Sign Or Artistic Speech? Wag More Dogs Takes On Arlington County To Find Out

December 4, 2010 by Heidi Meinzer 8 Comments

Dog owners here in the Northern Virginia area are fortunate to have a choice of many great dog parks.  Ask any number of people, and they will likely tell you Shirlington Dog Park is the best of the bunch.  Where else can your dog frolic and play in fully enclosed acreage, and even take a dip in waters deep enough to swim? 

So it is no surprise that Kim Houghton chose a space right off of the Shirlington Dog Park to open up Wag More Dogs, a new doggie daycare, boarding and grooming facility.  As wonderful as Shirlington Dog Park is, there is one huge drawback.  The park is sandwiched between Four Mile Run and a commercial district, and when your back is facing Four Mile Run, the view is – “industrial.”  Or, “warehouse-y.”  Well OK, it’s downright ugly:

To beautify the view from the park, Ms. Houghton paid $4000 to commission local artist Mark Gutierrez to paint this 16’ x 60’ mural of joyful dogs and dog bones on the back side of the building:

Arlington County reacted by freezing Wag More Dogs’ building permit.  The County’s justification?  The mural was a prohibited “sign” under the Section 34 of the Arlington County Zoning Ordinance because it shows “dogs at play” and directs the viewer’s eyes to the store’s emergency exit.  And if the “sign” didn’t come down, the penalty could be a $200 civil fine.  If ten more days went by, there could be up to a $500 civil fine for each subsequent violation, up to a total of $5000 in fines.  After that point, the matter could be referred to the Commonwealth Attorney’s office for criminal prosecution.

Arlington County Zoning Ordinance Section 34(B) defines a “sign” as any “word, numeral, figure, design, trademark, flag, pennant, twirler, light, display, banner, balloon or other device of any kind which, whether singly or in any combination, is used to direct, identify, or inform the public while viewing the same from outdoors.”  For commercial buildings in an M District (like Wag More Dogs’ building), each tenant is allowed a maximum total sign area of the greater of either 60 square feet, or one square foot per linear foot of the tenant’s frontage.  Displaying a sign requires a sign permit from the Zoning Administrator.   Artwork requires no permit.

One option for Wag More Dogs was to apply for a “Comprehensive Sign Plan.”  According to the County, the Arlington County Board was unlikely to approve a Comprehensive Sign Plan, but Ms. Houghton was welcome to try – after applying for a use permit, paying a non-refundable fee of $1782 and waiting at least two months for an outcome.

Another option the County suggested was to change the pictures in the mural to something other than dogs, bones, paw prints – anything except something having to do with dogs and pets, so that there would be no relationship to the business. 

In the meantime, Wag More Dogs had to cover the mural with tarp.  In September 2010, the County issued Wag More Dogs a temporary certificate of occupancy, conditioned on the tarp staying in place.  So now when you are romping with Rover in the dog park, you see this:

After the tarp was in place, the County suggested yet a third option – turning the mural into an “informational sign” that would not require a permit if Ms. Houghton, at her own expense, added “Welcome to Shirlington Park’s Community Canine Area” in letters at least four feet high.

Understandably, none of these options were all that appealing to Wag More Dogs.  Along came the Institute for Justice, whose motto is “Litigating for Liberty.”  The Institute just filed a complaint on behalf of Wag More Dogs in the U.S. District Court for the Eastern District of Virginia. 

The complaint argues that the County’s definition of “sign” is unconstitutionally vague and an unlawful restriction on free speech.  Wag More Dogs is demanding declaratory relief that the sign definition is unconstitutional, an injunction against messing with the mural and Wag More Dogs’ certificate of occupancy, nominal damages in the amount of $1 and attorney’s fees and costs.

There is no doubt that murals go a long way to beautifying neighborhoods, particularly in commercial areas.  Many local neighborhoods like Del Ray and Arlandria have great murals that add charm and character up and down Mount Vernon Avenue:

Residents, local businesses and dog park patrons are rooting for Wag More Dogs on this one.  And this stand-off has created quite a stir in the media – from the Washington Post to the Washington Business Journal.  The Institute for Justice’s website also has a great page about the law suit. 

I will be watching and reporting on how all of this unfolds.  In the meantime, I will join my neighbors and fellow dog park patrons in cheering on Wag More Dogs and the Institute for Justice!

If it were up to you, what would it be — art or signage?