Tuesday, October 9, 2012
In the famous 1954 case of Berman v. Parker, private property owners objected to the District of Columbia condemning their land for an urban renewal project “merely to develop a better balanced, more attractive community.” To which Justice Douglas famously replied:
. . . Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.
. . . The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.
While Douglas’ language opened up great potential for aesthetic-based land use regulations,* not all community officials and judges have rushed to embrace his logic. I am certain we can all recall examples when aesthetic justifications have been met with skepticism. Beauty can be perceived as subjective and arbitrary; and in many instances it is viewed as a lesser, more tenuous rationale than economic or human health impacts. Indeed, I advise my own land use students that it is strategically better to couple aesthetic arguments with more traditional arguments based on public health and safety.
It was thus with fascination that I listened last week to an interview with Dr. Esther M. Sternberg, who has written a book that demonstrates, through empirical evidence, how the aesthetic design of public spaces such as schools and hospitals directly affects human health. The book is called HEALING SPACES: The Science of Place and Well-Being, and is published by Harvard University Press. In her book, Dr. Sternberg makes the case for architects and designers working hand-in-hand with health care workers to improve the health and healing of people. One compelling example mentioned in her interview is the rate of recovery of patients with views of natural settings, compared to those with views of brick walls. The interview with Dr. Sternberg can be found here: http://www.esthersternberg.com/healingspaces.htm.
Justice Douglas thus appears to have been on the right track when he spoke of the correlates between aesthetics and overall human welfare. Yet the connection may be stronger than even Justice Douglas suspected. Dr. Sternberg’s work suggests that rather than two independent bases for land use regulation, aesthetics can in fact be an integral and necessary component of human health.
* It should be noted that D.C’s urban renewal activities have been highly criticized for their race- and poverty-based impacts. There has been much written on the urban renewal movement, but one recent, well-researched piece is Amy Lavine’s “Urban Renewal and the Story of Berman v. Parker,” 42 The Urban Lawyer 423 (2010).