January 27, 2004
Mayor Launches Public Process On Murals Proposal
At Tuesday evening's meeting of the Citywide Land Use Group, Mayor Vera Katz began the process of public input on her proposal to remove murals from the regulations of the City's sign code.
The meeting was well-attended by representatives from every neighborhood coalition in the City, other involved parties (such as Metro Murals and Clear Channel), and interested observers.
In her opening remarks before turning things over to Hannah Kuhn (Policy Development Manager in the Mayor's Office) and Tracy Reeve (Deputy City Attorney in the City Attorney's Office), the Mayor said, "The City Council didn't want to put restrictions on murals, but was forced [to do so] by court decisions."
She also explained, demurring from rehashing the eventual conflict over the matter, that Commissioner Randy Leonard had been very interested in trying to resolve the court issue, but that dispute will probably be sitting in the courts for awhile.
"I basically allowed Randy to go through [negotiating] some recommendations," the Mayor said, "but I didn't like the impact of what I saw,"
Katz explained that she wanted to try to solve the murals issue and put the billboard issue to the side. Her eventual brainstorm, she said, was that the impasse might be resolved if the City treated murals as public art, and did so through the already-existent public art process at the Regional Arts & Culture Council.
"By setting [some] criteria," the Mayor explained, "we would craft some language that met the constitutional objections."
And so, just slightly over a month after first introducing her proposal, the Mayor was ready to bring it to the City's neighborhoods, other stakeholders, and additional groups to begin the public process.
Before we get into the questions raised by the members of the Citywide Land Use Group, e should catch up on what's thus far been generated in terms of the Mayor's proposal, and some background on how the murals issue has progressed. Much of this was covered by presentations from Hannah Kuhn and Tracy Reeve, but is echoed by draft material distributed at the meeting, which is where we'll turn now.
A draft document entitled "A New Approach to Murals in Portland," dated January 2004, explains:
Prior to 1998, the City exempted murals from its sign regulations. In 1998, AK Media, the largest owner of billboards in Portland, filed a lawsuit against the City claiming that it was discriminating against advertising in favor of murals, and was therefore in violation of the Oregon and United States Constitutions. The court ruled in AK Media's favor, finding that the City had made an unconstitutional distinction between two types of speech, based on their content. The City was faced with the choice of not regulating signs at all, or regulating murals as signs. As a result, the City changed its Sign Code to remove the exemption for murals and now regulates both murals and commercial signs the same.
At it stands today, there is a judgement against the City for approximately $1.2 million. That figure is meant to represent the business lost by AK Media (now owned by Clear Channel) from the time the City instituted what was determined to be an unconstitutional sign code to the time the City altered the sign code to eliminate the aspects deemed so unconstitutional. Whether or not this judgement will stand, be reduced, or be increased remains to be seen as the case continues to wind its way through the legal system.
Under the Mayor's proposal, all public art including but not limited to murals would be exempt from the Sign Code. Murals would be "regulated" through the existing RACC process for public art, "regardless of whether the images are commercial or non-commercial" -- a facet of the proposed process which the City believes will pass constitutional muster.
Expanding slighlty the existing RACC criteria for public art, the draft criteria for murals currently includes: artistic quality; context; media; scale; diversity; feasibility; originality; structural and surface soundness; building owner's signed easement form; building owner's signed agreement for maintenance; community support; lighting provisions; public safety; and accessibility.
On that matter of an easement, the draft proposal reads, in part, as follows:
Building owners who wish to sponsor or "host" RACC approved public art murals may do so by granting an easement for placement of a public art mural on their building to the City. Easements will be for five or more years.
This is meant to satisfy the requirement that public art be sited in public spaces.
Returning to the Citywide Land Use Group meeting, much was made of the nature of the public process now begun. "You don't just get a finished legislative package," said Hannah Kuhn, comparing this process to others. "We're coming to you with a concept [and] looking to you all as experts."
Including both commercial and non-commercial murals within the proposed process, said Tracy Reeve, "might elevate the quality of commercial art." Several members of the CLUG also considered this a potential benefit of the proposed policy.
Reeve also indicated that while court decisions in other jurisdictions have granted more leeway to government entities when considering "public" art -- meaning in a role as sponsor, patron, or owner (for example, Federal decisions regarding the National Endowment for the Arts) -- she was not aware of any precedents in Oregon either way, a sense echoed to me later by a representative of Clear Channel.
One aspect missing from the proposal is any sort of appeals process, to be called upon, for instance, when a mural application is rejected by RACC.
"Right now there's not an appeals process at RACC," said Reeve. "We haven't specifically discussed an appeals process yet." It was argued out by others that RACC has a good reputation for positive relationships with artists, and so perhaps such an appeals process wasn't strictly necessary.
Still, appeals-related concerns were mainly expressed when it came to two potential circumstances: one in which a local sign company applied for a commercial public mural and was denied; the other when objections to a mural project arose from the neighborhood intended to be the site for the project. At this stage of the draft proposal, these questions remain open subjects, and will no doubt be reflected in the continuing public process.
"We left that [question] kind of vague," said Kuhn, "because we wanted to come to you first."
Returning to some of the legal questions, Reeve also explained that when the City Council moves to amend City code to adopt this new proposal (or rather, should they do so), it would be in the form of an ordinance which exempts from the sign code all public art that has gone through the RACC process. Further, they would include a "severability provision" so that, should a court declare this new approach to murals unconstitutional, the rest of the existing sign code would remain intact (for what it's worth, this severability approach is common at the level of the U.S. Congress when they adopt measures that are likely to be controversial or challenged by one party or another).
Some concern also was raised that one party (or company) could decide to buy up property all over town and apply to place different murals on each, all promoting itself. One member of the Group asked if some sort of anti-monpoly provision could be included.
"It's legally problematic the more restrictions you put in," said Reeve. And Rose Greigo of Metro Murals suggested that the mininum 5-year term of the required easements might serve as a disincentive to that sort of thing, under the premise that few companies would want the same advertisement in place for that long.
Bonny McKnight, coordinator of the Citywide Land Use Group, suggested however that there might be nothing inherently wrong, given the fact that under this proposal each individual mural would still have to meet the criteria outlined for public art, with Nike wanting to spend all its money beautifying the City.
As the meeting wrapped up, the question of a timeframe for implementation of this proposal was raised. On this subject, Kuhn had earlier in the meeting said, "We haven't set ourselves an ultimate deadline."
In the end, it did get a little more specific.
"Before the next Mayor comes in?" one member of the group asked.
Kuhn's response: "Well, yes."