[EDITORS' NOTE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

Gregory S. Forman, William J. Hamilton, III, Charleston, SC, for plaintiff.

John Hamilton Smith, William B. Regan, Charleston, SC, for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

CURRIE, District Judge.

This unusual case examines the constitutionality of a content-neutral place and manner regulation affecting pure speech in a historic preservation district. In this civil rights action brought pursuant to 42 U.S.C. § 1983 Plaintiff, an artist, challenges historic preservation ordinances enacted by Defendant City of Charleston (hereinafter "the City"). Jurisdiction is based on federal question, pursuant to 28 U.S.C. § 1331.

Plaintiff's Complaint alleges that the City wrongfully denied a permit for the display of a large mural painted by Plaintiff on the exterior wall of a restaurant located in the Old and Historic District of Charleston at 348 King Street. Although the mural was located on private property, it was publicly visible from the street. Plaintiff mounts a facial challenge to the ordinances, claiming they are vague and overbroad. In addition, Plaintiff claims the City's application of the ordinances to his mural abridged his First Amendment right to free speech, as well as his rights to due process and equal protection, as guaranteed by the First and Fourteenth Amendments to the United States Constitution. Plaintiff seeks injunctive relief restraining the City from enforcing the ordinances, compensatory damages, and attorneys' fees. The City admits that the Board of Architectural Review (hereinafter "the BAR"), an administrative agency of the City, denied a permit for the display of Plaintiff's work, but denies that its actions were wrongful.

The matter came on for nonjury trial March 22, 1995, through March 24, 1995. Following the presentation of evidence the court conducted its view of thirteen sites specified by counsel for the parties. The court's view spanned several hours, and included an extensive walk through the King Street area.

Pursuant to Rule 52(a), Fed.R.Civ.P., the court makes the following Findings of Fact and Conclusions of Law. To the extent that any Findings of Fact constitute Conclusions of Law, or vice-versa, they are to be so regarded.

FINDINGS OF FACT

1. In July 1993, Ron Klenk, the owner of the premises located at 348 King Street, decided to open a bar and grill, to be known as the "Treehouse Grill," on the first floor of the building. The building already housed a nightclub, known as the "Treehouse Night Club," on the second floor. The upstairs nightclub displayed several paintings by Plaintiff on its interior walls.

2. The premises known as 348 King Street are located within the Old and Historic District of the City of Charleston. The Old and Historic District comprises 2.7 square miles or 4% of the City and contains 2800 historically significant buildings, the largest collection in the United States. See testimony of Charles Chase, Preservation Officer. The Old and Historic District is the heart of the tourist attraction to Charleston.

3. The immediate area around 348 King Street is a commercial area which draws a large number of college students, and is conveniently located to the University of Charleston. Young persons live in apartments on the second and third floors of buildings along that block. The block contains numerous bars, shops, bookstores and fast food restaurants. The block is aesthetically diverse, and has significant tourist traffic. Several of the buildings in the block of 348 King Street are dilapidated, and a few, such as the subject site, are vacant.

4. As is clearly illustrated by Plaintiff's Exhibits 19-21, the building at 348 King Street contains a fully recessed storefront that abuts, but does not include, the public sidewalk. The recessed area, which is private storefront, is of roughly triangular shape and was last renovated in the 1970s. Plate glass windows look out on the recessed area, and adjacent to the entrance there is a flat masonry wall about nine by fifteen feet in length. This wall, clearly visible from the street, is the wall upon which Plaintiff painted the mural in 1993.

5. Plaintiff is a painter with a style that generally can be described as pop art. His work is influenced by pop and folk art, and surrealism. His work has a cartoon quality with bold lines, and graphic, arresting displays. Plaintiff received an Associate Degree from the Art Institute in Fort Lauderdale, Florida. After working in a band and for Greenpeace, Plaintiff decided to move to Charleston in November 1990. After struggling to establish himself in the artistic community, and taking lessons from local artists, Plaintiff, by 1993, had attracted modest local recognition. Three to four months before Plaintiff painted the mural at issue in this case, he had done a painting of similar style, about 3' x 4', which had sold for $500. Plaintiff also sells traditional Charleston watercolors at a booth located in Artisans Alley in the market area of the Old and Historic District.

6. In July 1993 Klenk engaged Plaintiff to paint a mural on the flat masonry wall at 348 King Street. Plaintiff had painted one mural earlier on a restaurant door. Klenk gave no directions to Plaintiff as to the mural desired. Klenk, however, did specify that a small blank space was to be left in the middle of the mural for a sign advertising the Tree-house Grill. Plaintiff substantially finished the mural, which was 8' x 15', in three days. He painted in a "stream of consciousness" method without a plan. Plaintiff attempted to incorporate into the work the influences of that area of King Street at that time. For example, Plaintiff testified the mural reflects the influence of young persons dancing and enjoying a party atmosphere on King Street while the mural was being painted.

7. Plaintiff has painted approximately 16-20 works similar to the subject mural. Many of these were displayed at trial, see Plaintiff's Exh. 28. In these works Plaintiff has created a world of new creatures, about 28 in number in the first generation. Plaintiff seeks to illustrate a happy universe where diverse creatures coexist peacefully. The subject mural, depicted in Plaintiff's Exhibit 5, bears this style and was described in Plaintiff's Complaint as "a colorful cartoon of imaginary characters, including smiling mountains, flying creatures with impractically small wings and tiny yellow bipeds." Plaintiff testified that he needs a multitude of colors in order to paint in this style, although he can adjust to size limitations.

8. Plaintiff's work carries some artistic message emphasizing the importance of diversity and tolerance in society. This message may, however, not be readily discernible by all persons.

9. Klenk paid Plaintiff $500 to paint the mural. Plaintiff hoped the mural would be displayed for an indefinite period of time along the heavily traveled King Street. Plaintiff wished to expose his work to a broader audience than his prior paintings, prints and T-shirt designs had drawn. He thus agreed to execute the mural for the sum of $500, which was less than the cost of one of his smaller paintings in similar style. The cost of renting comparably sized gallery space in the Old and Historic District was approximately $1,000 per month.

10. The size of the space reserved for the Treehouse Grill sign in the middle of the mural was quite small in proportion to the entire expanse of the mural, and probably did not approach 1/25th the size of the mural.

11. As a result of Plaintiff's execution of the mural at 348 King Street, and the subsequent public controversy and extensive media attention surrounding the mural's display, Plaintiff secured a commission to create two murals at a McDonalds restaurant on Savannah Highway, outside the Old and Historic District. The murals contain many of the same creatures and colors contained in the mural at 348 King Street. Plaintiff was paid $11,600 for the work.

12. Another restaurant owner approached Plaintiff about painting a mural on King Street. The Horse & Cart Restaurant is located at 347 King Street. It is therefore subject to the same ordinances that precluded display of Plaintiff's mural at 348 King Street. Plaintiff testified he has therefore been prevented from painting another mural in that style at a similar location.

13. The mural combined pure speech and commercial speech. It can be considered a sign that contained artwork. It had no obscene content, nor was it false or misleading.

14. Two prior murals had been painted on the same wall upon which Plaintiff painted his mural. The first mural, "The Willow Tree" mural, promoted a vegetarian restaurant. It is depicted in a photograph included in Defendant's Exhibit 1, the BAR file on 348 King Street. The Willow Tree mural was a pastel mural on a white background, and occupied approximately one third of the wall expanse. The Willow Tree mural remained for several months, and although application was made to the BAR for a permit, the closing of the restaurant mooted the application on March 11, 1992.

15. The second mural was a Cajun-style mural, which is also depicted in Defendant's Exhibit 1, on the back of the Sign Permit Application filed May 24, 1993, for Tee Pauly's Restaurant. Although application for permit was made for this mural, it was disapproved by the BAR on June 28, 1993, "because it exceeds the size allowed on the facade." The mural had been in place for several months prior to the time the BAR ordered it painted over. The Tee Pauly's mural that was rejected by the BAR was a scene of a Cajun restaurant on stilts in a swamp, and included some bright colors and fluorescent paint.

16. The BAR was established in 1931 by ordinance 54-26 of the City of Charleston for the purpose of reviewing proposed alterations to exteriors of structures within historic areas of the City in order to maintain harmony as to style, form, color, proportion, texture and material of buildings in the historic area. When first established in 1931 its jurisdiction governed that area around Church and South of Broad Streets, but its jurisdiction has been steadily expanded to include a larger part of the peninsula of Charleston as additional historical structures have been identified. The BAR's operations are conducted on a day-to-day basis by a full-time professional staff. The BAR's operations are governed by ordinances 54-23 through 54-35, Defendant's Exhibit 3. Within the Old and Historic District no exterior or fixed structural alterations, signs, murals or other exterior changes can be made without approval of the BAR. BAR jurisdiction does not, however, extend to what hangs in windows of shops. Therefore, nothing would prevent the hanging of Plaintiff's artwork in the window of any premises in the Old and Historic District.

17. Some building modifications subject to BAR review have been approved after changes were carried out. However, the general procedure is that an applicant must submit an application for permit to the BAR along with a proposal describing the work.

18. Neither Plaintiff, nor the property owner, Ron Klenk, submitted an application to the BAR for approval of the mural at 348 King Street prior to painting the mural. Nor had they attempted to solicit by preapplication the opinion of the BAR as to the appropriateness of Plaintiff's mural at that location. Thus, the work was commenced, and executed substantially to completion, without prior approval of the BAR, as required by ordinances 54-29 and 54-30.

19. When the mural was discovered by BAR representatives, a stop work order was issued and Ron Klenk filed an application for approval, see Defendant's Exhibit 1, application filed August 9, 1993. The parties agreed to cover the mural with a temporary plywood wall pending adjudication of the BAR application. Subsequently, the parties extended the agreement to cover the litigation period. Thus, the mural remains covered with plywood.

20. Plaintiff retained an attorney to handle his BAR application. A public hearing was held October 13, 1993, at which Plaintiff, his counsel, and several other persons spoke. At that hearing Plaintiff's counsel submitted several exhibits containing letters supporting the mural, and photographs of other murals in Charleston. See Transcript of October 13, 1993, hearing, Defendant's Exhibit 2. Several persons, including the Chairman of the Historic Charleston Foundation, spoke against the mural on the ground that it was inappropriate because it was larger than other permitted signage. See id. 25. Another member of the Preservation Society of Charleston also spoke against the mural, stating that it was inappropriate to the historic district. Id. at 28. All persons were given an opportunity to be heard, and Plaintiff had an opportunity to call witnesses and cross-examine opposing witnesses. Following the hearing, the BAR deliberated. Its members considered Plaintiff's mural in the context of commercial signage, and emphasized their opinion that they were not rendering subjective interpretations of Plaintiff's artistic message or expression. Several members stated that there was nothing wrong with the mural as art, but they felt it was inappropriate to Charleston, or inappropriate compared with signage elsewhere on King Street. One member commented, "A Picasso Mural on the wall would not be appropriate." Defendant's Exhibit 2 at 36. Another member stated his belief that the mural was not compatible with the architecture of the building at 348 King Street. However, one member felt the mural was appropriate to the area although he emphasized that each application must be decided on its own merits within the context of its own location.

21. Prior to the October 13, 1993, hearing, the BAR also had received several letters from Charleston-area residents about the mural, which were read into the record at the hearing. The letters expressed a wide body of differing opinion, ranging from statements against the mural, e.g., "I hope that the council will use its good taste, of which Charleston is famous for, and refuse to grant a permit to that ugly, controversial mural on King Street that is sophomoric and offensive. A child could have done a more pleasant and artistic mural than this one. Please do not ruin our beautiful downtown by allowing this tasteless work to stay," to the following statement in favor of the mural by a well-known nationally syndicated columnist who resides in Charleston:

The mural is a charming work in every way. It is not obscene, not suggestive, not offensive to anyone save a few sulking dunderheads with no sense of humor. It does not front on King Street. It is in a door-alcove off the street. In a crummy, commercial, non-historic part of town, it provides a touch of color and of fey amusement. I entreat you: Not everything in Charleston must be hung in Spanish moss. The city must occasionally unstuff its shirt and have a little fun.

22. The voting members of the BAR voted not to approve the mural. The BAR Report, dated October 13, 1993, stated its reasons for denial of the permit as follow:

(Mural) Inappropriate in size, scale, inappropriate for location in historic district; garish colors; not in concert with surroundings; ref. Ordinance section 54-31.

23. Although the BAR denied the mural application, it did approve a sign on a pole on the sidewalk in front of 348 King Street which contains the same colorful characters depicted in the mural. In fact, the sign is an extract from the larger mural, and contains the profile of a bright yellow creature devouring a smaller creature resembling a lizard, on a bright green background. See Plaintiff's Exhibit 3. The sign is of a standard size utilized by businesses along King Street. The sign is in the same style as the mural, and is being displayed within several feet of the mural wall. It is depicted in Plaintiff's Exhibits 19-21.

24. The facade of 348 King Street is depicted in Plaintiff's Exhibit 20 and several pictures contained in the BAR file, Defendant's Exhibit 1. It is a three-and-one half story brick building, circa 1830, which has been altered at the first floor level only. It is a late Federal style building, with Charleston chimneys. The building is constructed of Charleston "gray" brick, with white mortar thinly laid and beaded. A cornice of molded brick extends around the building. It has a slate-covered hip roof, with dormers. The renovated first floor storefront has neoclassic pilasters on both sides. There is a glass storefront, recessed on the diagonal, with flagstone paving in front.

25. The sidewalk in front of the mural wall is private property, although it abuts the public sidewalk. Plaintiff introduced no evidence at trial that the wall upon which Plaintiff painted his mural had, by tradition, custom or usage, been dedicated to public expression or had in any fashion become a public forum.

26. A collection of historic photographs and postcards of the relevant King Street area were introduced by Plaintiff, see Plaintiff's Exhibit 1. They reflect that King Street has operated primarily as a commercial district.

27. Architectural historian Stockton testified that the structure at 348 King Street was built by a French woman, Margaret Gidiere, in the 1830's, and was originally a commercial dry goods store on the first level, and a residential structure above. In 1856 the property was purchased by John Schachte, who opened a tavern at the location and lived above it. In 1877, the property was again sold, and another saloon was opened at the location. In 1898, the property was sold and a commercial business selling "paints, oils, leathers, and findings" was conducted there, with the family living upstairs. In 1909, the property owner converted its use to a motion picture and vaudeville house, known as the Lyric Theatre, which operated until 1928. Thereafter, the building was used for commercial purposes only. The King Street area suffered a decline in the early part of the 20th century. However, in 1961, the building was used as an office-shop complex. In 1977 the building underwent substantial first floor renovations in which the first floor storefront was recessed, as part of the King Street Facade Program, a federally funded grant program, see Defendant's Exhibit 7. During that renovation, an interior wall was exposed and became the exterior surface upon which Plaintiff painted the mural. The purpose of the Facade Program was to give owners a better concept of how to keep their first floors in conformity with the historic ambiance of the area. From 1977 until it burned in 1980, a restaurant and discotheque, Momma's Money, operated there. In the last 15 years a series of bars and restaurants have operated at the location. In July 1993 Ron Klenk sought to open the Treehouse Grill there. See Testimony of Robert P. Stockton.

28. There is longstanding historical precedent in Charleston for the painting of murals on exterior walls of commercial buildings, although there are fewer murals today than around the turn of the century. The most famous mural, located at Broad and Church Streets on a law office building and known as "The Hat Man," is depicted in Plaintiff's Exhibit 22. It is a pastel-shaded fanciful cartoon mural of an individual constructed entirely of hats. It is an 8' x 10' mural. Although its date of creation is uncertain, the Mayor testified that it had been in existence at least 52 years. In 1990, painter Helen Thomas restored "The Hatman" by repainting it according to historic detail. The restoration was approved by the BAR.

29. The BAR has jurisdiction over modifications to all buildings in the Old and Historic District. In addition, it also regulates buildings in the Old City District, a larger area, that are over 75 years of age or those listed in historic inventory maps listing buildings of historic significance. See ordinances 54-24 and 54-25, Defendant's Exhibit 3. Structures in the Old City District are not subject to regulations as restrictive as structures in the Old and Historic District. The premises at 348 King Street are located in the Old and Historic District. See testimony of Charles Chase, Preservation Officer.

30. No list of BAR-approved or -disapproved colors has ever been published for the Old and Historic District. The architectural historian, Mr. Stockton, testified that the BAR's decisions relevant to color appear to have been made on a case-by-case basis.

31. The testimony of Mr. Stockton, called as Plaintiff's witness, supports the conclusion that the BAR has done an outstanding job of preserving the historical ambiance and integrity of the Old and Historic District, and of King Street in particular. Stockton testified that the BAR's efforts have increased tourism in the City. Stockton cited the following three examples of "well-known lapses" in the exercise of good judgment by the BAR: (1) the construction of a modular, freeway style BP gas station within one block of 348 King Street; (2) the destruction of a 19th century building, the Victoria Hotel, on King Street, which had become dilapidated, and its replacement with a one-story bank building; and (3) the building of the "Neo-Chateauesque" Omni Hotel, which Stockton admitted was a good post-modern design but which bore little relationship to the surrounding area. Significantly, Stockton agreed that the authority of the BAR should be expanded to preserve historic structures, agreed that the BAR must have wide parameters within which to operate, agreed that the ordinances must be somewhat broad to give the BAR the requisite discretion to decide what is, for example, "intense and lurid" color, but rejected the notion that the ordinances are vague or overbroad. Thus, while Stockton agreed that the ordinances were reasonable, he disagreed with their application to prohibit Plaintiff's mural. In other words, Stockton believed that because the first floor of 348 King Street had been modernized, and because the area was frequented by youthful and artistic visitors, a colorful, artistic mural was appropriate to its location.

32. The court agrees with Stockton's expert opinion that the BAR has had a beneficial influence on the historic preservation effort in Charleston. The court finds it highly significant that Stockton could enumerate only three "lapses" in the 64 year history of the BAR. Currently the BAR processes nearly 1200 applications per year, although only a small percentage pertain to murals. The sheer number of applications which must be considered for widely varying types of structures, in vastly differing locations, lends further support to the testimony of several witnesses that it would not be feasible to draw narrowly tailored ordinances governing each and every specific for every location.

33. Furthermore, the City introduced persuasive evidence justifying several of the known "lapses." A dilapidated convenience store formerly occupied the site of the modern BP station, and there was widespread agreement that a large commercial hotel such as the Omni was needed for the revival of the downtown business area. Even when the BAR authorized demolition of the previous historic building located on the Omni site, it ordered the facade relocated to Meeting Street, so as to preserve the historic structure.

34. The Mayor of the City of Charleston, Joseph P. Riley, Jr., a lifelong resident of the City, also testified. He stated that the Charleston historic preservation ordinances were the first enacted in the United States and that they have been adopted by many cities across the nation. He further testified that the ordinances were critical to preserve the ambience and quaint charm of the City. He testified that there were numerous other outlets in Charleston for mural artists to display their work, both in interior locations of the Old and Historic District as well as numerous exterior locations outside the Old and Historic District.

35. During the Mayor's testimony, Plaintiff stipulated that the Charleston historic preservation ordinances had substantial government purposes of preserving aesthetics and property values and promoting economic prosperity from tourism. Plaintiff further stipulated that the ordinances, in fact, advanced those substantial government purposes, except as to art, which Plaintiff contends the ordinances fail to promote.

36. The Mayor defended the latitude given to the BAR by the ordinances, on the ground that so many types of historic structures exist throughout the City, that no "laundry list" of permissible displays could be drawn for each distinct site. The Mayor further testified that the citizens of Charleston have a special interest in controlling changes affecting their realm, and that color was one aspect of the realm necessary to preserve the beauty of the City. He also stated that harmonization of color scheme was critical to continuing to attract tourists to Charleston, which is the major economic industry. He concluded by asserting that if this mural were allowed to be displayed in the heart of the Old and Historic District, the special nature of that area of Charleston would be lost, resulting in adverse economic effects. The court finds this testimony credible.

37. Much of the Mayor's testimony related to the "Christmas Mural," a city-sponsored holiday mural that was formerly located at 275 King Street on a vacant Lerner's storefront. This mural is depicted in Plaintiff's Exhibit 11, and shows a number of Charleston-style buildings set against the backdrop of a star-lit blue sky. The Christmas mural was considerably larger than Plaintiff's mural, and covered the broad expanse of an entire storefront on King Street. It also contained colors similar to Plaintiff's mural. Although the Christmas Mural was originally designed for temporary display of less than 30 days, so that under BAR custom no permit was required, it actually was on display for an eleven month period, during which time no permanent permit was obtained. It was eventually painted over by the City Maintenance Department and now that store has a white-washed storefront with a "For Sale" sign in the window. See Plaintiff's Exhibit 10.

38. Although Plaintiff attempted repeatedly to establish inconsistent application of the historic preservation ordinances by allusion to the Christmas Mural, the court finds that numerous and significant differences explain the different result in that case. First, a number of witnesses testified, and the court found during its view of the site, that the abandoned Lerner Shop building is a modular, contemporary facade, built in the 1940s-1950s. Thus, the graphics and colors of the Christmas Mural might be considered appropriate for that location and that holiday season, but not as a permanent addition to a traditional late Federal style 1830s building such as 348 King Street. Although the court finds it anomalous that the City allowed the Christmas Mural to remain for an 11 month period without permanent permit, the court finds credible the testimony of the Mayor and BAR Preservation Officer Chase that leaving that mural up for an extended period on a very modern building on King Street was preferable to having a vacant storefront on display on one of the most heavily traveled thoroughfares in downtown Charleston.

39. Plaintiff attempted to illustrate inconsistent application of the historic preservation ordinances by introducing numerous photographs of murals, signs or other colorful displays in Charleston. Many of these purported "inconsistencies" were, in fact, not matters subject to BAR jurisdiction at all, or were, in fact, structures that were never permitted by the BAR and were ordered removed. Thus, these examples were, for the most part, either irrelevant to the matter at issue or were supportive of the City's claim that inappropriate structures are ordered removed. For example, the following are irrelevant because no BAR jurisdiction extends to: colorful windsocks hanging in front of a store, see Plaintiff's Exhibit 10; temporary signs, see Plaintiff's Exhibit 8; and items not affixed to store windows which are simply hanging in the window, see Plaintiff's Exhibit 15, depicting a display of colorful badges in a window. Similarly, no BAR jurisdiction extends to murals in the Old City on buildings less than 75 years of age, such as Vanessa's Beauty Shop, see Plaintiff's Exhibit 27, which the court nevertheless viewed during its inspection. A window mural of a train, see Plaintiff's Exhibit 18, was ordered removed by the BAR. Another, fairly small, pastel-colored mural of a laughing dolphin was also ordered removed by the BAR, see Plaintiff's Exhibit 12. A second mural of dolphins, see Plaintiff's Exhibit 24, was not approved by the BAR. Like Plaintiff's mural, it was painted without securing prior permission of the BAR, and was ultimately covered up by the property owner at BAR request. A single-colored mural silhouette of a parade of ducks with balloons located at 324 King Street, see Plaintiff's Exhibit 6, was approved by the BAR, but a Goody Two Shoes sign on the overhanging canopy was ordered removed. The court observed this mural during its view of the area and concluded that the duck mural, although more visible to street traffic than Plaintiff's mural, was much smaller and lower than Plaintiff's mural and that its placement on the lower portion of a modern storefront justified different BAR treatment. Similarly, the court found credible the BAR's explanation as to why Plaintiff's Exhibit 9, a black and white window mural of a French diner painted as part of the renovation of a French restaurant located at 337 King Street, was appropriate in size (as approximately 3' x 5' and much smaller than Plaintiff's mural) and appropriate in location. The court viewed this display during its inspection. The court also viewed the locations depicted in Plaintiff's Exhibits 13, 14, 16 and 17, and agrees with the testimony of BAR Preservation Officer Chase that the signs for these fast-food facilities (none of which are murals) are small in relation to the buildings, and thus appropriate in both proportion and location.

40. Plaintiff also took issue with the BAR's approval of three permanent murals: (1) The Places with The Past Exhibit, House of the Future, located in a deteriorated residential neighborhood at 44 America Street in the Old City, see Plaintiff's Exhibit 2 at page 187, depicting an outdoor structure of a typical Charleston single house; (2) The Hatman Mural, at the corner of Broad and Church Streets in the Old and Historic District, Plaintiff's Exhibit 22, discussed above; and (3) The Tank Mural located at 701 East Bay Street in an industrial area across from the shipyard at Port Center, Plaintiff's Exhibit 25. The court heard extensive testimony regarding these displays, and visited each site during the view. For reasons set forth below, the court finds that each of these exhibits is distinguishable from Plaintiff's mural and represents an appropriate exercise of discretion by the BAR.

41. The House of the Future is not a mural at all, but rather is an example of site-specific art conceived by internationally recognized artist David Hammons. The exhibit was first conceived as part of the Spoleto Art Festival, an annual arts festival in Charleston, and was originally designed to be a temporary structure during the festival. The exhibit was received so positively in the surrounding African-American community where it was constructed that the City, upon clamor by local residents, agreed to allow the exhibit to be a permanent installation. It has remained for five years.

42. The House of the Future is a recreated illustration of a typical Charleston single house with wood siding and a metal roof, and which is a single door wide. It is a "house-cum-sculpture", complete with a second story piazza, and has been used to promote pride in the African-American community. As one commentator remarked, "[T]his house should be used to foster pride in neighborhood houses through awareness education. Local children felt deprived because they had to live in old houses, but if they recognized that their homes were the same as the houses downtown, then maybe they would take pride in the place in which they lived and in their place in history." Plaintiff's Exhibit 2 at 185-86. The House of the Future bears the following quotation from African-American author Ishmael Reed on the side of the house:

The Afro-American has become heir to the myths that it is better to be poor than rich, lower class than middle or upper, easy going rather than industrious, extravagant rather than thrifty, and athletic rather than academic.

43. Several notable characteristics distinguish the House of the Future exhibit from Plaintiff's work. First, it should be noted that the House of the Future is located in an economically-depressed residential neighborhood that is in the Old City, which, as noted earlier, is not subject to the exacting criteria of the Old and Historic District. Second, and most important, as the court noted during its view, the House of the Future blends in with the surrounding Charleston style homes; it is, in fact, a mini-example of hundreds of homes in the surrounding community, constructed in similar shape, color, design and materials. Although the House contains a few idiosyncratic features, the BAR was justified in exercising its discretion to conclude that overall it represented a harmonious addition to the neighborhood. Accordingly, the court finds no unequal treatment by the BAR based upon the House of the Future exhibit.

44. As noted above, the Hatman Mural appears to be an antebellum recreation of a cartoon character comprised entirely of hats. The mural was most likely first conceived to promote a hat store. It has a longstanding presence in the Old and Historic District. It is painted in pastel-shades reminiscent of Charleston's famous "Rainbow Row" colors. It is not large. Based on the testimony received, and the court's view of the Hatman Mural, the court finds the BAR's exercise of discretion in permitting the Hatman Mural to remain and, indeed, to require its repainting along historically accurate lines, to be reasonable.

45. The tank mural, Plaintiff's Exhibit 25, is a tank with a scene containing a commercial message painted on it. It is located in a combined office and industrial area that is across from the shipyard. It is not in the Old and Historic District, but again exists in the less exacting Old City District. Although there are a few old brick homes nearby, the court noted during its view that those historic homes were in disrepair and appeared to be abandoned. Modern apartments are also in the vicinity.

46. Preservation Officer Chase testified that a mural has existed on that tank for a considerable period of time. In fact, when the industrial site on which the tank sits was undergoing renovation, the BAR refused to allow the mural to be removed entirely from the tank because it had become part of the historical ambiance of the surrounding area. The BAR allowed the tank to be repainted with a new commercial message, but insisted that the scene in the mural remain. Based on the testimony at trial, and the court's view, the court finds the tank mural to be an appropriate exercise of the BAR's discretion. It represents a totally different mural from Plaintiff's mural, and is in a vastly different commercial and industrial area in which such a mural is harmonious.

47. Another exhibit challenged by Plaintiff is the structure known as the "Camouflage House," depicted at pages 176-181 of Plaintiff's Exhibit 2. It, too, was part of the Spoleto Festival and was a temporary exhibit for that summer, not exceeding four months in display, and required repainting of the house to original color upon the exhibit's removal.

48. The Camouflage House was a testament to historic preservation efforts following Hurricane Hugo. Based on extensive historical research by a team of preservation consultants with the Historic Charleston Foundation, a paint chart entitled "The Authentic Colors of Historic Charleston" was compiled, which correlates with events of historical significance to Charleston. As one commentator noted:

The colors continue this story by telling of geographic place (peninsula city red, low-country earth brown), its economy (rice field golden brown, crushed oyster shells), architecture (plantation red brown, battery mansion mint), famous families (Aiken light pumpkin, Edmonston peachtone), and military events (Fort Sumter deep stone, rebellion blue black).

Id. at 178. The Camouflage House was a typical Charleston single house, one of the single-room-wide houses with piazzas found all over the City. It was painted in a standard woodland camouflage pattern utilizing 72 historically-accurate colors, which were identified, by stencil description, on the house, e.g., "Hugenot Deep Brown," "Peninsula City Red."

49. The Camouflage House was not located in the Old and Historic District, but rather, was located at the dividing line between an historic area in the Old City and a nonhistoric-status community of East Side. In fact, it is only about one and one half blocks from the House of the Future. The exhibit's purpose was described as:

By using all seventy-two colors on one house in a standard woodland camouflage pattern, [the artists] focused on aspects of the city's urban preservation (the buildings that lie outside the historic district and whose residents do not have the means to undertake exacting restorations) and the military (its active role today as the largest employer in the greater Charleston area) that are less visible, even hidden, or, if you will, camouflaged by the "official" historical reading of the city.

Id. at 178. At trial, Plaintiff argued that the BAR should have found the Camouflage House at least equal in garishness to his own mural. Plaintiff ignores the fact that the colors used in