CONCORD, N.H. — Lawyers in a First Amendment lawsuit that pits a New Hampshire bakery owner against a town zoning ordinance over a large painting of doughnuts and other pastries are hoping that a judge can resolve the matter after voters didn't.
“Unfortunately, the saga isn’t over yet,” bakery owner Sean Young said.
Both sides “agree that they will have to litigate this controversy,” according to a joint statement filed late Wednesday in federal court.
Last year, high school art students covered the big blank wall above Leavitt's Country Bakery in Conway with a painting of the sun shining over a mountain range made of sprinkle-covered chocolate and strawberry doughnuts, a blueberry muffin, a cinnamon roll and other pastries.
But the town zoning board decided that the painting was not so much art as advertising, and so could not remain as is because of its size. At about 90 square feet (8.6 square meters), it's four times bigger than the local sign code allows.
Faced with modifying or removing the mural, or possibly dealing with fines and criminal charges, Young sued in January, 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’t a bakery.
Both sides agreed in February to pause court proceedings — and any potential fines or charges — pending a vote on a revised sign code definition that would allow the painting to stay. But that failed to pass in town elections in April. The local newspaper suggested the residents generally liked the painting, but that the proposed definition changes “would only further complicate enforcement."
Lawyers met last week.
“The town articulated that it continued to view the painted panels affixed to a portion of the Leavitt’s facade as a ‘sign’ prohibited by the sign code. As such, there remains a live controversy between the parties that requires this court's attention,” Wednesday's statement said.
The town will have until July 21 to formally respond to Young's lawsuit and then both sides will meet by Aug. 4 to submit a report to the judge, according to the joint statement. Both sides “continue to believe there will likely be few if any contested issues of material fact,” it said.
Young, who is being represented by the Virginia-based Institute for Justice, asked for $1 in damages.
