The Mandan City Commission is considering a proposal that would allow the Lonesome Dove to keep its mural, despite initially ordering it removed.
All existing murals would also be allowed under the proposed ordinance, but new murals will have to follow a different set of standards.
The city of Mandan faces a lawsuit filed in May from the owners of the Lonesome Dove, a Western-themed bar. The city decided in July not to accept mural applications or enforce regulations until the federal lawsuit ended or city commissioners approved a new ordinance.
The plaintiffs allege requiring mural permits "allows the city to play art critic by demanding changes to murals' artistic details," according to court records. The city denies the accusations, saying the mural is an "illegal sign for which plaintiffs painted the sign first and then applied for permission second." A settlement conference is scheduled for next week, court records show.
City staff hope that by exempting Lonesome Dove from amended mural regulations, it can reach a settlement with the bar's owners.
Robert Frommer, a senior attorney with the Institute for Justice, the law firm representing the Lonesome Dove, said the proposed ordinance "raises significant constitutional concerns."
The proposed ordinance defines a "figurative wall mural" as an "illustration, diagram or design, not intended to sell a product or to advertise an establishment, that is used for aesthetic purposes or to enhance architectural features of a building." It would also limit murals to up to two per structure and no more than "25% of the total square footage of the street-fronting side."
Frommer said he opposes how the proposed ordinance prohibits wall murals that "sell a product or advertise and establishment."
"It discriminates against certain murals based on what they say," Frommer said in an email. He also said there is "no principled reason" why the city should be able to limit the number of murals on buildings.
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"Some owners want a wide variety of art on their walls, and they should be free to express themselves," Frommer said.
Frommer also said he is against the city limiting the size of murals to no more than 25% of a building's front wall.
"That means how much you can speak turns on how much real estate you own," he said. "And given that so many buildings abut more than one street, this restriction makes no sense as a traffic safety or aesthetic measure."
The proposed mural ordinance would repeal existing mural guidelines adopted by the Mandan City Commission in August 2018. Unlike the current guidelines, the proposed ordinance applies regulations to "all commercial, industrial and downtown districts."
Artist Melissa Gordon, who has painted several murals in Bismarck-Mandan, said she supports the ordinance. Gordon said she has projects scheduled in Mandan, so she is waiting for the ordinance to be approved by the city commission.
Gordon attended the Mandan Planning and Zoning Commission meeting on Aug. 26 where city staff first introduced the proposal.
"I think what they are doing is great. I think it's good to clarify everything and then put it down as an actual ordinance with the city," she said. "That will clear a lot of this stuff up, make it a better streamline process."
The proposed ordinance allows owners to paint wall murals on buildings without approval from the Mandan Architecture Review Commission, which is required in the current guidelines. It would also no longer prohibit painting on the front of a building.
Mandan City Commissioners will vote on the proposal on Oct. 1.