The Law of Yards

Property law regimes have a significant impact on the ability of individuals to engage in freedom of expression. Some property rules advance freedom of expression, and other rules retard freedom of expression. This Article examines the inhibiting effects on expression of public land use regulations. The focus is on two types of aesthetic regulations: (1) landscape regulations, including weed ordinances, that regulate yards; and (2) architectural regulations that regulate the exterior appearance of houses. Such regulations sometimes go too far in curtailing a homeowner’s freedom of expression. Property owners’ expressive conduct should be recognized as “symbolic speech” under the First Amendment. The Supreme Court developed the symbolic speech doctrine in contexts other than land use, but the rationale for the doctrine supports its extension to aesthetically based land use regulations. The clearest case of protected speech is a homeowner’s conduct that conveys a political message, such as a yard display that protests a decision made by a local government. Other conduct, however, that is nonpolitical in nature can convey a particularized message, and thus can merit First Amendment protection. Examples are a homeowner’s decision to plant natural landscaping, motivated by ecological concerns, or to install a nativity scene at Christmas. A regulation that restricts an owner’s protected speech is unconstitutional unless the government proves both that the regulation is narrowly tailored and that it protects a substantial public interest. If the public interest is solely based on the protection of aesthetic values, ordinarily it is not substantial enough to justify the restriction on speech. The government must come up with a plausible justification other than aesthetics to prevail. When the justification consists of an interest in addition to aesthetics, the balancing rules developed by the Supreme Court for symbolic speech should apply. If the regulation restricts expressive conduct, it may survive scrutiny only if it protects the community from conduct that causes significant economic or other non-aesthetic harm, while minimizing infringement on expression.   Read More……PDF


Related Articles

AB 690 Signed! New Management Disclosures and Changes to the Escrow Document Disclosure Form (CA)

The Governor has signed AB 690 into law, which modifies several Code sections and adds two new Civil Code sections

Good Collection Practices Protect Lifeblood of Community Associations

Assessments are the lifeblood of every community association. For most associations, it is the sole source of income to pay

Condominium Assessment Liens in Florida, Part IV: Overcoming Defenses and Sale of the Unit

Just like all other lawsuits, the unit owner is entitled to assert defenses. Below is a discussion on the most common.