A Warning that the Mural Ordinance May Not Be Enough

KCET Departures "Writing on the Wall" guest editorial series continues with Dennis Hathaway, president of Ban Billboard Blight, which began in response to an awareness of "unpermitted commercial advertising signs."

By Dennis Hathaway

If one of your neighbors wants to hire an artist to paint a mural on an outside wall of his or her house, should you and your fellow homeowners have the right to say "No?" And if so, how should that veto power be enshrined in Los Angeles city codes?

Those are two questions central to the debate over a proposed new mural ordinance that the City Council will take up at its August 20 meeting. And they illustrate the ongoing tension that has been building between the freedom of artists to express their ideas, and the desire of residents for control over the visual qualities of their neighborhoods.

A third question that hasn't generated as much heat is whether or not the ordinance is free of loopholes that would allow the spread of commercial advertising in the guise of pure artistic and cultural expression. To some, this is the major question regarding the ordinance that would lift an 11-year old ban on murals and put in place regulations of an art form that once gave the city the title of "mural capital" of the country.

Before reflecting upon these questions, a brief history is in order. In the city's first comprehensive sign ordinance, adopted in 1986, murals were classified as wall signs, with specific limits on size and placement.

However, the city's Cultural Affairs Commission was given the power to re-define wall signs as murals, and exempt them from the limitations on commercial signs, if they were permanently painted on a wall and any text occupied no more than three percent of the surface area.

Advertisers and sign companies obviously smelled an opportunity and one of them sued the city, arguing that the power to exempt murals from regulations on commercial signs rendered the sign ordinance unconstitutional, and therefore unenforceable. A federal judge agreed, and in order to head off a threatened flood of ads plastered on the walls of buildings throughout the city, the City Council adopted a new sign ordinance in 2002 that revoked the mural regulations and prohibited any new off-site signs, which are signs, including murals, that don't directly relate to a product or service at that particular site.

Passage of that 2002 ordinance didn't stop legal attacks by sign companies, though, and in 2008 the city began the process of rewriting it in ways intended to preclude future challenges.

The subject of murals immediately came up in public hearings, with artists and representatives of arts organizations complaining that by not allowing murals the city had turned its back on one of the city's most important cultural and historic elements. In response, planners decided against including any mural regulations in the sign ordinance, and instead began researching how other cities handled the permitting of murals, with an eye toward writing a completely separate mural ordinance that would avoid potential legal issues involving commercial signs.

Almost five years later, after extensive research, public outreach, and hearings, that mural ordinance is on the desk of city councilmembers. An earlier version approved by the City Planning Commission didn't allow murals on single-family residences, but that drew objections from some arts organizations, councilmembers, and others where murals are considered an important part of the cultural life of the community.

As a result, two versions of the ordinanceare before the council. One that retains the single-family residence ban, and one that doesn't, although people in individual communities could seek a zoning overlay that would ban or otherwise restrict murals.

This part of the proposed ordinance, known as the "opt-out" provision, has provoked widely divergent opinions. Many in the arts community oppose any restrictions on the location of murals, while many members of homeowners associations and related groups see murals as potentially degrading property values, attracting taggers and gang members, and just altering the character of a neighborhood in negative ways.

Some of these groups have proposed an "opt-in" process whereby communities that want murals could adopt zoning overlays known as specific plans that lift the general mural restriction on single-family homes.

Thus far the debate has featured at least as much heat as light. There are charges that more affluent communities on the city's Westside and parts of the San Fernando Valley are attempting to impose their aesthetic and cultural values on predominately Latino communities where murals are deeply connected to the cultural history of those communities and the strives of their residents.

Add a segment of the arts community that believes in the inviolability of artistic expression. In other words, if a homeowner wants a mural instead of some bland, pastel paint on a wall of the house or garage door and an artist agrees to do it, what business does the city have interfering?

Given the demographics of the City Council and the realities of political power, it seems unlikely that it would approve the ordinance without any restrictions regarding single-family homes. That leaves it with "opt-out" or "opt-in," or something else yet to be publicly scrutinized, which raises a further question: Will these ideas actually work in practice?

New specific plans or amendments to existing specific plans that govern various areas of the city can be initiated by the City Planning Commission, or the council member representing that area. There is no formal mechanism whereby the process of establishing these overlays can be initiated by neighborhood councils, or by some public petition process.

But suppose the process got started, then how long would it take? City budget cuts have taken their toll on the planning department and the city attorney's office, and it's easily conceivable that a year or more could pass before a measure would even reach the public hearing stage. And once there, even in areas more amenable to keeping out murals, the restrictions could run into opposition that in turn might erode political support.

Moving to the question less debated but no less critical to the city's public spaces: Will the ordinance withstand possible challenges by the more predatory elements of the outdoor advertising industry?

The issue isn't really speculative. Just drive the 10 freeway downtown and notice the five-story high advertisements covering opposite walls of a building at San Pedro Street. Those ads, which market products and services like cars and banks, are a direct result of the aforementioned legal challenges that singled out the city's mural ordinance more than a decade ago. And there are other signs like these downtown and elsewhere, enabled by a judge's ruling.

Just as there are artists who believe in absolute freedom of expression, there are sign company lawyers arguing in court to this very day that the First Amendment protects their right to put up billboards and other kinds of advertising signs wherever they can find a willing property owner.

You can be assured that these lawyers have taken a careful look at the new mural ordinance, alert for cracks that could be levered open to allow more outdoor advertising.

At this point, we can only trust that the city attorney's office, which has actually won important victories over sign companies in court, haven't left any places for those cracks to develop. Because if they have, we can be assured of more litigation and probably more commercial advertising as part of the city's visual landscape.

Finally, there is a question that ought to be asked of all proposed city ordinances, but too often is given short shrift: Can it be enforced? Because of budget cuts, the enforcement arm of the city's building department has been decimated, and there's no help on the horizon.

Since the ban on new murals in 2002, an untold number of new ones have appeared, with a total of 52 proposed for "grandfathering" under the new mural ordinance. Ads purporting to be art murals have been part of an unsavory collaboration of advertisers and muralists who have ignored the fact that all signs, with a few narrow exceptions like small lawn signs, require city permits and inspection.

Examples include recent murals that were clearly intended as ads for the movie, "Fruitvale Station." Even with the minor risk of citation, the murals would have done their work of promoting the film before having to be removed. Less egregious examples of this behavior would be artists and property owners simply ignoring the permit requirements because of the small chance of getting caught.

At a meeting of the City Council's Planning Committee, member Gil Cedillo framed the mural issue as one of the city needing to free artists unfairly targeted by the mural ban to do their work. This sort of simplification of a complex issue doesn't serve anyone, and hopefully other councilmembers will give it the careful, balanced consideration it deserves.

Top: Graphic by Ed Fuentes.