Outside the Beltway: Zoning Czars Use Business Permits to Censor Art

Arlington County says the mural's content makes it a commercial sign subject to county regulations. (Courtesy of Institute for Justice)
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Arlington County says the mural's content makes it a commercial sign subject to county regulations. (Courtesy of Institute for Justice)

At a time when the economy is slow, you might think government officials would be happy to see new businesses start up. Arlington County Virginia, however, isn’t as welcoming as it could be. Whatever you do, don’t start a business there and decorate the exterior of your establishment with artwork relating to your business. If you do, Arlington’s zoning officials will probably be along to harass you.

Kim Houghton, owner of Wag More Dogs, can tell you all about Arlington’s zoning administrators. With the help of the Institute for Justice, Houghton has filed a lawsuit against the county for demanding that she trade her First Amendment rights in exchange for permission to open a business. 

Earlier this year, while preparing to open her dog daycare, boarding, and grooming business, Houghton commissioned a $4,000 mural to be painted on the back of her building, which borders a community dog park. Naturally, the mural depicts dogs at play. Before Houghton could open her doors, however, the county told her she wouldn’t receive the permits she needed unless she covered up the mural. The mural, said the county, was a commercial sign that was too big according to its regulations. The county even sent her instructions specifying the kind of paint she must use or alternatively how a tarp covering the mural must be secured.

The mural, keep in mind, has no words on it—just pictures of cartoon dogs, paw prints, and bones. And these pictures of cartoon dogs, paw prints, and bones cover up what had been an ugly cinderblock wall at the back of Houghton’s business overlooking a dog park.

That’s what Arlington County officials care about.

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One county zoning official sent Houghton an e-mail telling her that her mural could depict “anything … EXCEPT something to do with dogs, bones, paw prints, pets, people walking their dogs, etc.” Anything that relates to the business transforms the artwork into a commercial sign that can be regulated, according to the county.

So, if your business serves dogs, you can paint dragons on your building but not dogs. And, presumably, if you retail in exotic pets, you could paint dogs on your facade, but not dragons. Does that make sense? Isn’t banning some speech but not other speech (as opposed to regulating time, manner, and place) contrary to the First Amendment?

In fact, the mural had been up for four months before the county said it had a problem with the artwork—just before Houghton planned to open her business. The county eventually offered Houghton what it considered a reasonable compromise: She could leave the mural in place if she painted on top of it the words, “Welcome to Shirlington Park’s Community Canine Area,” in four-foot high lettering. To the county then, a mural that is a nuisance when displayed by a private citizen becomes perfectly acceptable if the government can make the artwork its own. Shouldn’t that tell us something about whether there’s really a valid government interest in regulating this form of expression?

The Institute for Justice’s lawsuit contends that, because Arlington’s sign laws require zoning administrators to inspect artwork in order to determine what the message of the artwork is, they constitute a content-based restriction on free speech that is impermissible under the First Amendment. The Institute for Justice also contends that because the laws are so vague, they allow selective and discriminatory enforcement, which has a chilling effect on free speech.

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Houghton had the guts to follow her passion for dogs and start a business. But rather than thank her for adding to the economy, the county government has asked her to trade away her constitutional right of free speech. Fortunately, IJ is in her corner. Writing in the Washington Times, Houghton says: “If it weren’t for IJ, I would have had to give in because zoning officials are that intimidating and that powerful. Arlington County officials have the power to close my doors forever at their whim, and they have shown they are not shy about using that power.”

Hopefully, with IJ’s help, Houghton will be able to tear down that ugly blue tarp covering her mural.

Source material can be found at this site.

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