on the basis of the appearance of the structure, which is the content of the architectural process. The denial of the U-shaped modular house in Reid v. Architectural Board of Review, supra, 192 N.E.2d 74, and the pyramid shaped home in State ex rel. Stoyanoff v. Berkeley (Sup.Ct.Missouri 1970) 458 S.W.2d 305 (described by the court as unusual, grotesque and nonconforming in relation to the surrounding conventional architecture), appear to have been based solely on the architectural design or content of the homes. In Tiburon s case, the Williams argued that the Town s design review ordinance was content based and constituted a prior restraint on expression. Their argument was based on Smith v. County of Los Angeles (1994) 24 Cal.App.4th 990, in which the court of appeal found the county s ordinance requiring a conditional use permit for all adult businesses unconstitutional as a prior restraint because it did not contain "narrow, objective and definite" standards. The Williams argued that Tiburon s requirement of a discretionary permit based on subjective design standards was analogous to the use permit requirement which was invalidated in the Smith case. Although the trial court did not decide the issue, Tiburon s response to this argument was that its design review ordinance, both facially and as applied, was a content neutral time, place and manner regulation. b. Content neutral time, place and manner regulation While design review ordinances do allow for review of the architectural design of structures, the focus of such ordinances is actually on the secondary effects of proposed structures on the community and not the design in and of itself. On this basis, cities should argue that the applicable standard of review is the content-neutral, time, place and manner standard articulated in City of Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41. This standard has been applied in cases involving satellite television dishes (Johnson v. City of Pleasanton (9th Cir. 1992) 982 F.2d 350, 353) and ham radio antennas (Howard v. City of Burlingame (9th Cir. 1991) 937 F.2d 1376) as well as adult entertainment.

9 Under the three part test set forth in Renton, the ordinance will be found valid if: 1) it is justified without reference to the content of the regulated speech, 2) it is narrowly tailored to serve a significant governmental interest, and 3) it leaves open ample alternative channels for communication of the information. Each of these tests can be met with a properly drafted and applied design review ordinance. Justification without reference to the content of the speech. The primary objectives of design review are the orderly development of the community and the preservation of neighborhoods and property values. The incidental impact on architectural design is constitutionally acceptable. In an as applied challenge, this argument can be bolstered by making appropriate findings regarding the impacts of the proposed structure on the neighborhood or community at large. Narrowly tailored to serve substantial governmental interests. The interests served by design review have consistently been found to be substantial and appropriate by the courts. These interests include preserving the quality of urban life (City of Renton, supra, at p. 50), aesthetics (Guinnane v. San Francisco City Planning Com., supra, 209 Cal.App.3d 732 at p ) and preservation of property values. The courts have recognized that design review ordinances are allowed a certain latitude in how narrowly they must be drawn. Novi v. City of Pacifica, supra, 169 Cal.App.3d 678. The trial court in Tiburon s case concluded that it is difficult to see how the ordinance and guidelines could be made much more specific without actually dictating architectural design. Alternative channels for expression. On their face, most design review ordinances allow for ample alternative means of expression because they neither require nor prohibit any specific architectural styles. 6 In order to better defend an as applied challenge, it is important to have the board or council make findings that the proposed structure is not acceptable in the specific neighborhood. This leaves open the possibility that the structure could be appropriate in another location. In Tiburon, the design review board has approved several very modern homes in newer subdivisions or in more isolated locations which might not have been approved in an older, more established neighborhood. In summary, cities should be able to establish that most architectural design is not protected by the first amendment. However, in those specific cases in which the plaintiff establishes that the architectural design of his or her structure is expressive conduct within the meaning of the first amendment, a city should argue that its design review ordinance, both facially and as applied, is a content-neutral, time, place and manner regulation of development. V. THE ARGUMENT FOR ATTORNEYS FEES 7 Most design review litigation involves administrative mandamus causes of action. In such cases, it is difficult for plaintiffs to recover attorneys fees even if they are the prevailing party. One reason plaintiffs may be tempted to plead a cause of action alleging a first amendment violation is because even if they do not prevail on that claim, it may serve as the basis for an award of attorneys fees under 42 U.S.C. Section A complete discussion of Section 1988 is beyond the scope of this

10 paper. The following discussion addresses Section 1988 in the narrow context of the contemplated first amendment challenge to a design review ordinance. A. The Standard for Award of Attorneys Fees Under Section U.S.C. Section 1988 authorizes courts to award attorneys fees to a prevailing party in any action seeking to enforce constitutional rights through 42 U.S.C. Section Maine v. Thiboutot (1980) 448 U.S. 1. The court may award fees under Section 1988 even if the plaintiff does not prevail on his or her constitutional claim, so long as the plaintiff prevails on another cause of action if: 1) that cause of action is factually related to the constitutional claim, and 2) the constitutional claim is substantial. Smith v. Robinson (1984) 468 U.S Common Nucleus of Operative Facts The first part of the test involves the factual relationship between the constitutional claim alleged and the statutory claim upon which the plaintiff prevailed. The plaintiff must establish that both claims arose out of a common nucleus of operative fact and would ordinarily be brought in a single proceeding. Maher v. Gagne (1980) 448 U.S. 122, 132, fn.15. The test is the same as that for determining pendent jurisdiction in federal courts. 2. Substantial Constitutional Claim Even if both claims arise from the same operative facts, the plaintiff must still establish that the constitutional claim is substantial. The Supreme Court has defined a substantial claim by contrasting it with claims which are not substantial. A claim is insubstantial only if its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy [citations omitted]; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial... Hagans v. Lavine (1974) 415 U.S. 528, The application of this two-part test is illustrated in Filipino Accountants Assn. v. State Bd. of Accountancy (1984) 155 Cal.App.3d In that case, the plaintiffs alleged that the state board of accountancy routinely refused to grant waivers to the state CPA examination to accountants already certified in the Phillippines while routinely granting such waivers to accountants certified in British commonwealth countries. The complaint alleged a variety of causes of action, including due process and equal protection violations under 42 U.S.C. Section The trial court found that the state board had abused its discretion by denying the waivers and ordered the board to reevaluate the applications for waiver. The parties thereafter entered into a stipulated judgment. Neither the trial court s decision nor the judgment made any mention of racial or national origin discrimination, nor of Section The trial court subsequently granted the plaintiff s request for attorneys fees under both Code of Civil Procedure Section and Section The state appealed, arguing that while the plaintiffs had prevailed in the litigation they had not prevailed on their federal constitutional claims, and therefore were not prevailing parties for purposes

11 of Section The court of appeal upheld the award of fees under Section The court found that all of the causes of action alleged in the complaint arose from the same nucleus of operative facts (the state s treatment of accountants from the Phillippines) and that the constitutional claim of discrimination based on national origin was substantial, even though the court had never made any specific findings regarding this cause of action. Id. at p See also Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1463 (awarding attorneys fees under Section 1988 even though complaint did not allege a Section 1983 cause of action). B. Application of the Test to Design Review Litigation As discussed above, cities should prevail in any litigation alleging violation of the first amendment right of free expression through the design review process. However, the plaintiff may be able to prevail on a claim under Code of Civil Procedure Section that the board or council abused their discretion in denying the plaintiff s application. In such cases, plaintiffs will undoubtedly seek attorneys fees under Section 1988 as part of their overall motion for fees. This is precisely what happened to Tiburon in the Williams litigation. Applying the two-part test from the Filipino Accountants case, the plaintiff must first establish that both causes of action arose from a common nucleus of operative facts. While the point should not be conceded, in most cases the plaintiff should be able to meet this prong of the test because both causes of action involve the design review ordinance and its application to the plaintiff s project. In Tiburon s case, the Town was able to successfully argue that the cause of action on which the plaintiffs prevailed (the Permit Streamlining Act) arose from a different set of facts because the court s decision was not based on the actual application of the design review ordinance. The second part of the test is the substantiality of the first amendment claim. If the court has already ruled on the merits of the first amendment claim, there is no need for further analysis. However, it is likely that if the court finds for the plaintiff on the administrative mandamus cause of action and remands the case back to the city for further consideration, the court will not issue a ruling on the first amendment claim. In that situation, the plaintiff may still be able to argue that his or her first amendment claim is substantial. There are two difficulties for cities in rebutting this argument. First, the courts have set a very low threshold for plaintiffs to show that their claim is substantial: they only need to demonstrate that the claim is of questionable merit and not totally precluded by previous case law. They do not need to establish that they would actually prevail on the claim. Second, the test for substantiality assumes that there is existing case law addressing the subject. Because there is no case law on the subject of the first amendment in design review, trial courts may have greater discretion in determining whether they believe the claim has some merit without actually ruling on the claim. In Tiburon s litigation with the Williams, the court found that the first amendment claim was insubstantial because it was "novel" and unsupported by any caselaw. The Williams appeal is based in part on the argument that the court incorrectly applied the substantiality test.

12 Even if a plaintiff can meet both prongs of the test set forth in Filipino Accountants, the court may still deny the plaintiff attorneys fees in "special circumstances." One example of such special circumstances is seen when the plaintiff s case furthers only his or her own private interests and not those of the public. Kreutzer v. County of San Diego (1984) 153 Cal.App.3d 62, (plaintiff s action restoring his entertainment license primarily private in nature because he did not challenge the constitutionality of the licensing procedure in general). This is analogous to the standard for recovery of attorneys fees under Code of Civil Procedure Section Cities should always make this argument. VI. CONCLUSION AND RECOMMENDATIONS The lack of cases on point may seem to make this subject more theoretical than practical. However, there are a number of reasons why it is likely that plaintiffs will consider first amendment challenges to the design review process. First, the very concept of design review is one which engenders a great deal of hostility and litigation. Architectural review engenders much of this hostility. Second, for those litigants wishing to challenge the constitutionality of design review ordinances, it is the only such challenge which has not yet been rejected by the courts in California. Third, as shown by the number of law review articles written on the subject, there is a fair amount of intellectual interest in the subject. Finally, until such time as the courts find such a cause of action to be without merit, it behooves plaintiffs to plead the cause of action and attempt to use it as a basis for an award of attorneys fees if they prevail on an administrative mandamus cause of action. There are a number of steps a city can take to help avoid exposure to a first amendment claim or an award of attorneys fees to a plaintiff prevailing on another related cause of action: Review your ordinance to make sure its stated purposes include the governmental purposes described above: preservation of neighborhoods, quality of life, property values, aesthetics and the general welfare. In addition, consider limiting your ordinance to an anti-monotonous standard or a compatibility standard. Some ordinances require both which gives plaintiffs an argument that they cannot tell what the city really wants: originality or compatibility. Adopt a comprehensive set of design guidelines to supplement the ordinance (see the table of contents for Tiburon s guidelines in Attachment C). The use of such guidelines provides applicants and architects with a greater understanding of what is expected of them. It will also provide you with a stronger argument that your design review process is narrowly tailored and contains standards which are as specific as is possible in the context of design review. In applying the ordinance and guidelines, the board and/or council should base their findings on the secondary impacts of the proposed structure rather than solely on the actual style of architecture itself. For example, a design which simply does not fit in an existing neighborhood will likely have secondary impacts on property values and aesthetics. In addition, whenever possible make findings regarding impacts on surrounding neighbors (views, privacy, sunlight) unrelated to the architectural style of the structure.

13 Once in litigation, consider using a motion for summary adjudication of issues rather than a demurrer to resolve the first amendment cause of action. If the plaintiff properly alleges a first amendment claim (including the unique nature of their design and an intent to convey a personal or artistic message), they will most likely survive demurrer. If the plaintiff prevails on another cause of action, the ruling denying the demurrer could later be used to bolster the plaintiff s argument that his or her constitutional claim is substantial. Summary adjudication is also more likely to be successful because, through discovery, you will be able to present evidence rebutting the plaintiff s expressive intent and demonstrating the secondary impacts of the proposed structure. In addressing the attorneys fee issue, argue the insubstantial nature of the first amendment claim and look closely to see whether the first amendment claim arises from the same facts as the other causes of action. In addition, consider whether there are any "special circumstances" which would preclude an award of attorneys fees. 1. The 1989 paper prepared by Kevin Ennis contains an excellent detailed analysis of the California cases. 2. Although aesthetics has clearly been recognized as a legitimate governmental interest in California and by the United States Supreme Court (Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490, 510 [plurality opinion]), many states still do not recognize aesthetics alone as a legitimate governmental interest. Pace, Aesthetic Regulation: A New General Rule, 90 W.Va.L.Rev. 581, 584 (1987). 3. The court of Novi upheld Pacifica's ordinance against both a facial and as applied challenge. However, it should be noted that an as applied challenge is generally more troublesome and is more closely related to the first amendment issues discussed below. A good example of this from another state is the case of Anderson v. City of Issaquah (Wash.App.Div ) 851 P.2d 744. In that case the court found the city's design review ordinance unconstitutionally vague as applied. In reaching this conclusion, the court noted that even after four lengthy public hearings, the design board could not articulate what further design changes were necessary to make the project "visually interesting" and "compatible" with the city's signature street as required by the ordinance. 4. The court found that the Williams' application had been deemed approved under the provisions of the Permit Streamlining Act (Government Code Section et seq.) in spite of the Williams' request for an extension of time beyond that allowed by the Act. The facts, and result, were similar to those in Bickel v. City of Piedmont (1995) 36 Cal.App.4th Ironically, the Williams case against Tiburon was heard in a courtroom located in the Marin Civic Center, a Frank Lloyd Wright design widely viewed as an artistic statement and a symbol of Marin County. 6. The City of Coral Gables, Florida, does require specified architectural styles in designated neighborhoods. In addition, many historic preservation ordinances require all structures within a historic district to maintain a specified architectural style in keeping with the historical structures in the district. 7. Thanks to John Sharp, Esq. for his input on this section of the paper.