The Issue: Zoning Laws and Artistic Expression
The Issue: Displaying Art in Privately Owned Spaces
Courts have long affirmed the right of cities to protect architecturally significant areas through the implementation of zoning laws, historic districts, and preservation boards. Typically, these ordinances require obtaining a permit from a local authority before making changes to the outside appearance of a building. Such ordinances have been justified by the laudable goals they serve: the preservation of historic sites, the maintenance of aesthetic beauty, and the elevation of property values. Yet local preservation efforts inherently limit what private property owners may do with their property by restricting both the architectural designs of buildings and the outdoor display of art to conform to the general appearance of the area. Zoning laws and historic preservation efforts may not, however, be a guise for restricting art on the basis of the personal tastes of local officials. Such laws must be neutral with respect to the message a work of art conveys. Moreover, such laws must be written with specific, objective guidelines that prevent local officials from arbitrarily approving or denying a permit according to their personal preferences.
The Case: Burke v. City of Charleston
Artist Robert Burke was commissioned to paint the mural shown above on the exterior wall of a new bar and grill to be opened in the Old and Historic District of Charleston, South Carolina. Burke failed, however, to obtain a permit to paint the mural as required by local ordinance. The mural was then covered over with wooden boards as Burke submitted a request for the necessary permit. Upon review of the request, and after extensive public debate, the Charleston Board of Architectural Review denied approval of the permit, holding that the mural’s large size and ‘garish’ colors were not compatible with the décor of the surrounding area. Burke sued the City of Charleston, claiming that the language of the local ordinance under which the mural was disallowed was too vague. He argued that such vagueness had allowed local officials to grant and deny permits based on their personal tastes without any reference to what was historically accurate or aesthetically consistent for the area. Although the case reached the U.S. Court of Appeals for the Fourth Circuit, the central issue was left unresolved. The court held that Burke did not have the right to bring the suit because the restaurant owner, not Burke, was the owner of the artwork. The mural remained covered by wooden boards until it and the restaurant were destroyed by a fire.
http://www.tjcenter.org/ArtOnTrial/historic.html
Untitled Outdoor Mural
(approximately 8' by 12')
by
Robert Burke
