The constitutional rights of private property and freedom of speech and expression are properly upheld by the proposed Art Mural Ordinance as written, and the right of objection and redress on the part of individuals and local communities is preserved. Indeed, prior to its January revision to eliminate a restriction on residential properties based on the number of units, the draft ordinance was on a track towards constitutional self-destruction based on real history. Commercial billboard companies successfully sued the City a decade ago on essentially these grounds, resulting in the cessation of the creation of new murals. Among other considerations, MCLA supports an ordinance that is crafted so as to withstand such Constitutional challenges and is already on record as opposing one that invites being overturned by the courts.
The Fifth Amendment's "Just Takings" clause broadly protects citizens' private property from seizure by the government without "just compensation." It is not the private use of private property that is subject to the careful and limited use of regulation; it is the public use of private property.
In the case of a dispute between two residential property owners, is it the homeowner's right to modify their property or their neighbor's wish to prevent such modification that should hold sway? The long established right of local government to establish specific zoning regulations suggests that there are limits to the former; but the desire by the latter to impose either individual case or categorical restrictions based on personal taste or general speculation as to potential problems is insufficient to pass a Constitutional "smell test." This is the so-called right of "sole dominion" that is long recognized as the basis by which we may exclude others, even neighbors, from imposing their will upon how we enjoy our property.
It is one thing for neighbors to air and negotiate potential differences of taste and opinion through free and open discussion; the option to resort to the courts to resolve disputes is always going to be there. The burden of proof is clearly NOT on the property owner but on the party objecting to how those owners use their own property. It is another thing entirely to call upon the government to categorically restrict the free use of private property so as, in this instance, to incidentally eliminate the vast majority of cases in which the embellishment of Art Murals is at least non-controversial or perhaps even welcome. To mandate this change is to shift the burden of proof onto the property owner and, moreover, to simply deny the property owner that discretionary right.
The fear of illegal activity by criminal gangs that has been expressed is frivolous. Permitting property owners to embellish their own property with Art Murals by ordinance in fact safeguards all of us from exactly such activity. MCLA stands firmly against graffiti vandalism, often perpetrated against legitimate public art, and the draft ordinance provides precisely the tools needed to combat such abuse. When there is genuine MIS-use, and the element of risk is introduced, if there might be physical damage done to a neighbor's property, the new ordinance offers a firm foundation to redress such a legitimate grievance.
MCLA therefore calls upon the City to stand by the present language of the ordinance on this basis alone. But it is not the only compelling foundation.
The First Amendment's provision that "Congress shall make no law ÔÇª abridging the freedom of speech ÔÇª" may be our most fundamental right. To render it illegal for property owners to add Art Murals to their own property eliminates this basic right for both the property owner and the artist whom they wish to commission. The same point made already applies even more emphatically in the context of the First Amendment. The new ordinance does not eliminate or even restrict the rights of neighbors to seek to negotiate or redress a potential grievance; while to revise it to categorically eliminate Art Murals from single-family residences is to state that the First Amendment is not applicable in such a case.
MCLA recognizes that some individuals may not like Art Murals in some cases or perhaps ever. As a public advocate for the preservation and documentation of public Art Murals MCLA does not share this hostility, and for the most part we do not even understand it (that feeling may be mutual), but we stand by the right of these people to their opinions. The new Art Mural ordinance neither abrogates, let alone bans, the rights of these citizens, nor of specific neighborhoods to exercise long established rights to impose local regulations. But for any individual or group to impose their own preferences and fears, real or imagined, on the many citizens who love public Art Murals and benefit from their creation and presence in Los Angeles is morally wrong and flies in the face of our most fundamental laws and traditions.