The Palm Coast City Council on Tuesday agreed to rescind its two-week-old decision to end all restrictions on houses’ exterior paint colors. It will instead allow almost all colors while preserving a ban on five: neon, fuchsia, magenta, orange and purple.
The proposed change would still result in the least restrictive color rules since ITT founded Palm Coast in the late 1960s as a deed-restricted community. The upshot for now is that the famously, handsomely dark blue house in the F Section that’s been at the center of the controversy for months can keep its royal color.
But it may also open legal vulnerabilities for the city, because the restrictions are subjective. In other words, the city would be making a judgment based on the content of an expression–exterior colors being a form of expression– which may violate a Supreme Court precedent that bars selective government regulation of expression.
Until now–and until the council approves a different ordinance–the city has been judging permissible colors by their “light reflective value,” or LRV, a more objective criterion. The higher the LRV, the more permissible the paint. The standard has been so restrictive though as to result in a reign of bland colors.
Among residents addressing the council on colors over the past months, those favoring fewer to no restrictions have routinely outnumbered those favoring stricter restrictions.
Measuring public sentiment from public comment at council meetings can be risky. In recent years the loudest and often the more obnoxious rather than the most thoughtful mouths have tended to dominate the floor. Those addressing the council on colors, however, have reflected a more varied swath of residents than the usual nattering gadflies.
Council member Theresa Pontieri, who pushed for the reconsideration, cautioned the council about the five banned colors. She preferred the LRV approach. But she ended up voting with the majority.
“To get rid of all house color restrictions, I think, is adverse to what our city stands for,” Pontieri said. “Reasonable regulation is in place for a reason. Obviously, I’m a big property rights advocate, but we have to consider all people’s property rights, and I think that reasonable regulation to make sure that our city remains beautiful, and that the people who moved here to begin with, their rights are not disregarded in this as well. And so I think getting rid of all color regulations is an extreme move in the wrong direction.”
Pontieri was looking for agreement to send the question to a referendum. The council voted approvingly to reconsider the issue, but not for a referendum. “We are elected to represent the constituents,” Mayor Mike Norris said. “We’re not a direct democracy. We’re not going to vote on everything.”
That prompted Pontieri’s colleagues to propose retaining the ban on the five heretical colors, only for Pontieri to explain the legal slippery slope of that approach.
“The five band colors, to me, is again adding a subjectivity instead of an objective alignment with the LRVs,” Pontieri said, “because you’re subjectively saying these–I think it’s like five colors–are so repulsive that we’re going to continue to ban them. And I just find that to be contradictory to the concept that we’re trying to arrive at here, which is: we cannot tell you what your house color should be, because we don’t like a color. If we’re banning specific colors, we’re inserting subjectivity to it.”
To Council member Ty Miller, “we’re using a formula to come to a subjective mesure,” he said of the LRV approach.
The council on July 1 had voted to scrap all restrictions, including those on the five heretical colors. The 4-1 vote Tuesday returns a previous proposal to the council and will require yet two more readings of the proposed ordinance.
That same proposal had failed to get the planning board’s recommendation earlier this year. So it will not go before the planning board again, since that panel has made its position known. It will need two readings of the City Council.
Normally the outcome would be foretold. It won’t be on paint colors. By the time the council takes up the issue again, it will be the 13th or 14th time a local board will have discussed the issue and considered various proposals. The legal vulnerability of the proposed rule may give it pause, though based on Tuesday’s discussion, the simplified ordinance will be greatly more permissive but for those five colors.
