A Brookhaven Fields homeowner was ordered by city officials to remove a mural painted on a wooden fence enclosing his yard because they say it violated a sign ordinance by being in the public right of way. The mandate came days after the city attorney advised the City Council the mural was protected by the First Amendment.
A constitutional attorney says the city could be “traveling on thin ice” by choosing to restrict public art just because it is in the right of way when the action could be perceived as trying to regulate free speech.
Marty Scheufele, who lives at the corner of Sylvan Circle and Cartecay Drive, said he wanted the mural painted to cover his “ugly fence” and to give passersby something nice to look at. The city’s apparent confusion over how to regulate the mural is disappointing, he said, but he intended to comply and paint over the mural.
“I guess they changed their stance,” he said after receiving a notice from code enforcement on July 25 that he needed to remove the mural. He said code enforcement had told him the week prior the mural was legal.
“The mayor got a lot of flack … or something. It is what it is,” he said.
The colorful mural included a skyline painted against a pale blue background and was the first known artistic mural on a residential property in the city. There is currently no law on the city’s books dealing specifically with murals or public art on private property.
Community Development Director Patrice Ruffin said in an email the mural was determined by city staff to be a sign, and because it was being painted on a fence located in the right of way, it was illegal.
“The determination has been made that the mural meets the definition of a sign, which is prohibited within the right of way where the fence is located,” she said.
Ruffin’s statement was the opposite of what City Attorney Chris Balch told the City Council just days earlier.
At Mayor John Ernst’s July 18 town hall, Ernst was asked by one of Scheufele’s neighbors if the mural violated the sign ordinance. She told him she worried about traffic accidents happening at the corner as people stopped to look at the mural. She also said she was concerned the public art would sink property values.
Ernst told her Balch had looked into the matter after the city received some complaints and determined the mural is not considered a sign that can be regulated by the city. The property owner’s constitutional rights entitled him to paint art on his fence, Ernst said.
“We’ve not had any art regulations, so it becomes a massive First Amendment issue,” Ernst said at the town hall. “This is a very new issue, so I’m sure we will be talking about it more.”
An open records request for Balch’s original written opinion on the mural being legal was denied based on attorney-client privilege. It is unclear whether Balch issued another opinion regarding Ruffin’s decision that the mural was prohibited for being in the right of way.
Scheufele said he was cited for violating section 21.62 of the sign ordinance. This section covers the types of signs prohibited, such as one placed in the city’s right of way. But what is the definition of a sign? At the town hall, Ernst said Balch explained that if the mural included a commercial message for a product such as beer, for example, the city could regulate the mural as a sign.
Gerry Weber, a constitutional attorney, said governments have latitude to regulate the location of signs on government property, such as right of way. But any content-based restrictions on speech would likely be unconstitutional even if done by regulating the location of the sign, he added.
“All this is to say is it is a complicated question,” Weber said. But governments regulating based on content are “traveling on thin ice,” he said.
Weber represented several property owners and artists in a 2017 federal lawsuit against the city of Atlanta after the city tried to regulate murals on private property, such as those painted on the side of commercial buildings throughout the city.
Atlanta wanted to require artists to go through a complicated application process to be approved to paint a mural on public property. The city also threatened to paint over existing murals if property owners did not go through a multi-step process to gain approval for their public art.
The city settled shortly after the lawsuit was filed and the regulations were dropped. Part of the answer in the Atlanta lawsuit was that most government entities don’t regulate murals on private property, Weber said. He also questioned why a city would restrict a mural in the right of way.
“Is there really a need to regulate murals in the right of way? What is the need?” he asked.
He added it would be difficult to find the cause of any traffic accidents if they were due to a mural.
In an interview after Scheufele was cited, Ernst said Councilmember Bates Mattison pushed for the mural to be removed. Mattison represents Brookhaven Fields and raised questions about the mural after he received complaints from some of his constituents.
“The person from that council district had a big problem with it,” Ernst said. “It’s on him.”
Mattison said he asked for further review after Balch issued his opinion due to concerns from some of his constituents. At the July 23 council meeting, he said he was told by city administrators the fence was in the right of way and in violation of city ordinance. Mattison said he and other council members supported the city enforcing the right of way ordinance.
“[W]e can’t have people painting or putting art in the right of way without some kind of city approval,” Mattison said. “That’s why we have to develop this mural policy.”
Scheufele said the idea for a mural came after the city built a new sidewalk last year along Cartecay Drive, a sidewalk he acknowledged he did not want. As part of construction, the city removed many shrubs and landscaping growing along the fence to reveal the “ugly” fence underneath, he said.
Painting a mural, he thought, would make the fence more pleasant to passersby.
“My intention was for people to enjoy it when they walk by with their dogs. But if it’s causing that much of a problem, then I’m not going to mess with it,” he said. “I want to respect my neighbors.”