Legal: “Town Tells Donut Shop That Mural Painted By Local High Schoolers Is Illegal, Threatens Fines”

Legal: “Town Tells Donut Shop That Mural Painted By Local High Schoolers Is Illegal, Threatens Fines”

Photo: Institute for Justice

“High school students worked for weeks on an art project for a beloved local bakery in Conway, New Hampshire. When their mural of a sun rising over a mountainscape of assorted pastries was unveiled, it was reported by the local newspaper and widely praised. But there was someone in town who saw things differently: the local code enforcer.

What he saw was an ‘illegal’ sign that needed to be torn down or painted over. That’s because, according to the town, if a mural depicts anything related to what a business does, it is a sign and subject to strict regulations. For instance, if the exact same mural were painted on a tire shop across town, or even at the farm stand thirty feet away from the bakery, it would be legal.

Leavitt’s Country Bakery is an institution in Conway. For 45 years it has been admired for its baked treats, even being named the “Best Doughnuts in New Hampshire” by a state television station last year. Sean Young had been a loyal customer for years. When the original owners decided to sell, most potential buyers had a different vision for the property. But Sean wanted to keep the bakery’s legacy going and purchased it in 2021…

The code enforcer’s warning came as a complete shock and Sean first thought that the town might grant an exemption. Despite overwhelming support for the students’ artwork, the town refused to grant an exemption and said that daily fines of $275 would start in February. The town also reiterated that the mural would be completely legal if Sean moved it from the bakery to a nearby farmstand…

Fortunately for Sean, there is relatively recent support in the federal courts for his new lawsuit. The Lonesome Dove saloon in Mandan, North Dakota, was ordered to remove a mural because it included the name of the business in the art work. After the owners sued with Institute for Justice, a judge issued a temporary restraining order against the city, finding that a ban on commercial murals was “unlikely to survive constitutional muster.”

As Conway’s zoning board was considering whether to find the mural illegal, one of the members opined that it would be a great civics lesson for the students to have to seek permission from the government for their art. Now Sean intends to teach the town a civics lesson about freedom of expression. Speaking at a press conference announcing the new lawsuit he said, ‘I’m here to stand up for artists everywhere … The First Amendment is the cornerstone of American democracy.’…

Sean received some good news shortly after announcing the suit. Conway agreed not to try to fine him while the lawsuit is going on. It’s a small victory, preserving the students’ art in place for at least a little longer.”

– Andrew Wimer, Forbes

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Commercial Use of Public Parking: “St. Pete Beach restaurant granted outdoor dining ‘parklet’”

Commercial Use of Public Parking: “St. Pete Beach restaurant granted outdoor dining ‘parklet’”

Illustration: City of St. Pete Beach

“After a series of commission meetings and design changes, Chill Restaurant at 357 Corey Ave., which bills itself as an American fusion-style eatery and bar, was finally granted permission to have permanent outdoor dining using a so-called parklet.

During a hearing at the commission’s Nov. 15 meeting, debate and discussion by some residents centered around whether Chill should be able to use three or four city-owned parking spaces in front of the restaurant, as well as whether the city should use taxpayer money to defray some of the cost of building the outdoor seating area.

At the height of the COVID-19 pandemic, the city granted some restaurants and bars temporary permission to offer outdoor dining, since indoor seating was restricted and not favored by patrons.

Now, with outdoor dining still gaining in popularity, the city has provided a way for restaurants and taverns to offer outdoor seating in ‘parklets’ on a permanent basis. Chill subsequently applied to feature permanent parklet seating in front of the eatery.

City Manager Alex Rey said the Chill parklet has been redesigned so the city will lose only four parking spaces instead of five…

Commissioner Mark Grill, who opposes using public funds to defray the cost of the parklet, noted the permanent parklet would cost $100,000, while the semi-permanent option would be $50,000.

With the $50,000 option, Chill would pay the $50,000, with the parklet stricture belonging to the eatery. Chill would be able to take four parking spaces for its outdoor seating and pay rent of $1,500 a month, or 10 percent of the revenue from outdoor tables, for three years of the contract.

With the $100,000 permanent option, Chill would pay $50,000 with the city making up the difference up to almost $100,000. In this scenario, the city would own the parklet.

Grill said in speaking with the city manager he was told the permanent parklet will be nicer looking and constructed with more sturdy materials. It will also include curbing with a multimodal bump-out and improved drainage.

Mayor Al Johnson added, ‘It will be aesthetically a lot better.’…

Responding to criticism by a member of the public as to why the city is giving a private business an interest-free loan with taxpayer money, Johnson said, ‘This is like any public-private partnership. We’re creating an asset for the city, partially paid for by the client and partially by us, and it’s going to be an income-generating asset, so I don’t see a problem with it.’…

After discussion, the commission voted 3-1 to give permission for Chill Restaurant to install a permanent outdoor dining parklet, with Grill casing a dissenting vote and commissioner Melinda Pletcher absent.”


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LEGAL: “Federal appeals court backs Florida man in religious sign dispute”

LEGAL: “Federal appeals court backs Florida man in religious sign dispute”

“A federal appeals court Tuesday sided with a man who challenged a Fort Myers Beach ordinance that prevented him from carrying a sign with a Christian message on the town’s streets.

A three-judge panel of the 11th U.S. Circuit Court of Appeals said a district judge should have granted a request by Adam LaCroix for a preliminary injunction against the ordinance, which barred portable signs.

The panel did not agree with an argument by LaCroix that the ordinance was a ‘content-based’ constitutional violation. But the judges said the town’s prohibition on portable signs likely violated the First Amendment.

‘The rich tradition of political lawn signs perhaps is surpassed only by America’s history of marches and rallies dotted with handheld signs and placards of every imaginable description and covering every conceivable political message,’ Judge Stanley Marcus wrote in a 26-page opinion joined by Judges Jill Pryor and Britt Grant. ‘Images of demonstrators holding portable signs immediately spring to mind: the March on Washington, the Women’s March, the 2000 presidential election protests in Dade County and Tallahassee, the Black Lives Matter protests in nearly every city in the country, the Tea Party protests, the Women’s Suffrage March and many more. All of them involved people carrying portable signs. And all were easy to create and customize. If the town’s prohibition on carrying all portable signs were to stand, all kinds of expressive speech protected by the First Amendment would be barred.’

The opinion said Fort Myers Beach passed a sign ordinance to try to prevent visual blight and barred portable signs. It said LaCroix in October 2020 was ‘peaceably attempting to share his religious message on a public sidewalk’ when he received a warning from a code-compliance officer about violating the sign ordinance. In December 2020, he received a citation.

‘Although the record (in the case) does not tell us precisely the dimensions of the sign LaCroix held nor its exact message, we know that LaCroix said he shared his ‘religious, political and social message’ which ‘is one of hope and salvation that Christianity offers,” Marcus wrote.

A town official subsequently dismissed the citation, but LaCroix filed a federal lawsuit alleging violations of the First Amendment, the Equal Protection Clause of the U.S. Constitution and a state law known as the Religious Freedom Restoration Act.

U.S. District Judge Sheri Polster Chappell last year rejected the request for a preliminary injunction, spurring LaCroix and his attorneys from the American Liberties Institute to take the case to the Atlanta-based appeals court.

The opinion Tuesday sent the case back to district court…”

— CBS Miami Team

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“Here’s your hurricane to-do list for large trees on the Space Coast”

“Here’s your hurricane to-do list for large trees on the Space Coast”

Photo: Sally Scalera, Florida Today
A tree that is too close to sidewalks, driveways or streets is prone to blowing over in a storm.

Photo: Sally Scalera, Florida Today
Call in a certified arborist if you find a root girdling a large tree in your yard.

“…Though I do not expect a bad hurricane season (blame it on optimism), it is always best to be prepared. If you own large trees that are 50 feet or taller, complete this checklist as soon as you can.

Location. Check to see if any large trees are planted less than 12 feet from a sidewalk, driveway or street. Any closer is not recommended, because trees can cause damage by lifting and cracking cement. If you do have a large tree planted too close, consider consulting a certified arborist to determine if the tree needs the canopy thinned because of a lack of proper rooting area.

Look for girdling roots. Walk around your trees to see if any girdling roots are visible. A girdling root will be growing on the surface of the soil, close to and around the trunk. Girdling roots can eventually strangle a portion of the trunk, which, if it wraps half-way around the trunk or more, could kill the tree. If a girdling root is present, consult a certified arborist…

Know your roots. Has there been any construction activity within approximately 20 feet of the tree trunk within the past 10 years? If large roots have been cut close to the trunk to make way for things such as a sidewalk or utilities, the tree may be prone to falling in the direction where the roots were cut.

Don’t scalp your palms. Never let anyone do a “hurricane cut” on your palms to protect them from being blown over during a hurricane. Palms, in general, fair well through hurricanes, but the practice of removing all but a few of the fronds can make the palm more vulnerable to damage during straight line winds or a hurricane.

A large canopy of fronds protects the terminal bud, but when most of the fronds are removed, the bud is more vulnerable to being snapped by the wind. Once the bud is snapped, the entire palm will die. So, do not let anyone remove green fronds, or fronds with both green and yellow tissue in the same frond. Only totally brown fronds should be removed.”

— Sally Scalera, Florida Today

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Tree Canopy: Key West editorial on mitigating the damage caused by preemption of local control

Tree Canopy: Key West editorial on mitigating the damage caused by preemption of local control

Photo: Linda Grist Cunningham, in Key West Island News

“Historically, the Key West tree canopy boasted little in the way of shade trees. We are an inhospitable, oolite limestone island in the middle of salt water. What green things we had were more scraggly than soaring, the results of birds and other creatures using the island as a bathroom while stopping over on ways elsewhere.

Then came the 1920s and 1930s, when garden clubs and botanical societies held tree giveaways and encouraged folks to bring back seedlings from their travels.

That’s how we ended up with so many mahoganies, royal poincianas and other canopy trees. They didn’t spring up magically; we planted them. Sadly, most often, not in the right place. Then we built houses and pools and streets right on top of their roots. We assumed they’d live forever.

Today, the Key West tree canopy faces two life-threatening challenges: (1) The trees planted 75-100 years ago are struggling; and (2) Florida’s determination to strip municipalities of their home rule powers…

On June 26, 2019, Gov. Ron DeSantis gutted Florida tree commission regulations when he signed HB 1159…

… during its 2022 regular session, the Legislature amended the 2019 law to replace “danger” with “unacceptable risk.” It said a tree poses an unacceptable risk “if removal is the only means of practically mitigating its risk below moderate as determined by the tree risk assessment procedures outlined in (ISA) Best Management Practices — Tree Risk Assessment, Second Edition (2017).” That complicated wording means some very specific things.

On July 1, when the amended law is in place, municipalities can use it to claw back some local control over tree removal. The amendment can become the first of three ways we can strengthen the Key West tree canopy:

1. File ethics violations with the ISA. Florida’s law now requires an ISA tree risk assessment, which now includes a detailed, on-site review by ISA-certified tree experts. Signing a deliberately inaccurate assessment is an ISA ethics violation. ISA will investigate and can pull the certification…

2. Approve removal permit requests and require replacement — on property whenever possible. The amended law, like its predecessor, forbids municipalities from requiring replacements for trees taken down under the law. But, if a homeowner can’t get a certified tree expert to certify that a protected tree is an “unacceptable risk,” then said homeowner needs a permit from the tree commission. If the tree commission says “no,” and if there’s an unethical tree expert or some fly-by-night dude with a chainsaw, that tree is coming down. No replacement. If the tree commission grants the permit, it can (and does) require replacement…

3. Declare a ceasefire on blaming the city. The state’s preemption appetite is the enemy. Let’s direct our frustrations where they belong. Join other groups in other Florida municipalities to advocate for our canopy. Plant the right tree in the right place — and take care of it…”

— Linda Grist Cunningham, Special To The Citizen

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Key West: City recognized by Tree City USA ten times!

Key West: City recognized by Tree City USA ten times!

Photo: Chamber of Commerce showing Key West’s official tree: the royal poinciana.

“…’Your community should be proud to live in a place that makes the planting and care of trees a priority, and you should be proud of a job well done!’ wrote the Tree City team in a letter announcing the recognition.

Karen DeMaria, the City’s Urban Forester, says she’s grateful for the recognition, one that the City has received ten times.

‘Our island’s canopy is vital to the quality of life of our residents and visitors,’ said DeMaria.

Each year on Arbor Day, the City urges property owners to plant a tree.

‘Trees on publicly and privately owned property within the city are economic and aesthetic asset to the citizens,’ says DeMaria, ‘because of their important and meaningful contribution to a healthy and beautiful community.’

Key West achieved Tree City USA recognition by meeting the program’s four requirements: a tree board or department, a tree-care ordinance, an annual community forestry budget of at least $2 per capita and an Arbor Day observance and proclamation.

The Tree City USA program is sponsored by the Arbor Day Foundation in partnership with the U.S. Forest Service and the National Association of State Foresters…”

— Key West Chamber of Commerce

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