Architecture as Art? Not in My Neocolonial Neighborhood: A Case for Providing First Amendment Protection to Expressive Residential Architecture

I. INTRODUCTION In the late 1960s in Landue, Missouri, Demiter and Joan Stoyanoff wanted to build a pyramid-shaped home with a flat roof, triangular windows, and doors positioned on the corners of the home.1 Although the Stoyanoffs' futuristic home conformed to all of the city's building and zoning requirements,2 the architectural review board denied the couple's request for a building permit because the home failed to "conform to certain minimum architectural standards of appearance and conformity with surrounding structures."3 The board stated that its purpose was to prohibit "unsightly, grotesque and unsuitable structures" like the Stoyanoffs' proposed home.4 Landue's mayor defended the board's decision and added that the Stoyanoffs' design was "in fact a monstrosity of grotesque design,"5 damaging to adjoining property values, and inapposite with the French Provincial, English Tudor, and Colonial architecture of the community.6 The couple subsequently appealed the board's decision and won at the state circuit court.7 Applying rational basis review, the Missouri Supreme Court8 reversed and held that the aesthetic determinations of the architectural review board were consistent with the city's interest in protecting the "general welfare of the community."9 If the court's analysis were applied to a few imagined variations of the Stoyanoffs' design, the results would be troubling from a First Amendment perspective. If the Stoyanoffs' pyramid were expanded one hundred feet and transported to Paris, it would evoke the architectural artistry of I.M. Pei's Louvre entrance. Shrunk to tabletop size, it becomes sculpture. These examples not only beg the Dadaists' question: what is art, they also raise the question of whether residential architecture10 should receive the same level of First Amendment protection afforded other expressive art forms.11 In the First Amendment landscape, protection for expressive residential architecture remains undeveloped territory.12 No court has explicitly considered free speech concerns in cases of residential architecture. This reality is particularly surprising considering that courts have provided First Amendment free speech protections for sexually-oriented businesses,13 abstract sculpture,14 and, ironically, semi-permanent homes built to protest homelessness policies.15 This Comment argues that residential architecture is an expressive art form, thus passing the threshold inquiry for expressive conduct under First Amendment free speech analysis. Upon passing this initial inquiry, expressive residential architecture would have the presumption of First Amendment protection. According to free speech jurisprudence for expressive conduct, a court would then be required to apply intermediate scrutiny to aesthetic zoning decisions, thereby creating a better balance between a homeowner's expressive interests and a state's interests in regulation. Nevertheless, as this Comment illustrates, weighing a community's legitimate interests, which may be affected by atypical architecture, against a future homeowner's expressive interests is particularly difficult. Although surmountable, architecture's unique nature creates unprecedented challenges in the application of the Court's expressive conduct jurisprudence. For instance, because architecture is an immovable and lasting structure, the state has an interest (of debatable importance) in protecting the aesthetics of a community over the dictates of an individual property owner. Permanence also distinguishes architecture from other areas of free speech protection, so the application of precedent is difficult. Additionally, because the medium and message of architectural expression are inextricable linked,16 writing content-neutral regulations and providing reasonable time, manner, and place accommodations are difficult. These complexities may be the unwritten subtext for why courts have not applied First Amendment protection to residential architecture. …