Zoning Law Extreme
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. The project took 80 hours for the students to complete, which they put in over the span of five weeks.
Unfortunately, a week later a town official showed up to the bakery and informed the Owner, Mr. 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.
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. 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.
The primary argument against zoning laws revolves around property rights (though in court it’s often more effective to argue the First Amendment angle). 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.
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
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.
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 we constantly elect and employee would do well to reflect on these words. When zoning becomes so prevalent and convoluted you need an attorney to fight to protect your property rights, then we might have a need to reevaluate. However, until we do please feel free to contact Winslow Law at 843-357-9301 if you need help protecting your property interest.
May God Bless You, Your Business, and this Country,
Tom Winslow