Patrick Carroll – March 13, 2023
On the morning of June 14, 2022, a new mural was unveiled above the entrance to Leavitt’s Country Bakery in the small town of Conway, New Hampshire (pop: 9,822). Inspired by the nearby White Mountains, the mural features a mountain range—of pastries. The whimsical idea and style was a perfect fit for the small-town bakery, and certainly a step up from the drab wooden façade that preceded it.
The mural had been painted by three local high school students as a project for their art class, and the unveiling was attended by many students and community members, including the local press.
“There were a lot of late afternoons,” said Olivia Benish, the art teacher who oversaw the project. “I wanted to give my top students a project, and they really did a great job.”
The project took 80 hours for the students to complete, which they put in over the span of five weeks.
“I’ve never done such a big piece of art before. So it’s pretty exciting,” said Morgan Carr, one of the artists.
Leavitt’s’ owner Sean Young was also pleased with the mural, and he was especially proud that he was able to partner with the high school on the project.
“We thought it would be a fun project for the kids and good for the community,” said Young. “Hopefully this will be an annual project, as we have other sides to the building.”
Unfortunately, this isn’t the end of the story. A week later a town official showed up to the bakery and informed Young that the mural violated a local zoning ordinance which places a limit on the allowable size of store signs. According to the town, the Leavitt’s building can’t have a sign more than 22 square feet. The mural, being 91 square feet, far exceeds that. Thus, according to officials, the mural must come down.
It’s worth noting that Conway has many large murals, all of which the town allows. So what’s different about this one? According to officials, this mural counts as a “sign” because it depicts the kinds of things the store sells, namely pastries. In other words, if the mural had depicted real mountains—or anything else for that matter—there would be no problem.
There would also be no problem if this exact same mural were displayed somewhere else. In fact, town officials told Young that if he moved the mural to the farm stand next to the bakery—which is on the same lot—then it could stay up because the farm stand doesn’t sell baked goods.
Despite immense public backlash, the town has put its foot down and is insisting the mural be removed or changed. Near the end of 2022 they threatened Young with enforcement proceedings. If he doesn’t remove or paint over the sign, he could face criminal charges and fines of $275 per day.
But rather than acquiesce, Young has chosen to fight back. On January 31, he teamed up with the Institute for Justice (IJ) to file a federal lawsuit against the town, arguing that the zoning ordinance violates his First Amendment rights.
“Government bureaucrats don’t get to play art critic and decide what is and isn’t art,” said IJ Senior Attorney Rob Frommer. “Leavitt’s could legally have a mural the exact same size if it didn’t show any items they sell. That makes no sense and violates the First Amendment.”
“I couldn’t believe the town was going after me for giving high school students a way to express their artistic passions and contribute something fun and delightful to the community,” said Young. “This mural isn’t hurting anyone. If anything, it has brought the community together.”
The Case against Zoning Laws
What’s remarkable about the zoning law at the center of this story is precisely how unremarkable it is. There are thousands of laws just like this across the country, and they’ve become so commonplace that we rarely even think about them. Only when a story like this comes along do we even consider that they might be a tad intrusive.
It wasn’t always this way. When zoning laws were first introduced around the beginning of the twentieth century, they were hotly debated. Over time, however, people gradually gave up fighting them, and now we mostly take them for granted.
Not only have zoning laws faced less opposition over time, they’ve also become far more stringent. Municipal and county ordinances now regularly include such restrictions as how tall you can build, how densely you can build, how far back from the street your building must be, what the property can be used for, and even very specific rules like what size of signs you can have, as this story illustrates. What started as “you can’t build a skyscraper there” soon became “you can’t build an apartment there if it doesn’t have at least 20 parking spaces.”
The main argument in favor of these laws is that they help preserve the character of a community. Without these laws, the reasoning goes, you’d have brothels next to schools and lumber mills next to residential neighborhoods. Obnoxious signs would be everywhere…you get the picture.
Proponents also argue that these laws help maintain property values (“stabilize” is the euphemism). After all, if the place across the street is allowed to be trashy, that’s sure to have a negative impact on the value of your home.
The primary argument against zoning laws revolves around property rights (though in court it’s often more effective to argue the First Amendment angle, as IJ is doing in this case). In short, people should be allowed to do what they wish with their own property. Government control violates your liberty as a property owner and is thus unethical.
In response to the apprehension that widely incongruous land uses might be juxtaposed, such as brothels and schools, opponents of zoning laws would argue that these fears are largely overblown, because such uses would make little practical sense anyways. Further, in the few cases where such problems might arise, voluntary arrangements such as restrictive covenants could easily prevent unwanted developments. Similar arrangements could likewise be made to address other issues like setbacks and signs.
As for the argument that zoning laws are needed to maintain property values, detractors simply argue that this is not an ethically legitimate reason to control someone else’s property. Property owners worried about losing equity can propose voluntary agreements with developers, but they shouldn’t get to dictate what someone else does on their land. Should a company be allowed to cripple their competitor’s business with burdensome land-use regulations on the ground that the competitor was hurting the value of their business?
Are Zoning Laws Constitutional?
In addition to the moral debate, there’s also a debate as to whether zoning laws are even constitutional. That may seem like a settled issue today, but it was far from settled in the early twentieth century.
One of the main constitutional arguments against zoning laws is that they violate the Fourteenth Amendment, specifically the “due process” clause. As per the Fourteenth Amendment, “…nor shall any State deprive any person of life, liberty, or property, without due process of law.”
The argument is that when a government enacts a zoning ordinance it is in effect depriving a property owner of their property rights and liberty without due process, because it is restricting what they can do on their land.
The constitutional debate reached a climax in the 1926 landmark Supreme Court case Euclid v. Ambler. In that case, the Supreme Court ruled that zoning laws were constitutional because they were a form of nuisance control and therefore a valid exercise of police power.
Though various legal challenges (such as First Amendment challenges) continue to be mounted against specific zoning laws to this day, the constitutionality of zoning laws as such has largely been conceded.
As one would expect, zoning laws became much more prevalent in the wake of this ruling.
Meddling with Minutiae
While the practical consequences of zoning laws are debatable, it’s hard to dispute that they’ve at least caused a great deal of conflict and strife. Every new development seems to be a battle. The tiniest minutiae regarding land uses have been litigated to death in city halls and courts across the country. Not only is this a tremendous waste of time and resources, it’s also rather detrimental to our culture.
When even the smallest details regarding a property fall under the purview of government, the inevitable result is a society of busybodies. Everyone is constantly minding everyone else’s business, and petty grievances are taken way too seriously. Those who are particularly officious are promoted to the noble position of “enforcer” and are encouraged to interfere whenever the letter of the law gives them an excuse to justify their jobs.
Surely, we have better things to be doing than this.
The Roman historian Tacitus (AD 56 – 120) summed up the problem with a timeless aphorism. “The more corrupt the state, the more numerous the laws,” he wrote.
The bureaucrats in Conway, New Hampshire would do well to reflect on these words.
Image Credit: Institute for Justice