Owners of home painted with Starry Night mural sue Mt. Dora for violation of First Amendment rights
By Deborah Goonan, Independent American Communities
Now here’s a story involving a federal lawsuit over property owners’ rights to paint their home as they see fit. Note that this home is not under the governance of a homeowners’ association (HOA).
The home is located in Mt. Dora, a small town just outside Orlando, and is owned by Nancy Nemhauser and her husband Ludomir Jastrzebski. (Jastrzebski is a Polish immigrant.)
As creative personalities, the homeowners decided to paint a privacy wall surrounding their property to resemble the Vincent Van Gogh masterpiece Starry Night. Before embarking on the project, the couple says they inquired about the need for a permit from the city, but they were told none was necessary.
Since the home is not under HOA rule, and there are no deed restrictions regarding architectural standards, the homeowners did not need to obtain approval from anyone prior to hiring an artist to paint their wall.
But, as soon as the wall was painted, some of their neighbors complained to Mt. Dora’s code enforcement office. Mt. Dora responded by citing Nemhauser and Jastrzebski for ‘graffiti’ on their property. When that charge didn’t hold up, the city insisted that the paint on the house and the wall must match.
So the homeowners did exactly the opposite of what Mt. Dora officials expected — they hired the same artist to paint their entire home in the Starry Night theme!
Mt. Dora officials were neither amused nor satisfied with the homeowners’ actions. They imposed a fine of $3,100 plus additional fines of $100 per day. In total, the fines currently exceed $10,000.
According to Fox News Orlando, in order to protect their rights, “the homeowners filed a temporary restraining order against the city through their California-based Pacific Legal Foundation attorney, Jeremy Talcott, who took the case to federal court to stop the accruing charges.”
Talcott argues that Mt. Dora’s restriction against the Starry Night mural, under the guise of a vague and selectively enforced “sign ordinance,” violates the homeowners’ First Amendment rights.
Florida’s ‘Starry Night’ homeowners battle city over First Amendment rights
By Allie Raffa, Fox News
May 2, 2018
MOUNT DORA, Fla. – In a picturesque city known for its artsy charm just outside Orlando, Fla., a house adorned with blue and yellow swirls is stuck in the middle of a First Amendment dispute that has pitted city hall against the homeowner.
“The City of Mount Dora has made our lives a nightmare,” said Nancy Nemhauser, who owns the home with her husband Ludomir Jastrzebski.
When Vincent Van Gogh’s iconic 1889 painting “Starry Night” was recreated on the home last July, Mount Dora officials called it an eyesore. The city slapped the homeowners with a graffiti violation and $3,100 fine, then charged them $100 a day, up to the value of the house, until the mural was painted over. They were given 30 days to comply or faced steeper fines.
The fines had grown to $10,600 when the homeowners filed a temporary restraining order against the city through their California-based Pacific Legal Foundation attorney, Jeremy Talcott, who took the case to federal court to stop the accruing charges.
Talcott argued that the home painted in the style of the masterpiece is an expression of the owners’ First Amendment rights and that the city’s application of what was a “sign” not allowed under code was inconsistent and vague.
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Two issues come to mind.
In HOAs, the Bill of Rights should also apply
First of all, HOAs violate First Amendment rights — and other Constitutional rights all the time. But they get away with it — most of the time — by hiring HOA attorneys to argue that association-governed housing schemes are ‘contractual’ relationships. They insist that property owners ‘agree’ to abide by covenants, conditions, and restrictions (CC&Rs), plus any valid board-enacted rules, by virtue of holding title to the property.
The HOA industry, led by trade group Community Associations Institute (CAI), insists that association-governed communities are not governmental in nature, and therefore, The Bill of Rights Need Not Apply.
What CAI fails to acknowledge is that, although nearly all modern HOAs are organized as corporations, state Legislatures and Governors across the U.S. have enacted enabling statutes (laws) that bestow homeowners,’ condominium, and cooperative associations with powers of government.
Among those powers is the authority to enforce CC&Rs, to enact rules and regulations, and to impose fines or other penalties upon property owners for non-compliance.
All of this occurs, however, without due process that incorporates division of power and disinterested judicial process. Put simply, the HOA board acts as Judge, jury, and executioner in the private community.
So, it’s no surprise that quite a few HOA board members let that unchecked power go to their heads.
Therefore, it’s high time that U.S. judicial and legislative leaders rethink their status quo policy that Constitutional constraints do not necessarily apply to association-governing bodies.
The HOA mentality undermines the Constitutional foundation of the U.S.
An arguably more critical issue that must be addressed is the fact that we are now seeing towns and cities, large and small, imitating HOAs. It’s most noticeable in regions of the country, such as Florida, where the vast majority of homes are ruled by some sort of mandatory property owners’ association regime.
This is a dangerous line to cross, because it threatens to destroy private property rights and freedom of expression, even in the absence of the alleged HOA ‘contractual’ relationship.
Today’s argument is about a property owner’s choice of artistic expression, in the form of a mural painted on their home.
As long as the mural is not harmful to public health or welfare, or conveying a message that is threatening or hateful to others, the government has no public interest to serve. The City of Mt. Dora should keep its nose out of this neighbor dispute.
One neighbor’s opinion that the Starry Night home is an ‘eyesore’ does not create sufficient reason to force homeowners to repaint their property in a boring solid color, nor should it subject the property owners to punitive fines. Even if dozens of owners don’t like the painting, it’s still not a valid reason for denying private property rights, let alone First Amendment rights.
No member of the public has ever suffered irreparable harm due to an eyesore!
What’s the underlying argument of dissatisfied neighbors? What damages have they suffered as a result of the creative beacon in their small town?
Are a few of Mt. Dora’s choosy, demanding neighbors arguing that the presence of the home will decrease property values of neighboring properties?
If so, what, if any, proof can they offer, that their homes are now worth less money than they were a year ago, when Nemhauser’s and Jastrzebski’s home used to be painted a hue of boring beige?
And, in terms of serving the greater public interest, what’s more valuable: preserving individual rights (a prime duty of government), or protecting the rights of a few neighbors to dictate aesthetic standards in order to ensure the theoretical maximum resale value of their homes?
If the federal courts rule in favor of the City of Mt. Dora on this issue, it would create a slippery slope, granting governments the right to ignore or circumvent constraints of the U.S. Constitution.
Homeowners, even if able to avoid buying into an HOA regime, could face HOA-like arbitrary restrictions against intallling a privacy fence, putting up a utility shed, planting a garden in the yard, having a play structure for their children, or even parking their vehicles on their own driveway or in front of their homes on a public street.
Do we really want this level of government overreach in America?