Public Art Murals: Can Portland Model Solve Legal Dilemma in Los Angeles?

Mural permitted through Portland's public art easement program

The legal black hole into which public art murals have fallen is a source of frustration and even anger for L.A. artists, art organizations, and politicians in areas where murals are significant elements of cultural history and objects of community pride.  Sometimes called the mural capital of the world, the city is rapidly losing that distinction to such cities as Philadelphia, which have thriving public programs to encourage new murals and preserve and restore existing ones endangered by ravages of weather and vandalism.

Why, people ask, can’t a mural be painted on a privately-owned building without risking a citation from the city for violating the sign ordinance?  The ordinance is intended to regulate commercial advertising signs like billboards, so what’s wrong with inspectors who can’t tell the difference between a work of art and a McDonald’s ad?  Or if these murals violate some technicality of the ordinance, why can’t inspectors just look the other way?

It’s scant comfort to tell these people that distinguishing between art and commerce isn’t at issue, and that inspectors failing to respond to complaints about murals would be derelict in their duty, even though writing citations for those murals is probably the last thing they want to spend their time on.   The city’s regulatory process for murals was successfully attacked in court more than a decade ago, as part of an advertising industry strategy to undermine limits on new billboards and supergraphic signs, and understanding the basis of that attack and other legal challenges is essential to finding a way to enable mural activity without opening the city’s visual landscape to a flood of commercial messages.

Before that legal attack,  public art murals were regulated by the City Cultural Affairs Commission, which within certain limits had wide discretion to determine how large new murals could be and where they could be located.  Regency Outdoor Advertising, the company best known for its billboards on the Sunset Strip as well as its litigious tendencies, argued in federal court that allowing the commission this discretion while its own advertising signs had to comply with strict code regulations violated the U.S Constitution.  A judge agreed, and enjoined the city from prohibiting the company’s signs at a number of locations.

In response to these court proceedings, as well as an alarming proliferation of billboards and supergraphic signs, the city adopted a ban on all new off-site advertising signs.   The ban also included supergraphic and mural signs, the latter defined as signs painted on walls with text limited to 15 per cent of the surface area.  Exceptions for these prohibited sign types were made for sign districts, specific plans, and development agreements.

In the meantime, a thousand miles north, the city of Portland, Oregon, was fighting its own sign war against a billboard company (now Clear Channel) that had attacked a provision of the city’s code that exempted public art murals from sign regulations.  The lawsuit led to a ruling that the exemption was unconstitutional,  which had the effect of severely inhibiting a lively mural scene in that city.

Portland’s response was to devise a legal way to exempt murals from sign code regulations by allowing a building owner to give the city a “public art easement” for the wall on which a mural was to be painted.  The city would also provide a certain amount of money towards the installation and maintenance of the mural.  Applications for murals could be made by individual artists, groups of artists, property and business owners, or neighborhood and community organizations.

Some murals were installed after the program got started in 2005,  but complaints arose, most often about property owners being reluctant to grant the easements, ostensibly because this would allow city workers to enter the property for specific purposes, such as performing maintenance on the mural.  There was also criticism arising from the fact that the program was administered by a regional arts organization that some believed had too much power to determine which murals deserved permits and public monetary support.

Back in L.A., responding to calls from two L.A. City Council committees, the city Planning Department in 2008 recommended adopting a public easement scheme like Portland’s.   But that same year, a U.S. District court judge declared major portions of L.A.’s sign code unconstitutional, and the prospect of an onslaught of new advertising signs led  the city to start rewriting the code to address its legal vulnerabilities, and the mural proposal was put on the shelf.

The City Planning Commission began debating the sign ordinance revisions in early 2009.  Adolfo Nodal, then president of the Cultural Affairs Commission, believed the Portland idea to be problematic, and offered his own proposal for permitting murals within the sign code.  Nodal’s proposal limited mural size to 300 sq. ft. and text to 15 per cent of the total sign area.  The image would have to be painted on a wall, and any change of image would require a new permit.  The public easement process would be made available for murals that did not meet those criteria.

After three months of meetings and debate, the Planning Commission adopted a revised sign code which didn’t include Nodal’s recommendation or any other regulation specifically relating to murals.  This was no doubt due to wariness on the part of the City Attorney’s office, which was fighting numerous lawsuits filed in the wake of the aforementioned federal court decision.  In fact, after taking office in July, 2009, City Attorney Carmen Trutanich advised the City Council not to take any action on sign code revisions until after the 9th Circuit Court of Appeals ruled on a city appeal of the district court decision.  (Last month, that court reversed the decision, saying that L.A.’s sign regulations were constitutional)

While all this was going on, the City of Portland was responding to the complaints about the public easement process by adopting an additional measure that permits murals without requiring an easement from a property owner.   Under that ordinance,  images are required to be hand-produced and tiled or painted directly on the wall of a building.  Changes in the images are prohibited, and applicants for such a mural are required to hold a public meeting of interested parties in the neighborhood or community.  Unlike murals that go through the public art easement process, these are not eligible for city funds for installation and maintenance.

Will such proposals work in L.A., and not provide an opening for the outdoor advertising industry to mount new legal challenges to city’s ban on new off-site signs?  Two City Council committees—Arts, Parks, Health and Aging; and Planning and Land Use Management—met last week on the subject and heard from representatives of arts organizations, the city planning department, and city attorney’s office.  The result:

The planning department was directed to report back to the committee on possible regulations, including the Portland public art easement model, and the feasibility of putting a moratorium on the issuance of citations for non-permitted murals.

For more, see:

Portland Public Art Murals Program

Dennis Hathaway

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