Standing outside Leavitt’s Country Bakery in Conway on June 14, 2022, are (from left) Kennett students Kellie Severy, Corey Taylor, Morgan Carr, Emma Gallant, art teacher Olivia Benish, bakers Kristine and Nick Garrison, Kennett senior Ben Rieser, and bakery owner Sean Young. (Rachel Sharples/Conway Dailuy Sun)
CONCORD — The protracted legal dispute over the Leavitt’s Country Bakery baked goods mural in Conway came to a head at a federal bench trial last Friday.
In a bench trial, the judge decides the verdict, not a jury.
What started as a disagreement over a large plywood painting of a sunset behind a mountain range of giant pastries eventually became a full-on legal fight over First Amendment free speech rights that captured wide attention.
National news outlets like CBS Evening News, The Associated Press and FOX News all ran reports on the trial. Reporters from the AP and Union Leader were in the courtroom.
Attorneys representing Leavitt’s owner Sean Young and the town of Conway spent last Friday making their final arguments to U.S. District Court Judge Joseph LaPlante to determine whether Young’s rights are being violated by the town.
After hours of testimony from multiple witnesses, LaPlante told the attorneys that both sides would have one week to submit a final 12-page briefing. It is not clear when LaPlante will render his verdict.
It began in 2022, when Young worked with Kennett High School art teacher Olivia Benish and her students to create a mural to decorate Leavitt’s facade. Prior to the painting, the bakery had a small, round, “directional sign” over its front entrance. Above the porch was a blank facade of painted redwood.
Young helped secure plywood sheets, and Benish’s students painted the sunset-pastry scene. A smaller sunset motif was made for the porch.
After the artwork was finished, Young held a public reveal ceremony that was covered by The Conway Daily Sun.
However, in June of 2022, Jeremy Gibbs, the town’s assistant zoning officer and building inspector at the time, cited Young for the painting due to its size. Local zoning ordinances dictated that signs in Conway cannot exceed 25 square feet. The painting was nearly four times that, but Young argued that it was a mural, not a sign, and therefore exempt from the ordinance.
On Aug. 17, Young went before the Zoning Board of Adjustment to appeal the citation. At that meeting, ZBA member Luigi Bartolomeo called the ordinance “a very badly written piece of code” and sympathized with Young, but ultimately agreed with the board’s decision. Bartolomeo also suggested to Young that he apply for a variance on the spot.
“Do it right now, and you’ll probably get it,” the minutes read.
But during Friday’s testimony, Young said he didn’t feel confident applying for a variance then and there without paperwork.
“Looking back, maybe I should have just gone forward right then years ago,” Young testified.
Instead, Young submitted the paperwork for a variance a month later and was denied.
With no recourse besides compliance, Young sued the town for one dollar in damages and the right to keep the painting up. So far, the sign remains standing until the matter is resolved. Young initially faced fines of $275 per day and criminal charges.
Attorneys representing Young at Friday’s bench hearing included the Institute for Justice’s Robert Frommer, Elizabeth Sanz, William Aronin, Bobbi Taylor and John Crabbs of Cooper Cargill Chant.
The town was represented by Brooke Lovett Shilo, Madeline Matulis, Russell Hilliard of Upton and Hatfield and Jason Dennis of Hastings Law.
In October, both teams expressed a desire to keep the matter from going to trial, but Judge LaPlante disagreed, and moved for a bench trial.
The trial was originally scheduled to start Wednesday and end Friday, but perhaps due to weather concerns, it was shortened to just Friday, Feb. 14.
In her opening statement, attorney Sanz, speaking for Young, said: “We want to take the opportunity to say the town of Conway can regulate signs, it can tell big box stores they can’t have big signs, prohibit neon signs, signs 100 feet in the air, but it can’t regulate unevenly, it can’t pick and choose. And that’s what they did.”
She continued: “What the town has done is enforce based on content. Their definition of a sign is very broad, it just doesn’t work and they don’t enforce it that way,” Sanz continued. “They look at a display, if town officials perceive the sign communicates something going on inside the building or near it, then it’s a sign, otherwise it’s totally unregulated. That is a free speech restriction.”
“The town has to treat everyone equally,” said defense attorney Brooke Shilo. “It can’t ignore ordinance in respect to Leavitt’s and apply it to others. That means if there was no restriction on signage in the municipality, it’s not hard to imagine a roadway cluttered with signage.” Shilo continued. “Common sense tells us excessive signs can limit drivers’ views and distract drivers. It can distract from natural beauty.”
Many of the arguments focused on the town’s definition of a sign, which reads: “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.”
Judge Joseph LaPlante
LaPlante agreed the definition of a sign seems incredibly broad, and questioned the defense. “A white field with a black dot is information,” LaPlante said to Shilo. “That’s a sign? ... Also can you describe for me a mural that would not be a sign under the ordinance?”
“If we read the definition technically, it’s hard to articulate something not conveying information,” Shilo responded.
“The point is as written, I think murals are covered by the ordinance,” LaPlante said.
Meanwhile, the town’s attorneys said Young’s sign was simply too big. They also cited principles of safety and preservation in combating excessive signage in town.
“(The ZBA) doesn’t consider who created the sign, its artistic merit, or whether the town likes it,” argued Matulis for the town. “The evidence shows this is precisely the process applied to Leavitt’s display, but also the process applied to similar signs making a determination to commercial and non-commercial entities. As a sign, it’s just too big, it’s four times the limit. If it was smaller, it would be permitted.
But LaPlante said: “Everything is a sign under this ordinance. If it was commercial, would it be permitted if it was smaller? If you count the smaller sign over the porch, that would be two signs — no one ever talked about the sign code. You don’t know why the number of signs is not an issue?”
“The size is the main concern,” Matulis said.
Size was also brought up during the testimony of Gibbs; however, some of the ZBA minutes argued that the content of the mural, aka, the pastries were the problem.
ZBA member John Colbath was quoted from the Aug. 17, 2022, meeting as stating that if the artwork was a “seasonal mural” depicting “covered bridges and sunflowers” and did not represent what was being sold inside the bakery, it would not be construed as a sign.
“I just want to make it clear that the town’s position was solely because of the graphic of the doughnuts and muffins and all that that brought into it,” said ZBA member Jonathan Hebert during the 2022 meeting.
“If it was the sunshine with the mountains ... no issue.”
“If the high school students had painted regular mountains with sunshine on them, it would have been OK?” Sanz asked Gibbs during his testimony.
“It’s hard to say,” Gibbs said.
“Normally we’d have an application to make sure it didn’t fit the definition of sign to review,” Gibbs said.
LaPlante later recalled Gibbs back to the stand after his testimony and said: “Having been through this litigation now and thought about it, it seems to me that the sign code was being enforced incorrectly by you in this situation, and by the town overtime,” the judge told Gibbs.
“Is that something you agree with or disagree with?”
“I feel that I disagree,” Gibbs said. “Because I looked at the Leavitt sign, I specifically looked at the definition, the wall sign definition, and it looked like it fit.”
Judge LaPlante referenced a blown-up placard with the town’s definition of sign on it.
“So if it communicates any information whatsoever, isn’t it still a sign?” LaPlante said.
“If it had depicted just mountains, or a black square on a white field isn’t that conveying information of some kind, so it wouldn’t make any difference, would it, if it depicted baked goods or mountains and the sun would it?” LaPlante continued.
“I’m not critiquing how you’re doing your job, or how you’ve conveyed it today, but it’s not your view that you were perhaps enforcing the sign code incorrectly?” the judge asked.
These articles are being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org.