In September of 2018 the Philadelphia Historical Commission voted down a nomination submitted by Philadelphia’s Magic Gardens to have a mosaic on the exterior of Painted Bride Arts Center placed on the local historic register for legal protection. The colorful artwork is now covered in black construction netting and obscured from public viewing. | Photo: Michael Bixler

Disclosure: Sharon Barr was a member of the Painted Bride Art Center’s Board of Directors in the early 1990s and rejoined the organization in 2018. The opinions expressed in this editorial are hers alone and not those of the Board of Directors or staff of the Painted Bride Art Center.

In 1984, the Painted Bride Art Center, an innovator in Philadelphia’s alternative and community arts movement, moved into a nondescript commercial building at 222 Vine Street. It is hard to imagine now, but Vine Street was then a darkened street with a feeling of abandonment. While Old City industrial spaces were being converted to lofts and galleries were opening, the walk up 2nd Street still went through dead zones.

Nine years later, celebrated local artist Isaiah Zagar completed a wildly colorful and imaginative mosaic covering the walls of the Painted Bride. Thousands of fragments of tiles and shards of mirrors were affixed to the wall in a colorful display with adhesive and grout. It was a gift to the art center, as the founders and Zagar were old friends.

In 2017, long after the neighborhood, the art world, and the funding community had changed, the Painted Bride concluded that it could no longer maintain the building and put it up for sale. An outcry over the potential loss of Zagar’s mosaic erupted. Philadelphia’s Magic Gardens, the non-profit steward of many of Zagar’s mosaics, nominated the Painted Bride Art Center building to the Philadelphia Historic Register of Historic Places over the objections of the staff and Board of Painted Bride. It opposed the nomination because making the building a landmark would significantly reduce its resale value, denying the organization funds that would be used to further its mission elsewhere. On September 14, 2018, the Philadelphia Historical Commission (PHC) declined to approve the nomination after hearing passionate testimony from both sides.

I believe that the PHC made the right decision. I reach this conclusion not because I don’t like the mosaic or don’t think Zagar is an important artist. The Painted Bride case arises at the intersection of two thorny areas of historic preservation: granting landmark status to the work of a living artist and designation of a building over the objection of the owner, where there are no available financial incentives in return for the designation. I think both issues are problematic individually. When found together in the same case, I believe the decision should almost always be “no.”

Conflicting Perspectives on Historic Protections

What does it mean to designate, or “landmark,” a building as historic? Most of us are familiar the concept of historic landmarks, the places that are so critical to our understanding of our shared culture and history. We know about the U.S. National Park Service’s National Register of Historic Places, that includes buildings in Philadelphia like the Academy of Music to historic vessels like the USS Olympia. But designation produces very different results depending upon who is doing the designating. Designation by the federal government alone does not prevent demolition or alteration of a building. In Philadelphia, however, the placement of a building on the local register means it cannot be significantly altered without the PHC’s approval.

The National Register process uses similar standards for historic designation as Philadelphia. But there is one important difference that matters in the Painted Bride case. The National Register process imposes a much higher standard on buildings that achieved their historical significance within the 50 years prior to designation. The process is even more stringent when the person who gives a building significance is still alive.

There is a good reason for this. What distinguishes something as being historically, rather than artistically, significant is the passage of time. This is not just a question of the evolution of taste, but of the evolution of values. The world is replete with artists and authors who were revered in their lifetime, then forgotten.  And vice versa.

As the federal guidelines for evaluating and nominating historic properties states, “The nomination of such properties is strongly discouraged in order to avoid use of the National Register listing to endorse the work or reputation of a living person. Periodically, however, sufficient scholarship and evidence of historical perspective exist to list a property associated with living persons whose active life in their field of endeavor is over. In these instances, sufficient time must have elapsed to assess both their field and their contribution in a historical perspective.”

Our notion of what kinds of structures ought to be protected may also change over time. Boston has seen spirited debate over the designation of the iconic Citgo sign in Kenmore Square. While the designation enjoyed wide popular and political support, some opposition has arisen because of Citgo’s ties to Venezuelan dictatorships. Perhaps future generations will object to preserving an advertisement for a fossil fuel company.

Isaiah Zagar’s mosaic on the exterior of Painted Bride Arts Center in 2012. | Photo: Beyond My Ken, Wikimedia Commons

Even Zagar’s own dreams in 1993 for what his work represented might not sit well with preservation advocates today. In a Philadelphia Daily News article from 1993 the artist stated, “This is only the beginning of my dream for Philadelphia…my dream is to turn all of Philadelphia into tile city—to turn all these ugly old brick and stucco walls into a manifesto of magic.” In the early 1990s, when Philadelphia seemed down and out, struggling to bring life into stark and sometimes desolate streets, plastering the city with tile and mirror might indeed have seemed a worthwhile alternative to gloom and blight. Today, we value our brick and stucco neighborhoods that have seen investment that 30 years ago seemed unimaginable. Not everyone would agree now that tile and mirrors enhance brick and stucco. 

The concept of public visual art itself as the basis for a historic designation also is not always clear. A unique example of this dilemma was recently described in the recent New York Times article, “What Happens When Site-Specific At Outlasts Its Surroundings?” When architect Phillip Johnson’s AT&T skyscraper on Madison Avenue received landmark status in New York City, the fate of a 1991 fresco in the lobby by artist Dorothea Rockburne was left uncertain. The designation did not cover this well-known, site-specific work. Rockburne has been quoted in the media as stating that, because her art was in response to a specific site and commission, it wouldn’t “sing” in another location, that “to take them apart would turn a significant in-situ situation into decoration.” 

In Houston, a petition signed by over 16,000 sought landmark status for a graffiti installation on a railroad bridge owned by Union Pacific. The Houston Historic Commission declined to designate the artwork, although in this case punting, stating its jurisdiction didn’t extend to “paint.”

It is clear that this most recent effort to designate the Painted Bride building was about the mosaic, and not about the building or the Painted Bride itself. In its nomination submitted to the PHC, Magic Gardens spoke of both the importance of Zagar as an artist and the contributions of the Painted Bride to the cultural life of Philadelphia. But, when the Old City Historic District was added to the Philadelphia Register in 2003, the Painted Bride’s building was considered “noncontributing,” meaning the building, despite the art center’s long-time contribution to the Philadelphia art scene, was not part of what made Old City historically significant.

You may now be thinking, “But how do we protect the art?” Loss of artwork by living artists is, in fact, protected by law, but it is not through historic preservation law. The federal Visual Artists Rights Act of 1990, a kind of copyright law, gives artists specific rights with respect to their work, including the rights to “prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation.” These rights are considered “moral rights” and, in direct contrast to historic preservation law, they are personal rights that belong to a living artist, not to the public at large. Under VARA, an artist must be given the opportunity to preserve, protect and, perhaps, remove their work if the place in which it resides is at risk of being altered. Interestingly, artists can, and often do, waive their rights under VARA in order to receive important public art commissions so that property owners can make decisions about real estate without these legal constraints.

For Whom Does Designation Serve?

In evaluating a historic preservation case like the Painted Bride, I believe that the PHC should consider whether and why the owner of a building objects. Does it matter, as in this case, that the artwork that is driving the designation requires substantial sums to be restored and maintained? Does it matter that the designation will substantially devalue the property?  I think the answer to both questions is “Yes.” Here is where Philadelphia’s historic preservation ordinance falls short.

There is no question that, in many cases, a city may designate a building over the objection of the owner. This has been settled law since the United States Supreme Court upheld the right of New York City to declare Grand Central Station a landmark over the objection of the Penn Central Railroad in 1978. Penn Central claimed that requiring it to preserve Grand Central Station–they had wanted to build a skyscraper over it, but the plan was rejected by the Landmarks Commission– amounted to a “taking” of their property, for which they should be compensated. The Supreme Court did not find a “taking,” granting a big win to historic preservation. But the Supreme Court decided the way it did partly because it found that, based on projected future use of Grand Central, Penn Central could still earn a “reasonable return” on its property.

Since then, the courts, including the Supreme Court, have been all over the map on when a regulation goes too far in limiting the use of property. Each case almost stands on its own set of facts. Because of that, I can’t say exactly how a court would have ruled in the Painted Bride case had the PHC gone the other way. Many more facts would have had to be developed, options considered, scenarios played out. But I do suggest that an ordinance that does not consider these factors may be at risk of that challenge.

The final report of the Philadelphia Historic Preservation Task Force acknowledges that current City policy provides no incentives targeted at historic properties. Thus, the Philadelphia Historic Preservation Ordinance is all “stick” and no “carrot.” The report was not specifically concerned with the issue of owners whose buildings are designated over their objection and doesn’t address that specific legal concern. Mostly, the Task Force was concerned with ways to get owners to voluntarily designate their buildings and realized, with good reason, that many building owners do not willingly submit themselves to more restrictions with no financial compensation.

Lest the reader think that I don’t care about the vibrancy of Philadelphia’s streetscape or public art, nothing could be farther than the truth. I am just not convinced that the “stick” part of historic preservation, Philadelphia style, is the way to do it. An article by the National Trust describes an effort to raise a fund to preserve Isaiah Zagar’s mosaics across Philadelphia, raising public and private money to preserve the Magic Gardens. I applaud that effort.

Indeed, I think that designating the work of living artists, over the objection of owners, could have the unintended consequence of less art, not more. As in with the Houston railroad overpass, an owner is going to be more likely either to just remove artwork or not let it go up in the first place, if they thought the result of the artist becoming famous, or the artwork becoming beloved, was that alterations to the building became illegal.

While I agree with the decision of the Philadelphia Historical Commission, I hope that this is the beginning of a discussion about the value of public art, and how we preserve it, not the end.

***

Soapbox gives readers, contributors, and staff of Hidden City Daily the opportunity to share their thoughts on topical issues with smart, engaging discussion. Have an idea for an op-ed? Drop us a line and join the conversation: mbixler@hiddencityphila.org