Schwartz v. Planning and Zoning Commission Hamden

Artist: Harold Lehr

Year: 1988

Date of Action: 1988

Region: North America

Location: Hamden, Connecticut

Subject: Political/Economic/Social Opinion

Medium: Commercial Advertising, Sculpture

Confronting Bodies: Hamden Planning and Zoning Commission

Description of Artwork: Sculptor Harold Lehr produced a kinetic sculpture entitled "Landmark". Landmark is 32-feet tall and made of aluminum cylinders which rotate in the wind. David Bermant, partial owner of National Shopper Centers, Inc., purchased the sculpture. After the work was shown in an exhibition, Bermant arranged to place the sculpture at Hamden Plaza, a shopping mall owned by NSC in Connecticut.

The Incident: The Planning and Zoning Commission of the Town of Hamden, after receiving Bermant's application seeking the Commission's approval of his placing the sculpture at the mall, refused to grant him permission. According to the Commission, Landmark could be considered a "sign" under Hamden's zoning regulations, and thus, exceeded the maximum permissible size of a sign.

Results of Incident: After the Planning and Zoning Commission won the first case in court, the NSC owners appealed the trial court's decision to the Connecticut Appellate Court. The case was transferred to the Connecticut Supreme court, where the defendants claimed that the application of the height restrictions to a work of art violated their First Amendment rights. The court did not address constitutional issues, but held that the Commission's decision to classify the sculpture as a "sign" was "unsupported and arbitrary and unreasonable." The court believed that the distinction between commercial and noncommercial speech was necessitated when considering whether or not something ought to be categorized of as a sign; this distinction seemed to be built into Hamden's zoning regulations, too.