Critics say disdain for graffiti drove murals ordinance

Freedom-of-expression criticisms put a preliminary halt to a city ordinance proposed by Aldermen Tony Zielinski and James Witkowiak that would regulate all murals in the city, requiring permitting and annual inspection fees.

Currently, noncommercial murals are not subject to local restrictions. The ordinance would define what constitutes a legal mural and where it may be painted.

The local arts community, caught almost unawares, successfully pressured aldermen to remove the ordinance from the Feb. 3 agenda of the city’s Zoning, Neighborhoods & Development Committee (ZND).

But the debate about the intent and scope of the ordinance has opened a can of worms-out popped concerns about censuring or restricting public art, misgivings about the overextending reach of local government, the political difficulty of distinguishing illegal graffiti from graffiti art, and allegations of improper aldermanic behavior. 

The Ordinance as Proposed

The ordinance (Common Council File 081236) may still be considered, but Zielinski told the Compass it is not a current priority. He called it “a work in progress” and wants to gather more input before bringing it before the ZND, which is chaired by Witkowiak and on which Zielinski serves. Thus, its language may change.

At its Jan. 8 meeting, the city’s four-member Zoning Code Technical Committee (ZCTC) considered the legality and enforceability of the proposed ordinance. ZCTC recommended striking two of its Whereas clauses. Whereas clauses appear in a resolution’s preamble and provide the rationale or background for legislation. ZCTC’s Stuart Mukamal said two mural ordinance clauses would conflict with the First Amendment of the U.S. Constitution, which guarantees no law should be made “abridging the freedom of speech.” The clauses were “constitutionally problematic” because they referenced the content of murals.

The original Whereas clauses alleged a link between some murals, illegal graffiti, and property values:

“Whereas, The Common Council finds that some murals contain graffiti-like symbols which encourages [sic] vandalism of structures in the vicinity of those murals; and Whereas, The Common Council therefore finds that some murals are undesirable to the neighborhood and may lead to decreased property values…”

Zielinski was presenting the ordinance at the ZCTC meeting. When it became clear First Amendment issues were being raised, Zielinski interrupted Mukamal, slammed his briefcase, and left the ZCTC meeting abruptly. He later told the Compass he felt upset because he felt the meeting was wasting people’s time.

“In fact, the next day, he had the changes to our staff, which were very minor, I mean, they were very easy to correct. They could have been corrected prior to the meeting. At the time, I thought that we were just wasting everybody’s time.”

Despite its concerns, however, the ZCTC voted 4-0 to approve the ordinance-provided that the above clauses were removed and additional legislative references, including language about existing city commercial sign regulations, were added. The committee decided the following Whereas clauses would legally justify the ordinance and that its other provisions were essentially enforceable.

The remaining Whereas clauses defined “murals” and argued the city is empowered to enact regulation to prevent “visual clutter”:

“Whereas, Murals are pictures, paintings or other art work applied to and made integral with an exterior wall surface of a building, structure, fence or garden wall and which contain no references directly related to the promotion of any product, business or service; and Whereas the Common Council finds that the objects depicted in some murals may cause distraction of motorists and lead to unsafe traffic conditions; and Whereas The Common Council is interested in preventing blight and protecting aesthetic qualities by preventing visual clutter; and Whereas Pursuant to authority granted to the Common Council under s. 4-10, City Charter, the Council wishes to ensure that murals are located and constructed in a way that protects public health, safety and welfare…”

Removing the unconstitutional Whereas clauses doesn’t change the function of the ordinance, but it disconnects it from a stated purpose to combat illegal graffiti-a fight in which Zielinski has branded himself as a leader over the years.

Zielinski is chair of the Anti-Graffiti Policy Committee. In 2006, he cosponsored a press conference in a south-side alley to draw public attention to a 20-year-old Wauwatosa man charged with graffiti vandalism. In 2007, he pushed through an ordinance to spend $28,000 on 12 “tripwire” cameras in an effort to catch graffiti vandals in the middle of the night, saying the cost of removing illegal graffiti was $1.5 million per year. In October 2008, he held a press conference to receive a $1,500 anti-graffiti grant from Target.

Yet in an interview with the Compass after the ZCTC meeting, Zielinski denied that this ordinance was motivated by rationales stated in the stricken Whereas clauses. He said the ordinance was not motivated by a desire to combat illegal graffiti.

“That’s not why we’re doing this,” he said. “We’re doing this for visual clutter, traffic hazards, and blight, and to seek to avoid blight.”

Ordinance Under Fire

Beyond concerns about the legality of its stated rationale, the Milwaukee arts community mobilized in opposition to both the spirit and particulars of the ordinance. They felt it conflated legal graffiti-style artwork with illegal graffiti. And they complained that the proposed permitting process and associated inspection fees would discourage public art in the city.

Sura Faraj is a Riverwest resident who helped organize Art in the Alleys, a grassroots project that teamed local artists with residents to paint 17 garage murals facing a Riverwest alley last year. She sees the project as a way neighbors engaged to improve their neighborhood, in this case an alley known for crime, drugs, and litter. “I view it as an act of reclaiming our space,” she said.

When Faraj heard about an ordinance that would not permit murals that face alleys, she was distraught. “I think it’s ridiculous. We should be doing everything we can to promote art and beautification, not penalize it.”

Faraj said she felt the motivation for this ordinance was to prevent graffiti-style murals. “The source for that is disdain for that kind of art,” Faraj said. “There should be distinctions made between graffiti as vandalism and graffiti as artwork.”

As it was written, the ordinance would require property owners and artists to register with the commissioner of city development prior to mural permit approval. Applicants would face a $100 permit fee, $60 plan review fee (requiring four sets of scale renderings prior to approval), $3 processing fee per permit, and an annual $75 inspection fee. Murals would be prohibited from exceeding 75 percent of a façade, from covering windows or doors, or from being erected within 300 feet of a property with an existing recorded mural. Building owners with existing murals would be required to record them with the city.

If they had faced these fees and requirements, Faraj said her group would not have been able to proceed. Faraj said her team did Art in the Alleys for no cost, with paint donated from local businesses. The only thing they paid for was getting listed in the Riverwest Artists Association art walk brochure.

Zielinski told the Compass the $100 fee could be reduced to $40 and a provision prohibiting alley-facing murals will be removed.

Faraj cited more than just pragmatic concerns.

“It just shows a complete lack of vision about community building, freedom of expression, art, and what makes a livable neighborhood,” she said, adding that she feels it’s one thing to regulate public property, but another to interfere with art done with consent on private property. “The next thing we’re going to hear is we can’t put bumper stickers on our cars.”

Faraj also found the situation ironic as the city’s own public relations director, Julie Ferris, highlighted Art in the Alleys on her “Insight Milwaukee” program. In her letter opposing the ordinance, Faraj wrote, “We believe these spaces are much less likely to see graffiti, since they are no longer blank canvasses.”

Barrage of Criticism

Faraj was not alone in her opposition.

“It’s the considered opinion of the Bay View Arts Guild that creative self-expression should not be regulated or limited in any way by government. There is a distinct difference between a mural and graffiti, and we do not see how this proposed ordinance will do anything to impact graffiti vandalism,” BVAG’s Peggy Brown said in a statement to the Compass.

The ordinance would impact murals large and small, prominent and discreet, in public or private view.

Milwaukee’s most prominent mural is probably the eagle-and-dove “Mural of Peace” on the south wall of Esperanza Unida, whose executive director Robert Miranda compared the proposed ordinance to the “Big Blue shirt debate.”

“The shirt proved that public discourse can compel the bureaucrats and the politicians to give up on the idea of determining what art in their eyes is…” Miranda wrote in a statement to the Compass. “The public is a better judge for what should stay in public view. Democracies are designed to allow the public to make the choices regarding matters such as this. Regulating art in Milwaukee simply obstructs the public’s opportunity to practice its fundamental freedom of speech/expression to approve or disapprove of what stays in the public view or not.”

Jennifer Morales, school board member and former owner of Broad Vocabulary, wrote to the Common Council opposing the ordinance. She called it a “tax on art” and criticized the city for scrabbling for new revenue streams through mural inspection fees.

Zielinski disagreed. “It’s not a tax on art; it’s an attack on blight,” he said.

Faced with calls and emails from local artists, Zielinski seemed flexible about altering some provisions, including fees and distance requirements. But he rejected the idea that his ordinance violated freedom of expression. He called critics who were not attorneys “reckless” with this charge. “It’s reckless and it’s unfair, because there’s no basis in fact whatsoever to that accusation,” Zielinski said.

In an interview with the Compass, Zielinski could not estimate how many murals currently exist in the city, nor did he point to a particular deteriorating or poorly maintained mural-or one that distracted motorists. He said he wants to regulate murals like commercial signs and said this ordinance would provide a mechanism to ensure murals are properly maintained.

“I think the premise is that in a civilized society you have some regulations, you have guidelines, you have standards,” Zielinski said. “You just don’t plop things up all over the place.”

Feeling Targeted

Another vocal opponent to the ordinance was Sarah Dollhausen, executive director of TRUE Skool, a Milwaukee nonprofit whose mission is “to use cultural arts to educate and empower youth from different backgrounds to become leaders for positive social change in their communities.” One of TRUE Skool’s projects is painting community murals. For five years they have painted over outdoor surfaces that once were frequently covered with illegal tagging. The organization works with youth who have committed graffiti-related offenses, redirecting their artistic energy to paint upon legal surfaces.

Last July 17-18, TRUE Skool completed a mural on a wall at 12th and National, including the words “From the youth, to the community” painted in graffiti-style lettering. The project was funded by the Greater Milwaukee Foundation’s Youth-In-Service Fund.

Dollhausen believes the proposed ordinance targets TRUE Skool’s murals, like this one, because some people are uncomfortable with graffiti art even when done in a legal context.

“We found in the [existing] zoning code it states specifically that painted murals not containing commercial messages are exempt from permits,” Dollhausen testified before the ZCTC. “And I believe this ordinance is trying to target specifically the type of murals that we’ve done over the years.”

Sharon Blando, a special enforcement inspector for the Department of Neighborhood Services’ Anti-Graffiti Program, testified before the ZCTC that the ordinance was not directed at TRUE Skool and that regulating mural content was never the ordinance’s intention.

“Graffiti, if it’s put on a legal surface, is definitely an art form. And that is-it’s a very popular art form, and that is not something that we are trying to regulate,” Blando said.

Blando did, however, present the committee with photos she said showed five instances of illegal graffiti in proximity to the TRUE Skool mural at 12th and National.

“The one reason that it has attracted so much graffiti is that it’s a very interesting mural and many people that unfortunately do illegal graffiti are drawn to it. And while they are there they’re leaving their tags,” Blando said. “And while that’s not related to our ordinance for the murals, each incident usually costs, if I have to have it paid for, $150 to clean up. It’s quite an intense area for cleanup right now.”

Dollhausen offered to clean up any nearby graffiti. “We have never seen an increase in graffiti from any of the murals we’ve done,” Dollhausen said before the ZCTC, based on TRUE Skool’s policy of surveying the vicinity of its murals for several months after they’re painted. “And any of the murals we’ve done both locally and nationally have never been vandalized themselves.”

Related Allegations

Dollhausen further alleges that Zielinski threatened the funding of Safe & Sound, a Milwaukee nonprofit dedicated to reducing crime, because of its support for TRUE Skool in 2008.

“He did this twice over the summer, called the Safe & Sound executive director and said if you’re going to support TRUE Skool, you know, we’re not going to vote for your funding,” Dollhausen testified before the ZCTC.

In an interview with the Compass, Zielinski initially confirmed that he called Notestein about TRUE Skool funding, but said he did not immediately recall the details. A few days later, he told the Compass he had called to relay residents’ concerns about feeling left out of TRUE Skool’s mural planning process.

“When I called the executive director of Safe & Sound I just expressed the fact that I had concern from residents that they felt they weren’t getting provided with the opportunity for input as far as these murals in their neighborhood was concerned,” Zielinski said. “There’s no direct mention of funding or anything like that.”

After repeated calls by the Compass to Safe & Sound’s Notestein went unreturned, she called back the day after Zielinski’s follow-up call. Notestein confirmed Zielinski’s account and said she was called by several aldermen-Donovan, Witkowiak, and Zielinski. “I was told by the aldermen they had received calls from constituents complaining about the murals,” Notestein said. “Nobody said anything that was a threat, ever.”

Dollhausen didn’t buy this response. “She [Barbara Notestein] was upset in our meeting [summer 2008] and told me she couldn’t support us if they are getting threats to their funding,” Dollhausen wrote in an email to the Compass.

Confronted with Notestein’s response that she said she had never been directly threatened, Dollhausen questioned why Zielinski would call Notestein about the mural at 12th and National, which is not in his district.

Asked why they were calling her when Safe & Sound had not sponsored TRUE Skool murals, Notestein speculated Dollhausen had told public officials Safe & Sound funded TRUE Skool. In 2008 Safe & Sound did fund TRUE Skool-its after-school program, but not its murals. Safe & Sound also highlighted TRUE Skool in a press release for its May 31 “Basura Bash.”

“What I did say to Sarah is I was concerned funding from the city for Safe & Sound might be jeopardized,” Notestein said.

Notestein was publicly concerned about Safe & Sound funding because of proposed cuts to its piece of the federal Community Development Block Grant (CDBG) pie. She wrote in a July 15 letter to the Community and Economic Development Committee (CEDC), meeting July 15-16, that “The funding plan before you is flawed in two ways and needs to be amended.” When the CEDC, which is the gatekeeper for CDBG money, met July 21, it amended the CDBG plan to restore $25,000 originally cut from Safe & Sound’s Community Partners program.

The city also awarded Safe & Sound $20,000 of CDBG money for graffiti abatement. Safe & Sound has always worked on graffiti abatement, Notestein said. “This [additional funding] is not a change. It’s that for the first time we have some funding for that purpose,” she said. The money is used for Operation Pay Back, which deploys graffiti offenders to clean up graffiti as community service.

Dollhausen maintains Zielinski pressured Safe & Sound to cut TRUE Skool loose or risk its own funding. “I was told specifically after I submitted our RFP for 2009 [to Safe & Sound] that if we couldn’t somehow get Alderman Zielinski or Donovan to warm up to TRUE Skool they didn’t see us getting refunded. I was told there were ‘some conditions that are necessary to continue the support for True Skool as a Safe Place,’” Dollhausen wrote to the Compass.

Zielinski and Witkowiak both serve on the CEDC. In 2009, Safe & Sound is not funding TRUE Skool.

Pabst Mural Controversy

This is not the first mural controversy for Zielinski.

Last March, Bay View artist Julian Correa said he approached Zielinski to seek his permission to erect two murals in his district. Correa was contracted by an advertising agency to reproduce winning artwork in an annual Pabst Blue Ribbon Beer art contest designed to stimulate interest in Pabst through public murals in targeted urban neighborhoods. At this point, neither knew what the artwork would look like.

Correa said Zielinski then told him if the city was okay with it, he was okay with it. Correa said the city told him he didn’t need a permit because there was no commercial message because he was “reduplicating artwork,” despite the Pabst logo. Correa got approval from property owners of Bay View’s Hub Market and the Quick Mart and painted his two assignments in May 2008. The murals were temporary, intended to stay up three months.

Once the murals were up, however, Zielinski’s constituents complained. Zielinski said one of the mural images violated community standards. “I objected to the mural that was on the Bay View Quick Mart where it showed what appeared to be a child drinking from a Pabst beer can,” Zielinski said.

Correa, who had not designed the image, said it was supposed to depict a woman with her head back drinking beer. He said the same questionable image was painted by other artists in other parts of Milwaukee-as well as on a Clear Channel billboard above the Hub Market-without complaint. Correa said Zielinski told him he had constituents who weren’t pleased with it.

“I was getting pressure from the alderman to take it down,” Correa said, adding that Zielinski told him he would go through the city and remove everything Correa had painted if he didn’t remove the mural.

Zielinski said he contacted the property owner and the artist. “The owner of the Bay View Quick Mart said he wants to be a good corporate citizen and he took it down on his own,” Zielinski said.

Correa said he eventually removed the mural, so as not to get the property owner in trouble.

Enforcement Inconsistencies

Last year, Wild Flour Bakery teamed up with Concordia University art students who painted a mural on its southern façade, including images of bread, grains, and the name of the bakery. A few days later, Wild Flour’s manager Dave Dodson got a letter from the city saying he needed approval for the mural. He was told because the name of the business was part of the mural, the mural was legally a sign. Signs require permits-and fees.

He complied, but bemoans the hassle-and the mounting costs of city fees. “It’s crazy how many things you have to pay fees for in this town,” Dodson said. “It’s almost like paying the mafia to just stay in business.”

Across Bay View, however, another business with its name painted in a mural didn’t face the same hassle.

Gary’s Pet Jungle last summer painted a new mural over an old peeled mural, said owner Gary Johnson. The mural contains the words “Gary’s Pet Jungle,” surrounded by animals. Johnson said he had no problems with the city. The mural (sign?) was painted by local tattoo artist Pooh Bear, along with a man Johnson hired who used to illegally tag in Humboldt Park.

Sven’s Café’s iconic Mona Lisa holding a cup of coffee was almost never was legally erected. Because Sven’s sells coffee, the city decided the coffee cup made the mural legally a sign. As a sign, the Mona Lisa was a few feet too large according to the existing zoning ordinance, so Sven’s owner Steve Goretzko had to petition for a zoning variance in 2004.

Dollhausen added that the only time in five years TRUE Skool had to go back to repaint or repair a mural was last year, when the property owner at 12th and National received a letter from the city. At issue was including the text of TRUE Skool’s website address as an “artist’s signature.” The letter argued the web address constituted a commercial message. Dollhausen said city officials had told her it should not have been a problem. But rather than apply for a variance, Dollhausen said TRUE Skool removed the web address to save the property owner trouble.

Broader Context

How does Milwaukee compare to other cities with respect to murals and murals regulation?

In warmer cities like Los Angeles and Miami, advertising banners that wrap around buildings have provided one impetus for more stringent regulation of murals.

In December 2008, Los Angeles approved a moratorium on all new billboards. The rationale was preventing visual clutter and traffic hazards. But because the city did not distinguish between billboards and murals, this meant prohibiting new murals as well-and local artists want distinctions on the books in order to prevent unsightly advertising but allow noncommercial murals.

Portland, Ore. maintains a similar ordinance that does not distinguish murals and advertising by content, only by dimensions. Any property owner desiring a mural larger than 200 square feet and visible from the public right-of-way must apply to Portland’s Public Art Mural Program to obtain permission. Smaller murals require a sign permit.

Not every city is restrictive toward murals. Without requiring any permitting, some have evolved from graffiti-plagued urban labyrinths into beacons of public art.

Philadelphia is widely considered the mural capital of North America. Their city and private foundations sink millions of dollars into creating and promoting community murals. Philadelphia’s Mural Arts Program started in 1984 as the Philadelphia Anti-Graffiti Network and has produced over 2,800 murals, averaging 130 per year. The murals not only employ renowned artists and attract tourists but also are a significant part of Philadelphia’s identity as a city of diverse neighborhoods, said Murals Arts Program public engagement associate Amy Johnston.

But do legal murals deter graffiti?

Philadelphia says yes.

“While we have no hard data on this, we do have anecdotal evidence that the incidence of graffiti has decreased since the Philadelphia Anti-Graffiti Network (1984) and subsequently the Mural Arts Program (1996-present) have been in operation,” Johnston wrote to the Compass.

“It’s been a proven deterrent,” said Shawn James, community arts coordinator and director of the Baltimore Murals Program. A public program with public and private funding, it produces an average of 17 murals per year in a city more comparable to Milwaukee by population. James said murals go through an open process of community involvement and approval; there are no permits or fees.

A 2006 study, “The Mural as Graffiti Deterrence,” published in the journal Environment and Behavior, “investigated whether the use of a colorful mural as a passive thematic prompt could significantly reduce new graffiti attacks in an area prone to graffiti” in New Zealand. Significantly less graffiti was measured near the mural than near the experiment’s unpainted control wall.

In Milwaukee, the trend has been toward blank walls, with existing public murals removed or painted over as they deteriorate. Bay View’s Correa said he fondly remembers the public murals formerly under the bridges at Sixth and Holt and Sixth and Oklahoma. These are now empty, gray walls.

In a taste of how bizarre and frustrating some mural fights have become, the city of Clearwater, Fla. ruled in January that a mural depicting a fish jumping out of the water violated their sign ordinance because it was on the wall of a bait shop. The owner protested-covering his illegal mural by stringing up a banner showing something he wasn’t selling: the text of the First Amendment.

Read File 081236: http://tinyurl.com/cjaups.