A New Hampshire city’s new ordinance, touted as “a path forward” for public artwork, has failed to resolve a bakery owner’s First Amendment dispute over a large pastry shop painting, and his lawyer predicts it will only lead to more litigation is because city officials are “speech police.”
Conway residents passed the ordinance in Tuesday’s municipal election by a vote of 1,277 to 423. This was part of a lengthy vote on budget and spending items and the election of government positions such as electoral officer, treasurer and police commissioner.
The vote came more than a year after the owner of Leavitt’s Country Bakery sued the city above a painting by high school students that hangs outside his store of the sun shining over a mountain range made up of sprinkle-covered chocolate and strawberry donuts, a blueberry muffin, a cinnamon roll and other pastries.
The planning committee decided that the painting was less art and more advertising and that it could not remain as it is due to its size. At about 90 square feet (8.6 square meters), it is four times larger than the city’s sign code allows.
The new regulation requires applicants to meet criteria for art on public and commercial property. It says that while zoning and planning committees must approve the appropriateness of theme, location and design before the selection committee considers each proposal, the process should allow “no interference with the artistic expression or content of the work.”
“There is no part of the letter where we seek to restrict any kind of speech,” Planning Board Chairman Benjamin Colbath said at a March 28 meeting. “We tried to write this carefully and certainly took inspiration from what a lot of other communities are doing and also got confirmation from our advisors on this point.”
An attorney for the bakery had urged voters to reject the ordinance.
“Usually people can decide whether to speak or not; “You don’t have to ask the government to say ‘very please’ first,” Robert Frommer wrote in the Conway Daily Sun last week.
“All commercial property owners would be required to obtain a permit before placing public art of any kind in the city,” Frommer wrote, and city officials “may reject murals based on their depiction or the person installing them.”
Sean Young, the bakery owner, said he voted NO: “Local officials are not allowed to play art critics.”
Young sued after city officials told him the painting could stay if it depicted actual mountains — rather than pastries that suggested mountains — or if the building was not a bakery.
Young’s lawsuit was put on hold last year as residents considered revising the way the city defines signs so that the sign would have remained in place. However, this measure was considered too comprehensive and complex and failed.
The mural will remain in place for now as his case goes to trial in November.
Frommer told The Associated Press in an email that the city has not said whether the new ordinance would affect Leavitt’s mural, “and if Sean wanted to paint another mural with the high school students at one of his stores , he would have to step in through the unconstitutional framework of the regulation.”
The city attorney did not immediately respond to an emailed request for comment Wednesday.
When Colbath discussed the ordinance at last month’s meeting, he presented it as a way to allow for more public art in the city.
“There was a gap in our ordinance and I wanted to try to clarify that and find an easier path for community art,” he said.