CONWAY — The owner of Leavitt’s Country Bakery and his attorney are urging voters to reject a proposed ordinance regulating public art after the town called for the removal of a mural atop the business.
Sean Young, who has sued the town in federal court, said the zoning proposal in the town warrant for April 9 will expand the municipality’s illegal regulation of art in public spaces.
Article 19 asks voters whether they want to “ create a Public Art Ordinance that addresses the installation of murals and also permits other art visible to the public on commercial and public property such as sculptures, street art, or other types of permanent art work.”
The article, proposed and unanimously recommended by the Planning Board, comes after a group of Kennett High School students in 2022 painted what they — and Young — believed was a fanciful mural depicting various pastries and local mountain scenes that was installed over the entrance to the business.
Not long after that, a town zoning officer notified Young that because the installation shows items that are sold at the bakery, it is technically a sign, not a mural, and would have to come down.
Young appealed the decision to the Conway Zoning Board of Adjustment, which twice ruled the installation was a sign, not art. The Town has agreed to not take any action against Young while the lawsuit is pending, including levying fines, filing criminal charges or requiring the artwork to be altered, downsized or removed from the building.
The Arlington, Virginia-based Institute for Justice filed a lawsuit on Young’s behalf in U.S. District Court in New Hampshire alleging that the town’s sign ordinance violates Young’s First Amendment rights.
The lawsuit asks a judge to allow the “mural” to remain permanently in place and for one dollar in “nominal” damages.
Robert Frommer, the senior attorney at the Institute for Justice, said Tuesday that attorneys with his organization will depose town officials later this month in an effort to understand the rationale behind the existing sign regulations.
Both Frommer and Young, who spoke during an interview on Monday, said their lawsuit could be settled immediately if the town drops the enforcement action against Leavitt’s Bakery. Frommer and Young said officials rejected a previous offer from the Institute for Justice to help Conway craft a sign ordinance that meets constitutional muster.
In an email Tuesday, Conway Town Manager John Eastman said he had no update on the lawsuit but, “As for Article 19, the Town of Conway doesn’t allow murals of any kind to be permitted and this article gets us there and it separates out the difference between a sign and a mural. We are asking the voters to support article 19 on April 9th at the polls.”
A free-speech issue
Frommer said that during the discovery process of the lawsuit, his organization has found that the town, “for decades, basically,” has decided what murals can go up or not “all based on what they depict.”
“That’s content-based regulation on speech and to be honest, they haven’t brought anything forward to justify that kind of discrimination,” Frommer said.
Article 19 would have no impact on Leavitt’s Bakery because it could not be applied retroactively, Frommer said, but if Article 19 were approved, it could in the future affect property owners in similar circumstances to Young’s.
Frommer said adopting Article 19 would not be good for Conway, which seemingly “wants to throw itself out of the frying pan and into the fire.”
If the article passes, the Planning Board “would agglomerate all manner of power under that ordinance and if any commercial entity wants to put up art it first has to ask, ‘Pretty please,’” for the board’s approval, Frommer said. The existing sign ordinance would enable the planning board to “say yes or no, for any reason,” he said.
Article 19 would turn the Planning Board “into the free-speech police for the town,” Frommer said, adding it would be “wildly unconstitutional and would lead to more litigation.”
The Institute for Justice tried to avoid suing Conway, Frommer said. “I always prefer to work with towns to fix these free speech issues,” but Conway rejected its overtures.
