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| Kennett High School student Ben Rieser, student Emma Gallant, art teacher Olivia Benish and student Morgan Carr pose with the mural they painted for Leavitt’s Country Bakery (Justin Chafee) |
First - The object in question is, IMO, a sign because it satisfies the description in the ordinance.
Second - So fucking what?
Third - Rules is rules
Let the wrangling begin.
In a small New Hampshire tourist town, the front of a roadside bakery is adorned with an image of the sun rising over a row of doughnuts, muffins and other pastries.
Whether that painting is a mural or a sign will determine whether the high school students who created it will see it taken down.
The Conway, N.H., community has been captivated for months by a dispute, previously reported by the Conway Daily News, over whether the art project is considered a sign under the municipal code. The town says yes, because the painting shows baked goods — and that the image exceeds the legal size limit for signs. The owner of Leavitt’s Country Bakery says no — and, in a federal lawsuit, contends the town ordinance violates the First Amendment.
“We didn’t want to take the mural down,” said the owner, Sean Young. “At first I was just upset for the kids, and I didn’t feel that they were right in telling us that it wasn’t art.”
Later, Young said, the disagreement became a matter of principle. In the lawsuit filed last month, he argues that the ordinance is unconstitutional. The suit claims that because the law defines a sign by what images it shows, it discriminates based on the content of the speech and the identity of the speaker.
Conway officials say they are upholding the will of the citizens who voted to pass the sign ordinance, and they point out that they have not enforced the rule against Leavitt’s through fines or other consequences.
The saga began last spring, when a friend of Young’s heard that another friend, local art teacher Olivia Benish, wanted to get her students involved in the town and noticed the bakery was essentially a blank canvas. Young had bought the decades-old Leavitt’s, once deemed “the unofficial town hall of Conway,” in 2021 and quickly led it to the prime spot on a list of best doughnuts in New Hampshire.
When he connected with the five Kennett High School students, he gave them free rein to create any image. The team talked about the need to avoid painting the Leavitt’s name or logo on the mural, Benish said. They did not want anyone to confuse it for a sign.
“I thought we were aware,” the teacher said. “Obviously, I was not completely aware, because I had never imagined it becoming what it has become.”
Benish brought Leavitt’s doughnuts to school one day, and the group began brainstorming. They considered ideas centered on the character of their northeast New Hampshire region, which attracts skiers in the winter and hikers and water tubers in the summer.
Maybe, the students thought, the mural could show people floating down the Saco River on doughnuts. Or it could display the sun as a doughnut over the White Mountains, which blanket roughly one-quarter of the state.
When the group landed on a design, they spent about five weeks painting it on exterior-grade panels and sealing them with primer. A community member hung the panels on Leavitt’s — the first time Young saw the image. He said he had not wanted to dictate to the students what they should create.
“There were plenty of people in town who wanted to be on committee to decide what the kids paint,” said Young, 51. “I said it was up to the kids.”
About a week after the painting’s unveiling, a municipal code enforcement officer stopped by Leavitt’s. He had seen an article about the painting in the local newspaper and felt compelled to act. The mural was actually a sign, he said, and it was roughly four times as big as was allowed.
Young could not afford the $275 per day that he could be fined for disobeying the statute. He was still finding his footing with the business, he said, and had not even paid himself a salary yet. He also did not want to risk being charged with a misdemeanor for violating the code.
So in August, Young urged Conway’s zoning board members to overrule the enforcement officer’s assessment that the painting was a sign. They denied his request.
Then Young requested a variance to keep the painting on the store. The board said no. When Young asked for a rehearing, the panel turned him down again.
To town leadership, getting Young to remove the painting is a matter of fairness to the residents who approved the zoning provisions. Zoning board chair John Colbath said the rule, as written, considers an image on a business to be a sign if it represents a product that the business sells.
“It’s a zoning ordinance, which was enacted by the legislative body, which are the voters of the town who are here,” he said at the August meeting. “And there is a process for changing it if they don’t like it.”
Luigi Bartolomeo, another zoning board member, said the ordinance is painfully vague. Still, he voted to uphold the code enforcement officer’s judgment that the painting is a sign.
They died leaving labors of love undone. Strangers complete their work.
Throughout the process, many in the community rallied behind Leavitt’s. More than a dozen customers each day have been expressing support, Young said. A local tattoo shop asked Benish if it could raise money for the high school art department. Residents packed the room for the August zoning board meeting.
“I just feel that the gray area of the sign definition — I don’t feel something related to kids doing artwork is the time to be trying to define that,” Shawn Foss, a longtime Leavitt’s customer, told the board.
Benish said she is disappointed by the controversy. She feels sorry for the students who poured their hearts into the painting, and she wonders whether she will get a chance to lead other public art projects.
One of Benish’s students who worked on the painting feels that the situation has dragged on for too long. Ben Rieser, 18, said that at first he loved seeing his work displayed in town. But he and the other students accidentally created a sign, and Leavitt’s should have taken it down as soon as the mistake was realized, Rieser wrote in an assignment completed for his English class and shared with The Washington Post.
“I don’t want to see it up there any more,” he wrote, “because it has turned into something political and not artistic.”
In early January, the lawsuit says, the town sent Young a letter threatening enforcement of the ordinance. Town attorney Jason Dennis said the municipality asked Leavitt’s to take down the painting temporarily and never got an answer.
With the help of the Institute for Justice, a libertarian-leaning public interest law firm, Young filed a legal challenge. A judge this month ordered the town not to enforce the ordinance until further notice.
Both sides of the dispute see a potential solution ahead: A proposed ordinance scheduled for a vote in April would define a graphic as a sign only if its main purpose is to advertise. Young and the town agree that if the rule takes effect, the students’ painting probably would no longer be considered a sign.
“For me, my legal opinion is that if this passes, Leavitt’s sign could stay,” Dennis said at a planning board meeting last month.
If voters reject the proposal, Young said, the lawsuit will continue. He sees the disagreement as a free-speech issue, and he does not want to let down the people who are rooting for him.
“Now that everyone’s watching,” Young said, “we have to follow through with this.”
