The Abuse of Discretionary Power

Abstract

Perhaps one the most ubiquitous of the various types of advisory bodies found in local communities is the appearance committee. The appearance committee, or commission, with its charge to serve as the aesthetic watchdog for the community, has become a fixture in many communities. Developers find it easier to accommodate this body’s requests than to challenge it.¹ The exasperated and resigned shopping center developer whose letter of frustration to the village mayor is quoted above is not alone in feeling that this type of action by an advisory body is an abuse of discretionary authority at the local level.

Article Footnote

The Appearance Commission attempted to negotiate us down from what was acceptable per the code [10’ x 10’],to a five foot wide sign. After much discussion, we finally agreed on an eight foot wide sign, which they approved. I asked them if we had any other choice in the matter, and they commented that our proposal could be tabled again until next month. —Letter of a shopping center developer to a village mayor in suburban Illinois

Article Footnote

1. For the handful of cases involving challenges to such bodies, see Wakelin v. Town of Yarmouth, 523 A.2d 575 (Me., 1987); Morristown Road Associates v. Mayor and Common Council, 394 A.2d 157 (N.J., 1978). See also Poole and Kobert, “Architectural Appearance Review Regulations and the First Amendment: The Constitutionally Infirm ‘Excessive Difference’ Test,” Zoning and Planning Law Report 12 (January 1989).