Bad feelings have been rising in New Hampshire as a bakery owner and the town of Conway have taken a zoning violation to federal court. U.S. District Court Judge Joseph Leplante heard arguments from both sides on February 14, 2025. He held off on making a decision so attorneys could file additional briefs.
The concept of art is on trial as the litigants argue over a painting mounted on the roof of Leavitt's Country Bakery. Is it a mural? Is it a sign? The bakery's owner says the town's zoning ordinance violates his First Amendment rights. The town claims it's an oversized advertisement. Only one side will get a sweet ending in this battle.
Art or Advertising?
In 2022, local high school students wanted to do an art project. Sean Young, the owner of Leavitt's Country Bakery, had a large blank wall across the roof of his building. The result was a colorful painting of about 90 square feet mounted to the wall that featured a sun rising behind a mountain range consisting of donuts, muffins, cinnamon rolls, and other baked goods.
Both the owner and the artists were delighted with the mural. Conway town officials, however, weren't quite so pleased. According to Jeremy Gibbs, the zoning official who issued a citation, it wasn't a mural but rather a sign, thus violating town codes. Conway has a bustling tourism industry, with people going to resorts there to ski, shop, and look at the stunning scenery, particularly the fall foliage. As such, the town's aesthetic appeal is important to officials.
In court, Gibbs testified that Conway's code identified a sign as "any 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."
Because it contained baked goods, the town considered the painting a sign and an advertisement for the bakery below it rather than an art fixture. If considered a sign, it's four times too large according to town codes. The town's attorneys also cited that the sign posed a danger of falling and injuring someone and that the bright colors posed a "distraction" for people driving by.
Lawyers for the bakery countered that if the painting was of actual mountains instead of a range made up of baked goods, the piece would become a mural and no longer be considered oversized or a threat to fall. They also noted that the town codes don't have a provision outlawing bright colors.
Sometimes a Cruller Is Just a Cruller
In the lawsuit, Young alleges that Conway's zoning ruling is a violation of his free speech rights under the First Amendment. His refusal to alter or remove the painting after exhausting his appeals with the zoning board leaves him open to misdemeanor charges and fines. In addition to being permitted to keep the artwork over his bakery, Young is seeking $1 in damages.
Town officials claim that sign size limits are vital to preserving Conway's beauty. The trial was paused for votes within the town to alter or add ordinances.
While one was voted down for being too broad, voters passed a 2024 ordinance that gives zoning and planning boards more authority to approve the theme, location, and design of future art projects and signs without making "an intrusion into the artistic expression or the content of work." The new ordinance doesn't apply to Young's case.
Beauty is in the eye of the beholder, but the fate of Leavitt's Country Bakery's painted mountain range of baked goods rests in the hands of Judge Leplante. His ruling will settle this sticky (bun) situation.
Related Resources
- Vermont Law School Sued for Removing Artist's Murals (FindLaw's Practice of Law)
- Zoning Law (FindLaw's Land Use Laws)
- 2nd Circuit Upholds NYC Graffiti Landmark as Protected Art (Findlaw's Federal Courts)
