September 18, 2002
REGULATING SCENIC VIEWS
By: Kevin E. McCarthy, Principal Analyst
You asked that we identify (1) states that explicitly authorize the regulation of developments to protect scenic views and (2) ways that municipalities and other political subdivisions protect views, either under such explicit authorization or their general zoning authority.
Hawaii has established statutory guidance for a state agency regarding the preservation of views in the Kakaako development district on Oahu. Maine, Minnesota, New York, Oregon require political subdivisions to regulate developments to protect scenic views and other aesthetic values, and Vermont and Wisconsin allow subdivisions to do so. The regulation generally occurs under zoning enabling law, although Maine provides for the protection of scenic views in its subdivision control laws. Minnesota's law applies to areas near lakes, streams, and wetlands. The remaining laws apply statewide. Connecticut allows municipalities to protect scenic views by establishing village districts pursuant to CGS § 8-2j, which is described in OLR memo 98-R-0945. To date Brooklyn and Middletown have established village districts.
As discussed in OLR memo 2002-R-0618, Connecticut also requires municipalities to address scenic preservation goals when acting on proposed developments in designated coastal areas. At least four states (California, Maine, Oregon, and Washington) require municipalities to address scenic preservation goals when acting on proposed coastal developments, while in New Hampshire and Rhode Island state agencies address scenic views in their regulation of coastal developments.
While most states do not explicitly authorize political subdivisions to regulate scenic views, many subdivisions have done so under laws that grant them broad zoning powers. These laws, in Connecticut and elsewhere, are based on the Model Zoning Enabling Act, which establishes the promotion of the general welfare as a purpose of zoning. The U. S. Supreme Court, in Berman v. Parker 348 U. S. 26, 31 (1954), has indicated that the general welfare can include aesthetics. Courts in several states, including Connecticut, have ruled that municipalities can regulate development solely or in part based on aesthetics.
Several municipalities have used this general welfare provision to regulate on the basis of aesthetics, including the protection of scenic views. One common approach is to protect viewsheds, i. e. , the view that can be seen from a specific location. Another approach is to protect views of specific natural or manmade features. In several cases, municipalities have established overlay districts to protect views. Such districts can cover different types of zones within a municipality (e. g. , residential and commercial) and impose additional restrictions on development with the district. Another approach is the establishment of view corridors, which regulate development along specified streets to protect views of natural resources such as rivers.
In addition to these techniques, municipalities protect scenic views under their power to regulate the height and bulk of buildings under the Model Zoning Enabling Act. Don Poland, legislative director of the Connecticut chapter of the American Planning Association, notes that many shoreline municipalities in the state regulate the height of buildings near Long Island Sound to protect the views of nearby properties.
Municipalities can also preserve scenic views by regulating signs, including billboards. Municipalities routinely adopt such ordinances, and in some cases require that an architect or other design professional to review the proposed sign to determine whether it is compatible with its surroundings. OLR memo 2000-R-0773 describes the law in Connecticut and other states regarding local regulation of billboards. A number of states (including Connecticut) have statutory procedures for the designation of scenic roads, which regulate activities such as tree cutting. OLR report 93-R-0554 provides information on Connecticut's law.
Haw. Rev. Stat. § 206E-33 provides guidance policies for the state Community Development Authority with regard to the Kakaako development district. Among other things, the guidance calls for the preservation of major view planes and view corridors through regulation and design review. It also calls for the preservation of culturally significant settings and locations.
Under state law, local subdivision control ordinances must protect aesthetic, cultural, and natural values from undue harm. In adopting an ordinance and approving subdivisions, the municipality may not permit undue harm to visual access to the shoreline (Me. Rev. § 30-A-4404). Municipalities can meet these requirements by having planning board members view the site, comparing the height of proposed buildings with the tree line, and reviewing engineering studies. The developer can protect the view by entering into scenic easements that limit development of the property (see Conservation Law Foundation v. Town of Lincolnville 2001) Me. , 786 A. 2d 616).
As discussed in OLR memo 2002-R-0618, Maine also has a law requiring municipal of developments on the seashore and along lakes and rivers that requires the preservation of visual access.
By law (Minn. Stat. §§103F. 201 to 103F. 221), each county containing unincorporated land and each city must adopt a shoreland ordinance at least as protective as the Department of Natural Resource (DNR) model ordinance at Minn. Rules Ch. 6120. The DNR ordinance applies development setbacks and restrictions to lands adjacent to water basins and watercourses designated as public waters. In addition, a municipality may apply its ordinance to lands adjacent to wetlands designated as public waters wetlands. The DNR ordinance regulates building lot sizes, the placement of structures and sewage disposal systems, and other land uses within the shorelands of public waters-defined as within 1000 feet of the ordinary high water mark of a lake or locally designated wetland and within 300 feet of an ordinary high stream elevation. These ordinances are primarily are directed toward viewshed protection (See Minn. Rules Ch. 6120. 3300).
The state constitution (Article 1454) establishes a state policy to conserve and protect scenic beauty. State law explicitly allows all municipalities to protect scenic views under Mun. Home Rule Law Sec. 10(1)(a)(1), which allows them to adopt land use laws to protect and enhance their physical and visual environments. Towns and villages may consider viewshed protection in their definition of open space (N. Y. Env. Cons. Law § 55-0119).
Under the State Environmental Quality Review Act a wide range of developments are subject to environmental review. Under regulations developed pursuant to the act (6 NYCRR Part 617. 10) all local agency reviews of developments must consider whether the project will have a negative impact on resources of historic or aesthetic importance, and if so, establish conditions on the project to mitigate that impact.
Oregon addresses scenic view regulation as part of a broader statewide land use planning policy, which includes protecting natural resources and conserving scenic and historic areas and open spaces (Or. Admin R. 60-015-0000(5)). The policy specifies 19 goals municipalities must address in their respective land use plans and regulations, which must be reviewed and approved by the Land Conservation and Development Commission (Or. Rev. Stat. § 197. 015(5)).
The state allows municipalities to establish design control districts, which may include urban settlements with striking views and views extending access of open fields up to the forest edge. Planning commission approval is required build, substantially alter, demolish, or move buildings within such districts (Ver. Rev. Stat. § 24-4407).
State law allows towns to "regulate any place, structure, or object with a special character, historic interest, or other significant value, for the purpose of preserving the place, structure, or object and its significant characteristics" (Wis. Rev. Stat. § 60. 64).
The Big Sur Local Coast Land Use Plan was developed pursuant to the California Coastal Act of 1976, which is described in OLR memo 2002-R-0618. The plan includes policies to protect particularly important scenic views. Under the plan, areas that otherwise could be developed may not be because of constraints imposed by the policies. In Monterey County, owners of residentially zoned properties within such areas can receive a transferable development credit. To receive the credit, the property owner must grant the county an irrevocable scenic easement on the property, permanently restricting its development. The credit is transferable and can be sold to a third party. This credit allows the holder to more intensively develop a residential building site elsewhere in the county that is not subject to the restrictions. The new residential developments made possible by the credit must meet the other requirements of the plan, e. g. , its water supply and geological safety criteria. In addition, they must have the minimum feasible number of driveways leading onto the Pacific Coast Highway.
Denver has adopted an ordinance to restrict development in order to protect mountain views. The ordinance includes a map specifying the area where development is restricted, which amounts to about 12. 5% of the city. The tops of buildings in this area cannot exceed 5,434 feet, plus one foot for every 100 feet the building is located from a reference point located in Cranmer Park. (Denver's altitude is approximately 5,200 feet. ) The city also regulates the height of downtown buildings to protect views of its Civic Center. The ordinance is available on-line at http: //www. sonoran. org/town/denver. pdf. The state Supreme Court has upheld the ordinance in Landmark Land Company, Inc. v. City and County of Denver, 728 P. 2d 1281 (1986), citing Parker and holding that the ordinance did not constitute a taking.
Washington County has established on overlay zone designed in part to preserve the existing viewshed of the historic Antietam Battlefield site. The ordinance covers the subdivision of land as well as development within the zone.
North Elba, a resort community in the Adirondack Mountains, has established an overlay district to protect the viewshed of Whiteface Mountain. Developers in the district must demonstrate that their projects will not "result in a clearly adverse aesthetic impact. " Among other techniques, the planning board uses computer simulations to determine the impact of proposed developments. In 1998, the town's planning board rejected an application to build a Wal-Mart within the district, finding that it would cause a noticeable change to the visual character of the viewshed. The state's appellate court upheld the decision (Wal-Mart Stores Inc. v. Planning Board of the Town of North Elba NYS2d 774 (1998)).
Rochester has established corridors to preserve and enhance views of the Genesee River, which runs through the center of the city. The corridors were established by ordinance (Rochester City Code § 115-85. 1. 1) as part of the river management overlay district. All proposed construction, reconstruction, remodeling, alteration or moving adjacent to or above corridors must comply with additional dimension and bulk restrictions. The ordinance provides design guidelines for pavements, lighting, and safety barriers. The arrangement and scale of improvements must encourage and allow easy flow of pedestrian traffic across the site as well as to and from adjacent sites.
Portland has established four view corridors to protect views of Mt. Hood and Rocky Butte from selected vantage points in Columbia South Shore. The height of nearby buildings is restricted. Portland has also established view corridors of the Willamette River along seven streets. For six of these streets, buildings cannot intrude in the 30 feet from each side of the street. For the seventh street, there can be no intrusion in the 60 feet from each side of the street. These corridors were established to provide visual access and connections to the river for neighborhoods and
business districts that might otherwise be visually cut-off from the river. The corridors are generally extensions of existing public rights-of-way through to the river.
All development and vegetation with areas with a view corridor designation must undergo design review. Buildings in these areas can have facades of no more than 100 feet. Two rows of trees (one deciduous and one evergreen) must be planted on 30-foot centers. The ordinance also has provisions requiring screening of garbage cans and mechanical systems, establishing set-back requirements, and limiting the size and height of signs. The ordinance generally prohibits the removal of mature trees within the street setback. Additional sign standards apply in the Columbia South Shore view corridor.
Like many other cities, Portland allows developers to build larger buildings than would normally be permitted in a particular zone if the developer provides more open space than is required or meets other criteria. The developer cannot use this bonus space to violate view corridors.
These provisions are contained in §§ 33. 480. 40 et seq. of the municipal code (http: //municipalcodes. lexisnexis. com/codes/portland/).
Austin has established an overlay zone by ordinance to protect views from its hill country roadways. Among the goals of the ordinance is to preserve the scenic values of the Hill Country Corridor Parkways. The height of buildings and floor area ratio of buildings in these corridors are restricted, with the restriction varying with the underlying zone and the distance from the development to a state highway. Developments are subject to site plan review and landscaping requirements. The ordinance establishes landscaping requirements and limits new streets and driveways. The ordinance also provides incentives for developers who exceed its requirements by protecting scenic views of downtown Austin and various water bodies. The ordinance (Mun. Code § 5180 et seq. ) is available on-line at http: //www. sonoran. org/town/austin. pdf.
San Antonio has established overlay districts to protect views of the Alamo and other landmarks and sites. According to the ordinance (Unified Development Code § 35-337), the purpose of these districts is to "safeguard San Antonio's heritage by preventing the despoliation of views of areas and buildings that reflect important elements of the city's cultural, natural, historic, and economic fabric. " The ordinance established the process by which the districts are created. Developments that protrude into the viewshed and block the view of the protected building or site are limited by the ordinances setting up the individual districts. Existing structures within the viewshed that were legally erected are permitted to continue in existence. They may be modified, so long as they do not further encroach into the viewshed. The viewsheed protection provisions are available on-line at http: //www. sanna. org/udc_article3. pdf.
Summit County has developed policies to protect views of meadows and hillsides in the Snyderville Basin. The policy divides the basin into four areas, subject to different levels of development controls. Residential and other forms of development are not permitted in preservation areas. In retention areas, developments are only permitted if they are not visible from major roads in the basin. In modification areas, developments are permitted but their visual impact must be mitigated through such means as siting, landscaping, and lighting. The final type of area are those which have been visually degraded and should be rehabilitated and where the landscape should be restored. In all areas, development should occur in a way to preserve the scenic foreground and distant views, by placing development at the edge of open meadows and at the bottom of the hillsides. The policy is available on-line at http: //www. co. summit. ut. us/dept/planng/sville/Chpt6_drft. htm
The town of Westport has adopted a historic preservation ordinance that addresses viewshed protection (Code of Ordinances § 10-7-1 et seq. ). One of the ordinance's stated purposes is to protect landscapes that reflect elements of the town's history and to enhance the town's visual and aesthetic character. Alteration or visual impairment of any historic resource with the town's historic district requires a certificate of appropriateness from the town Historic Preservation Commission. Historic resources can include viewsheds, as well as historic buildings. Among the factors, the commission must consider in granting a certificate is whether the proposed construction diminishes the aesthetic values or scenic qualities of a landscape or viewshed.