91视频

By Kathy McCormack and Robert F. Bukaty

The Associated Press

CONWAY, N.H. 鈥� Bakery owner Sean Young was thrilled when high school art students last spring covered a big, blank wall at the business with a painting of the sun shining over a mountain range made of sprinkle-covered chocolate and strawberry frosted donuts, a blueberry muffin, a cinnamon roll and other pastries.

The display got rave reviews, and Young looked forward to collaborating with the school on more mural projects at his roadside bakery in Conway, New Hampshire.

Then the town zoning board got involved, deciding that the pastry painting was not so much art as advertising, and so could not remain as is because of its size. Faced with modifying or removing the mural, or possibly dealing with fines and criminal charges, Young sued, saying the town is violating his freedom of speech rights.

The painting could stay right where it is if it showed actual mountains, instead of pastries suggesting mountains, or if the building wasn鈥檛 a bakery.

鈥淭hey said it would be art elsewhere,鈥� Young told The Associated Press in an interview. 鈥淚t鈥檚 just not art here.

鈥淭he town should not have the right to police art,鈥� he said.

The controversy has residents of this town of 10,000 grappling with big questions about creativity and liberty as it tries to preserve its rural character. Like other White Mountain communities that draw skiers, nature lovers and shoppers, Conway is under development pressure, making the sign dispute fraught with worries that any concession to commerce could change what they hold dear.

Many people 鈥� including the zoning board members 鈥� applauded the students鈥� colorful work, but said rules must be followed, even if they鈥檙e old and outdated. At about 90 square feet, the mural is four times bigger than the sign code allows.

Following a longstanding democratic tradition of New England town meetings, residents deliberated how to define a sign before ultimately voting against changes last week. The proposed wording wasn鈥檛 clear, according to the local newspaper. Ultimately, a judge may have to resolve what remains an open debate in town.

鈥淭hose kids put their heart in it,鈥� retiree Steve Downing said. He thinks the painting should stay.

鈥淓veryone has to comply with the ordinance,鈥� said Charlie Birch, a former U.S. Forest Service worker. 鈥淎nd even though it was done by the students, which was well done, and I give them a lot of credit for it 鈥� if you have the ordinance, 鈥榦ne for all,鈥� that鈥檚 where we are. You can鈥檛 really make any exceptions; otherwise everybody else will want the exception.鈥�

Art teacher Olivia Benish, who worked with three students on the project, apologized to the board in September 2022 for not doing 鈥渄ue diligence鈥� to make sure the mural would comply. She didn’t respond to requests for an interview. But she told the board members that there must be a way to give students the opportunity to create positive public works of art 鈥渨ithout upsetting the law and the powers that be,鈥澛燼ccording to the town minutes.

Young filed in January聽argues that the town is unconstitutionally discriminating against him. He asked a judge to prevent the town from enforcing its sign code.

And now other businesses have been drawn into the controversy.

Long before the pastry painting was installed, the town had allowed other murals at a local shopping center, but in December the town found that three of those artworks are, indeed, signs that violate size limits. They went before the zoning board on Wednesday.

Young, who is being represented by the Virginia-based Institute for Justice, asked for $1 in damages. Meanwhile, he鈥檚 selling T-shirts as a high school art department fundraiser, saying 鈥淭his is Art鈥� with the painting on the front, and 鈥淭his is a Sign鈥� of a roadside 鈥淟eavitt鈥檚 Country Bakery鈥� sign on the back.

鈥淎s Conway officials have confirmed, the town does not consider a painting to be a 鈥榮ign鈥� if it does not convey what town officials perceive to be a commercial message,鈥� the lawsuit says. 鈥淏ut the town鈥檚 perception is that any mural depicting anything related to a business is a 鈥榮ign.鈥� This is governmental discrimination based on the content of the speech鈥� and the speaker鈥檚 identity, it said.

The lawsuit says the town鈥檚 sign definition is 鈥渋ncredibly broad,鈥� with no mention of murals in the code:聽A sign in Conway聽is 鈥渁ny device, fixture, placard, structure or attachment thereto that uses color, form, graphic, illumination, symbol, or writing to advertise, announce the purpose of, or identify the purpose of any person or entity, or to communicate information of any kind to the public, whether commercial or noncommercial.鈥�

Board member Luigi Bartolomeo said he thinks the pastry painting is art, not advertising. He read the definition out loud聽at the board鈥檚 meeting in August 2022, and said he agrees with a local attorney who called it 鈥渦nconstitutionally vague.鈥�

鈥淚 think it鈥檚 a very badly written piece of code here,鈥� said Bartolomeo, who recently retired. But Board Chairperson John Colbath said the board must work with the ordinance, which was approved by voters, and that there is a process to change that.

鈥淚f they had done a seasonal mural on the wall 鈥� covered bridges and sunflowers and what have you 鈥� and it did not represent what your business is in, then it would be more likely to be a well-respected piece of art and not construed as a sign,鈥� Colbath said at the August meeting.

He said to Young, 鈥淚 understand the art thing 鈥� and you look and you see a mountain 鈥� but the general public sees donuts on the front of the bakery.鈥�

鈥淚 think most of the people said it鈥檚 art,鈥� Young responded.

In its denial of Young鈥檚 appeals, the board concluded that the bakery won鈥檛 be negatively affected without the display.

鈥淭his supposed distinction between murals and signs shouldn鈥檛 matter,鈥� attorney Betsy Sanz of the Institute for Justice stated in a news release. 鈥淎fter all, nothing in the First Amendment distinguishes between art and commercial signs 鈥� or commercial speech of any kind.鈥�

The town and Young agreed in February to pause court proceedings 鈥� and any potential fines or charges 鈥� pending a vote on a revised definition that would allow the painting to stay. But it failed in last week鈥檚 elections, by an 805-750 margin,聽according to the town clerk鈥檚 office. The judge now wants to hear from both sides by May 10.

鈥淲e鈥檙e ready to keep going,鈥� Young said.

Town Manager John Eastman declined an interview, referring questions to town lawyer Jason Dennis, who said he would soon meet with town officials to discuss next steps.

Editor鈥檚 note: McCormack reported from Concord, New Hampshire.