Murals Exemption from Signs/Zoning Ordinances

Most if not all municipalities will have enacted zoning ordinances that regulate signage within their jurisdiction.  Some localities have run into difficulties in determining how murals (i.e. a painting or other work of art upon the side of a building) fit into these regulations.  Furthermore, regulations on signs, signage, and murals directly implicate the First Amendment’s right to freedom of speech, in both the commercial (i.e. advertising) and noncommercial (i.e., artistic) sense.

It will be extremely difficult for any locality to draft a zoning ordinance that regulates or governs the display of murals and which will withstand constitutional muster, or at least avoid litigation.  The reason being is that any attempt to define artwork (as opposed to a “sign” or advertising) requires analyzing the content of the message conveyed, which is troubling from a First Amendment perspective.  The better approach is to draw up an exemption to the definition of a “sign.”  The definition of a “sign” and the effects of the First Amendment upon commercial advertising has been well litigated and we should presume that the locality has a constitutionally-valid definition of “sign” in its zoning ordinances.

Below is an example of a definition of a mural that could be placed in the exemptions portion of a city’s zoning ordinances which address signs or outdoor advertising:

Murals: All or any portion of artwork upon the exterior wall of a building (or other structure) which would not constitute a sign under this chapter.

It is possible, and constitutionally permitted, to place certain limitations upon murals as long as they are directed at issues like public safety and protecting the visual environment.  Thus, a regulation that prevents murals from extending beyond the scope of the wall (to avoid creating a public hazard), or from being overly-large (to avoid dominating the visual field or causing a distraction for drivers), are likely permissible.