ACLU files suit against Cary for violating rights of homeowner
Posted November 19, 2009
Cary, N.C. — The American Civil Liberties Union of North Carolina Legal Foundation filed a lawsuit against the Town of Cary Thursday challenging the town’s assessment of fines against a Cary homeowner who spray-painted a protest on the front of his home.
The town issued a notice against David Bowden last week, noting that his message – with words that some might find offensive – violates size and color limits set by the town’s sign ordinance.
Bowden hired someone to paint the sign on his home after he claimed a road-widening project left his once-arboreal yard, at 305 SW Maynard Road, void of trees and with a steep slope that funnels rain water into his home.
"The town knows about it and nothing has been done about it at all," Bowden said.
Town staff first visited Bowden ask him to change the sign in July.. The violation, which allows for fines for each day the message remains on his house, is scheduled to start Friday. Bowden will be fined $100 for the first day. The fines will increase each additional day.
In the lawsuit filed in the federal district court for the Eastern District of North Carolina, the ACLU alleges that the town’s threats violate Bowden’s right to free speech and to petition his government under the First Amendment to the United States Constitution and similar provisions of the North Carolina Constitution.
The lawsuit asks the court to declare the town’s sign ordinance unconstitutional and to issue a temporary restraining order and an injunction against the Town.
“In order to save itself from embarrassment, the town is attempting to silence Mr. Bowden from engaging in core political speech directed at the very governmental authorities who are seeking to suppress that speech,” ACLU-NCLF Cooperating Attorney Mark Sigmon said in a release. “Enforcement of the Town’s sign ordinance under these circumstances is a clear violation of the First Amendment.”
“Given that we’ve been in contact with the ACLU off and on for the last several months, we’re disappointed in the choice they’ve made today but look forward to a court’s review of our community’s standards," said Susan Moran, spokeswoman for the Town of Cary.
Bowden’s complaints are not news to town leaders. Assistant Town Manager Mike Bajorek said the town has attempted to negotiate with Bowden, but has been unable to reach a satisfactory solution.
"We have gone to him and said, 'We have a design that would help resolve (the drainage issue),'" Bajorek said last week. "He said, 'No. Stay off my property. I want you to buy my house.'"
Bowden said he will never give up, even if it means losing his home.
“If I have to...I will let the mortgage company foreclose on it,” Bowden said.