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04.12.2019

Who doesn’t like a big bucket of crispy fried chicken (other than my son who is allergic to chicken and my vegetarian friends and family)? Who doesn’t like a big bucket of crispy fried chicken as architecture? Me, for one. This is real. The days of architecture as billboard have not passed.  For all of the obvious reasons – well, at least obvious to those of us who notice these things – this result can (and should) be avoided. But how?

Architecture as billboard has been a tactic since time and memorial. Just visit the pyramids or any historic church and you will see the messages of the day etched into them for all to see. In modern times, the fast food restaurant has been the primary adopter of architecture as billboard with the aim of wetting your appetite for their type and brand of food as one rapidly drives by. So, this big bucket of chicken is nothing new, right? KFC’s chicken box takes architecture as a billboard to a whole new level in the modern era of fast-food “architecture” when mass-production design has actually become more muted and reserved – aka generic. For example, drive by a newly constructed McDonald’s or Taco Bell, and other than the signage and colors, which could easily be changed, there is nothing unique about these buildings other than being surrounded by drive-through lanes. KFC and its parent YUM Brands has decided to buck the trend and take fast food building design to a whole new level of “look at me” architecture. It certainly got my attention. So, what can a local government do to keep its commercial corridors free of this type of being turned into a giant sign?

Zoning regulations are designed to protect the public health, safety and welfare, and time, place, and manner restrictions have generally been upheld as constitutional as long as they do not creep into content and protected speech. Is a sign speech? Yes, and depending on what type of speech it is, there are varying degrees of protection of that speech. So, what about an entire building that carries the trade dress of a company? Is that protected speech? An argument could be made that it is commercial speech, but be careful making that argument as you should be prepared that the entire building could be considered a sign, and the time, place, and manner of the sign is certainly subject to government regulation.

The big bucket of chicken building not only includes traditional wall signage identifying the name of the restaurant, which includes its famous logo, but the entire building is painted in the company’s trade dress – the instantly recognizable red and white stripes of its food packaging. The building unmistakably evokes the brand. One can practically smell the fried chicken just by looking at the building. I am getting hungry just thinking about this building. An effective strategy for sure. But, aesthetically pleasing to the rest of us? Beauty is indeed in the eye of the beholder. To some, this building may be endearing, even beautiful (I need to know who you are, please identify yourself). To others it is a gross display – a middle finger of sorts to the rest of us. (Can you guess the author’s opinion?)

Zoning can regulate on the basis of aesthetics in many places in the United States, but it would be challenging to mandate that the building owner remove its stripes on grounds that they are just plain hideous. On the other hand, if the intention of the building owner is truly to use the entire building as part of its signage, essentially an end run around the jurisdiction’s signage regulations, then perhaps a local government interpret this entire trade dress as part of the signage requiring a massive variance from the sign regulations. This is going to depend on the how the terms “sign,” “mural,” “on-site advertising,” “trade dress,” and the like are defined in the jurisdiction’s zoning ordinance. It may also depend on whether the ordinance addresses the intent of the applicant. For example, if the intent of the building owner is to decorate their building in trade dress, is that truly decorative or it is commercial speech?

It is also going to depend on the will of the jurisdiction to fight the nuances of regulating aesthetics and speech. (I am not even going to mention that the drive through order board and lanes are located in the yard fronting the primary arterial and that there are no windows on the main building façade facing the primary arterial or on the sides of the building. I could go on and on but these are obvious and could easily be addressed by the zoning ordinance). In my experience, some local governments have the wherewithal and the appetite to fight, and others simply do not. In many instances, their ordinances do not give them any legal basis to fight.

The takeaways:

  1. It is easy to discern what a community thinks of itself by the buildings it permits.
  2. It is easy to spot a zoning ordinance that isn’t ready for the fight by the quality of the buildings being developed.
  3. Mind the definitions in your zoning ordinance. If they are incomplete, inconsistent, or ambiguous, then as sure as the sun will rise, someone will drive a truck through the loopholes they create.
  4. Fried chicken is really good. This building is really, really bad.

About the Author: Sean S. Suder, Esq., LEED AP, is Lead Principal and Founder of Calfee Zoning, a consulting affiliate of Calfee, Halter & Griswold LLP, a law firm with offices in Cleveland, Cincinnati, Columbus and Washington, D.C., where Sean is a Partner.  Sean is a graduate of the University of Virginia School of Architecture and University of Virginia School of Law.  He is a frequent author of posts and articles on retail real estate trends, zoning, and urban redevelopment.  Sean can be reached at ssuder@calfee.com or (513) 693-4883.  For more information visit www.calfeezoning.com.

The opinions expressed in this article are solely those of the author and are not the opinions of the law firm of Calfee, Halter & Griswold LLP, Calfee Strategic Solutions, LLC, Calfee Zoning, or any of its partners, employers, clients, or affiliates.

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Sean S. Suder, Lead Principal
513.693.4883
ssuder@calfeezoning.com

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