12.17.2010

Wherein Der Schatten Tag-Teams Siouxsie Law's Dog Post*....

This morning, your Not-So-Humble Author was browsing the RSS feed, when he happened across an interesting post by Fellow Traveler, Siouxsie Law, "Dog Groomer Sues To Keep Gigantic Dog Mural on Her Building".




 Seriously. Look at this fucking thing. 
As Justice Potter Stewart said of pornography, "I'll know it when I see it". 
Ditto with art, and this fails the eyeball test.



Therein, Siouxie Law details the alleged First Amendment issues posed by the owner of a dog grooming business in Virginia. You'll have to read her post for the details, but the long and short of it is as follows:
  • Woman owns said business that abuts county lands, the latter of which also happens to be a community dog park.
  • Groomer then paints an abortion of an advertisement, not including her business' name but featuring stylized cartoon canines frolicking with reckless abandon, and it runs a full sixty (60') feet by sixteen (16') feet. Or, roughly, the size of a 1L's underclothes after a semester of inactivity, fast food and cheap beer. Or, for the rural folks, about the size of a small mobile home. (Appalachia, holler!).
  • County says, "that thing is hideous, and, despite your insistence that it's "art", it's very much an advertisement for your business." 
  • Nevertheless, County agrees to compromise: Groomer can keep her memento to bad taste so long as she paints "community dog park" above it, or some other such verbiage and/or indicia of non-profit motive.
  • Groomer resists; then files a suit against the County claiming that her rights to First Amendment expression have been abridged/infringed/got butthurt.




 First Amendment doctrine? Again?! AARGHGHGHGGGHHH
My feelings on First Amendment Doctrine are legendary (in my own fevered mind, at least).
Incidentally, I've been dying to use this picture. 


I will let Siouxsie handle the First Amendment ramifications (Spoiler: There's no case) because A) I'm a property law dork, and B) there are so many better reasons to tell this women to get drowned in effluent.

So, I did a lil' digging, because I am both a nerd and an insomniac, and it appears as though Virginia has some unusual party wall statutes. For those who don't know, a party wall is the legal fiction that both persons own a wall if/when it happens to separate properties. The ownership interest is of note, because even if I construct an improvement (fancy speak for building/dwelling, etc), and divide our land with the exterior wall, you -as my neighbor- still have interests in that wall. So it's not just a "party wall", but rather a "parti-" wall, e.g., partition.

This means that the non-owner of the parti wall still has rights and interests in the structure and can enjoin your use of it and/or seek compensation for loss of it (especially if it's such a tacky fucking 'mural' like the one above). And, as you would expect with such a legal fiction, there are some odd results that can follow. For instance, in Virginia, whence this case hails, there is an A.G. opinion that an owner of fee land, upon which a party wall was constructed, can't even videotape the shared wall because it would violate the State's wiretapping statutes as to the non-owner.








 Property law at 4:00 a.m? Won't you think of the puppies?



Now, look back up at the picture graciously hotlinked borrowed from Siouxsie's post. It appears as though the Groomer's building, including the dripline of the kennel's ceiling and any setbacks, probably run into lands of County. In other words, the County is probably considered a party/parti- owner, or adjacent owner, of the land upon which the party wall touches/divides. Under most zoning laws, the County is then likely a "party wall owner". 

I'd have to see the zoning ordinances, and the facts of the complaint, but homework and research are for suckers, especially when it's much more fun to speculate wildly and irresponsibly. This means that the County has rights to and interests in the Groomer's wall above, including enjoining this special needs painting above, and not having to subject other tax payers to a 960 square foot advertising (hell, that's a large Manhattan apartment!).

Wait a second, sayeth the average American. You mean if I share a wall, the adjacent landowner can stop me from painting tasteful cartoons upon it? Or, the County can stop me from using my own property in a commercial manner in which it was zoned for?

Absolutely.



Unbeknown to most, the origin of "asplodes" has its roots in David Cronenberg's "Scanners"





Siouxsie's post makes excellent mention of zoning laws and advertising regulations as a perfectly legitimate exercise of the State's police powers (these are, after all, nothing more than very neutral time/place/manner restrictions on speech, be that speech commercial or otherwise). The examples she provides are Vegas, Staten Island and Times Square. All very good examples, I add, of how commercialization and/or "speech" can absolutely blight a city.

But why can these be regulated? Simple: members of the community have a right to not be exposed to monstrous advertising which gobbles up the skyline and/or diminishes the community characteristics. This is particularly true in areas where natural beauty is an attraction, or even for reasons as OCD as ensuring that certain areas of town all have the same facade/general structural/appearance.

Hell, I'll even through in a few more examples to help make her point:



 Hate me.


See the above? That's the view outside my place on the Kona/Kohala Gold Coast; aptly named so, as you can tell. Imagine a towering vacation rental, such as you see in my old Southern  stomping grounds, the Gulf Coast.



Sweet home.



Now, what's the difference here, although it is hard to tell initially? For a start, Hawaii County forbids the erection of structures exceeding forty feet. For any reason. That is so that people who aren't blessed enough to live right on makai (ocean-side) can still see the coast, the shoreline, the sunset, the horizon, scantily clad attractive people. 

And, the differences extend in a way salient to Siouxsie's point: For instance, on the same Kona/Kohala Coast, where the Shadow makes his living (and a bastion of artists, I add), no signage/displays/exhibits, etc can vertically exceed the horizon line. So, depending on where you're at, that's anywhere from 4'-14'. Hence, everyone gets to look at the natural beauty without a Bed, Bath & Beyond neon monstrosity. 

And, guess who lost a zoning fight to pollute the skyline? McDonalds: an entity that certainly has a more recognizable brand, and -some would argue- a more compelling reason to advertise its wares. But, you know what? As a community we've decided that the scenery beats the Golden Arches; that the rights of our residents and guests to enjoy the town and the natural sights takes precedent over gaudy commercialization, or even expressions of "artistic" speech. 

And, every court in the Nation will respect that as a valid objective and our methods a reasonable restriction on expression, speech, and commercial speech such as advertising.



I just had a seizure looking at this...
 


Bad pun absolutely intended: This is a dog of a case. Even if the County isn't a party owner to the dividing wall, there are plenty of compelling reasons to reasonably restrict advertising; especially when such advertising or "art" adjoins a public facility, paid for by the taxpayers, and used for the benefit of the taxpayers. 

That's more than enough for me.




*C'mon. You didn't think I was going to let the opportunity for a perfectly perverse pun pass me by, even at 3 in the morning?I've hopefully not slipped that much.

8 comments:

  1. The other ramification, which I meant to include is the fact that this lady very likely doesn't own the property at issue here. (And, I promise, her landlord wouldn't let the county advertise for free on its asphalt).

    RE affordability: Commercial real estate, even zoned warehouse/light industrial structures like this one, are relatively expensive. Odds are much more likely that A) this is a leased premise, and B) since we don't let people hang out in industrial areas, it's probably in a strict commercial or mixed residential/commercial zone.

    Not only does the County have an interest in regulating the advertisement abutting its property, but the homeowners (if any) have an interest in not staring at this stillborn "art" 24 hours a day, 7 days a week. And, such enormous displays for one business can dominate and/or diminish the general business district or neighborhood.

    All in all, this was a case tailor-made for settlement, and now it will devolve into an expensive suit of little merit.

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