Regulating Taste as Regulating Expression

In November 2006, the Cheyenne Metropolitan Planning Organization (MPO) adopted PlanCheyenne, which was subsequently awarded the 2007 Daniel Burnham Award for a Comprehensive Plan by the American Planning Association. MPO liked PlanCheyenne’s integration of a transportation plan, a community plan, and a parks and recreation plan.  They also liked MPO’s intensive marketing of the planning process and outreach to citizens “of typically underrepresented sections of the community.” 

Ordinarily, such an award should be cause for general civic pride and celebration. Unfortunately for the property owners subject to this plan, the city codes adopted to implement it attempt to plan something beyond transportation infrastructure and public facilities — architectural taste.

Aesthetic design standards are not an appropriate subject for regulation.  My personal taste in architecture includes a preference for unfinished brick, front porches and rooflines broken by dormers or other details associated with late 19th century and early 20th century design. However, my ability to influence the design of buildings in Cheyenne is properly expressed in the real-estate market to the extent than I can afford to pay for these features when I select a home and neighborhood in which to live, or when I decide which businesses to patronize.  As an individual, I can and ought to reward attractive design with my wallet and my feet.  This is an entirely different thing than leveraging the punitive power of government to compel others to design buildings to suit the taste of an interested and overbearing majority at the expense of the individual property owner.

No matter how strongly even the largest majority of residents might prefer the architecture and landscaping regulations reflected in Article 6 of the City of Cheyenne’s Unified Development Code, they overstep when they trample on the freedom of others to express their own personal preferences and architectural taste. After all, just as one’s taste in art or music is a form of self-expression, an individual’s architectural choices communicate a message that individuals want to convey to all who see or enter a building.

Undoubtedly, Cheyenne may, and should, institute a process to choose the architectural style and details of public buildings that are constructed and owned by the City. Residents, businesses and taxpayers will inevitably disagree among themselves about what the correct trade-offs are between building costs and the civic marketing value of aesthetic enhancements. However, this public conversation does not pertain to privately constructed buildings on privately owned land in a free society. Public architectural design pertains to public buildings; these stand as a reflection of broader community values.  Likewise, private architectural design stands as a reflection of values held by individuals.

“The preservation of freedom is the protective reason for limiting and decentralizing governmental power,” wrote Milton Friedman in his introduction to Capitalism and Freedom. “But there is also a constructive reason. The great advances of civilization, whether in architecture or painting, in science or literature, in industry or agriculture, have never come from centralized government.”

The advances Friedman wrote about derive from increased individual freedom, which should be a continued aspiration for both the Cheyenne community and all of Wyoming. Regulation of architectural design within Cheyenne is an affront to individual freedom—even if the majority of people prefer the architectural taste the regulations purport to require. 

In my experience, we in Wyoming are too often willing to use the democratic process and majority rule as a pretext for imposing the tyranny of a faction adverse to the rights of other citizens, or to the permanent and aggregate interests of the community that James Madison warned of in Federalist Number 10.  Regulating architectural aesthetics as in Article 6 of the UDC is but one local example of this.

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