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A New Hampshire town\u2019s new ordinance that was pitched as \u201ca path forward\u201d for public artwork hasn\u2019t resolved a bakery owner\u2019s First Amendment dispute over a large pastry painting, and his lawyer predicts it will only lead to more litigation as town officials become \u201cspeech police.\u201d<\/p>\n
Conway residents passed the ordinance by a vote of 1,277 to 423 during town elections Tuesday, part of a lengthy ballot for budget and spending items and picking government positions, such as selectboard, treasurer, and police commissioner.<\/p>\n
The vote came more than a year after the owner of Leavitt\u2019s Country Bakery\u00a0sued the town<\/a>\u00a0over a painting by high school students that\u2019s displayed across his storefront, showing the sun shining over a mountain range made of sprinkle-covered chocolate and strawberry doughnuts, a blueberry muffin, a cinnamon roll and other pastries.<\/p>\n The zoning board decided that the painting was not so much art as advertising, and so could not remain as is because of its size. At about 90 square feet (8.6 square meters), it\u2019s four times bigger than the town\u2019s sign code allows.<\/p>\n The new ordinance requires applicants to meet criteria for art on public and commercial property. It says that while the zoning and planning boards must approve the appropriateness of theme, location, and design before the selectboard considers each proposal, the process should make \u201cno intrusion into the artistic expression or the content of work.\u201d<\/p>\n \u201cThere\u2019s no part of writing that where we try to limit any kind of speech,\u201d Planning Board Chairperson Benjamin Colbath said at a March 28 meeting. \u201cWe did try to carefully write that and certainly took inspiration from what a lot of other communities are doing as well, as well as confirm with counsel on that one.\u201d<\/p>\n A lawyer for the bakery had urged voters to reject the ordinance.<\/p>\n \u201cTypically, people get to decide whether to speak or not; they don\u2019t have to ask the government \u2018pretty please\u2019 first,\u201d Robert Frommer wrote last week in the Conway Daily Sun.<\/p>\n \u201cAll commercial property owners would have to get permission before putting up any sort of public art in town,\u201d Frommer wrote, and town officials can \u201cdeny murals because of what they depict, or who put them up.\u201d<\/p>\n Sean Young, the bakery owner, said he was voting NO: \u201cLocal officials don\u2019t get to play art critic.\u201d<\/p>\n Young sued after town officials told him the painting could stay if it showed actual mountains \u2014 instead of pastries suggesting mountains \u2014 or if the building wasn\u2019t a bakery.<\/p>\n Young\u2019s lawsuit was paused last year as residents considered revising how the town defines signs, in a way that would have allowed the sign to stay up. But that measure was seen as too broad and complex, and it failed to pass.<\/p>\n The mural remains in place for now, as his case heads to trial this November.<\/p>\n Frommer told The Associated Press in an email that the town hasn\u2019t said whether the new ordinance will impact Leavitt\u2019s mural, \u201cand if Sean wanted to paint a different mural with the high school students at any of his businesses, he would have to jump through the ordinance\u2019s unconstitutional hoops.\u201d<\/p>\n The town\u2019s attorney didn\u2019t immediately respond to an emailed request for comment on Wednesday.<\/p>\n When Colbath discussed the ordinance at last month\u2019s meeting, he painted it as a way to facilitate more public art in town.<\/p>\n \u201cThere was a hole in our ordinance and I wanted to try to make it clear and an easier path forward for community art,\u201d he said.<\/p>\n<\/div>\nSubscribe to the CEO Daily newsletter to get the CEO perspective on the biggest headlines in business. Sign up<\/a> for free.<\/div>\n