Caught up in a procedural ‘Catch-22,’ city panel votes to let the Divine mural stay up

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Divine is finally legal.

Baltimore’s Commission for Historical and Architectural Preservation voted unanimously on Tuesday to follow its staff’s recommendation and give “retroactive approval” to a three-story-high mural of the drag performer and actor that was painted last month on the side of a Mount Vernon row house without prior authorization.
The vote came after the panel listened to more than an hour of testimony, including a message from filmmaker John Waters, who helped make Divine famous in movies such as “Hairspray” and “Pink Flamingos.”

“Aren’t there worse problems in Mount Vernon than a mural?” Waters, who could not attend the meeting, asked in a statement read to the panel by assistant Jennifer Berg. “Please let this wonderful artwork continue to be seen in all its newfound glory and attention. Let the whole world see its good cheer and proud style shining out from Baltimore.”

Before taking a vote, the panel heard testimony about how the privately funded mural at 106 E. Preston St. has become a “beacon of hope” in a neighborhood that has seen young people die of AIDS or been bullied or beaten because they are gay or transgender. Panel members also heard one property owner, Oren Orbach, say he believes homeowners should keep their views and preferences to themselves, not paint murals on the outside of their buildings.

“The Hippo got closed because they lost business because demographics changed,” he said, referring to the gay disco in Mount Vernon that ceased operation in 2015. “People who have personal opinions should be on the walls inside their house and not outside on the walls.”

The Mount Vernon Belvedere Association’s Architectural Review Committee, which earlier this year enthusiastically supported a developer’s plan to construct a building that would violate city guidelines by exceeding the 100-foot height limit for the proposed construction site, did not send a representative to testify, but notified CHAP that it was opposed to the Divine mural, in part because it didn’t meet city guidelines.

The neighborhood association’s board of directors, whose president is married to the developer who wants to exceed the height limit on that building, was neutral about the mural, saying the citywide commission “should be the arbiter for determining the outcome.”

Mayor Catherine Pugh also stayed out of it, saying before the meeting that she is a “big fan” of John Waters and hoped that the commission “will be wise enough to work it out.”

Divine, also known as Harris Glenn Milstead, was born in 1945 and died of an enlarged heart in 1988. The internationally prominent street artist and Baltimore resident Gaia painted the mural of the performer, entitled “I’m So Beautiful,” basing it off of a Greg Gorman photograph that was used as the cover art for Divine’s 1984 disco single of the same name.

After the mural had already been painted, CHAP Executive Director Eric Holcomb told Baltimore Fishbowl that the property owners who commissioned the mural, Jesse Salazar and his husband, Tom Williams, had not applied for permits, which are required for any changes to exteriors of buildings in the city’s historic districts.

Holcomb had asked them to apply for an “authorization to proceed” notice after the mural appeared. They complied, and CHAP put the mural on its agenda to decide whether it should remain, after hearing a recommendation from the CHAP staff and public testimony.

Salazar said after the meeting on Tuesday that he was “thrilled” by the commission’s decision. “The city has preserved this work for future generations to see.”

The Divine mural is the latest example of an urban trend in which street artists have been painting murals on buildings in historic districts without permission, forcing public agencies such as CHAP to decide what action to take afterwards.

Washington D.C., Annapolis, New Orleans and New York City have all seen unauthorized murals appear in historic districts in recent years, raising questions about freedom of speech, censorship, what is art versus graffiti, how to punish people who dare to make art without permission and how to prevent a proliferation of “bad art.”

In Annapolis, Mayor Gavin Buckley was elected after he was sued by the city for painting a mural on his West Street restaurant, Tsunami. After taking office, he replaced the longtime chair of the Annapolis Historic Preservation Commission, Sharon Kennedy, who had earlier confronted him about his mural.

In New York City this year, 21 graffiti artists won $6.7 million in a lawsuit, after a developer destroyed street art they created at the 5Pointz complex in Long Island City. The award marked the first time a federal jury concluded that graffiti, or “aerosol art,” was protected under the Visual Artists Rights Act, and it has been hailed as a decision that could provide legal protection for street artists elsewhere.

In Baltimore, Holcomb repeatedly emphasized that CHAP was not making decisions about the content of the mural, but about whether it met the city’s guidelines for changes to buildings in historic districts.

The 9-to-0 decision (two panel members were absent) came after a lengthy discussion about the possible consequences of legalizing a mural that was painted without permission, and whether that would encourage others to also do so without prior approval.

In the end, the matter came down to a “Catch-22” situation in which the city had conflicting guidelines for murals in historic districts. In a presentation to the commission, city planner Caitlin Audette said the staff recommended that the panel give retroactive permission to the mural in part because of its conflicting guidelines.

Audette said one section of the city’s guidelines states that “masonry that has never been painted should not be painted,” a rule violated by the Preston Street mural. But another section of the guidelines, she said, recommends not removing “sound, well-adhered” paint from surfaces that have been painted.

If the property owners had come to CHAP in advance seeking approval to paint the mural, she said, the staff would not have given permission because the wall was previously unpainted. But now that the mural has been painted, there is concern that removing the mural might damage the structure more than leaving the wall the way it is, she said.

“Basically…we have two guidelines that oppose each other and we want to do the one that is the least damaging to the brick,” she said, explaining why staff recommended retroactive approval.

Salazar, the property owner, apologized to the panel for not seeking permission beforehand. He said he did research to find out what approvals would be necessary and knew he would need CHAP approval if he was going to change the color of the paint on the window trim. But he said he thought commissioning an artist to paint a mural was different and did require permissions.

“In all honesty, we reviewed the city’s guidelines, and we did not believe they covered works of artistic expression,” he said. Asked about it later in the meeting, he put it more succinctly: “It was my understanding that a painting is different than paint,” he said.

Salazar also pointed to other murals painted by Gaia that were commissioned and approved by the city, noting he and his husband paid for “I’m So Beautiful” out of pocket.

Panel member Aaron Bryant, a curator for the Smithsonian Institution, said he was concerned that any paint at all on an unpainted surface significantly changes the property.

“The bricks are historic,” he said. “You know, if you have Dorothy’s red slippers, like at the Smithsonian, and painted Divine’s face all over them, it could be beautiful, but you still screwed up these slippers.”

“I think this is absolutely beautiful, and I would love to see it all over Baltimore,” Bryant said of the mural. “But I think we’re missing the point. It doesn’t matter whether Picasso painted it or I did it. The point is the materiality of this house. The materials are what makes it historic.”

There is also precedent to consider, said Tom Liebel, the commission chair.

“We have a process,” he said. “CHAP has approved murals in historic districts before, and we don’t want to set a bad precedent in saying, Oh well, it’s open season now, and anyone can go in any neighborhood and paint whatever they want and we can’t do anything about it.”

Audette told the panel that, besides the Mount Vernon Belvedere Association, CHAP received 13 letters and email messages of support for the mural and one phone call in opposition. Letters of support came from an associate curator with the Metropolitan Museum of Art in New York City and the chief executive officer of Divine’s estate, among others. An online petition supporting the mural, addressed to CHAP, had received more than 4,200 signatures from the U. S. and abroad.

Aside from Orbach, all of the speakers testified in favor of the mural and gave a variety of reasons, from the quality of the artist’s work to the potential of the mural to draw tourists to the message it sends to the LGBTQ community.

Waters, in his prepared statement, noted that Divine loved Mount Vernon.

“I have made many movies in Baltimore with Divine as the star and Divine stayed in Mount Vernon every time we shot,” Waters wrote. “He loved Tyson Street, the Belvedere, Leon’s and The Hippo and would be so proud to be displayed now so beautifully on a mural on the side of the privately owned home at 106 E. Preston Street in Mount Vernon.”

Salazar and Williams “wanted to give a tribute to an icon in the neighborhood that has been friendly to the LGBTQ community and I support this heartfelt artwork completely,” Waters continued. “Divine is not only a gay hero, but one to many straight people, too–the ones with an especially developed sense of humor.”

Waters added that he was mystified by the fuss over the mural because of its out-of-the-way location.

Salazar said he and Williams commissioned the mural to improve the city.

“At a time when ugliness and division have become so prominent, we wanted to encourage people to see the beauty around them and most importantly–the beauty inside themselves.”

He was contrite about not seeking permission in advance.

“I can say that we have come to learn that proceeding without authorization was a mistake. For that, we are sorry,” he said. “By acting without authorization, we shut out broad public participation in the creation process. Upon reflection, we realize that it diminishes from the unifying motivation of the piece. If we could do it again, we would have acted differently.”

Leaders of the Charles North area have drafted possible guidelines for an “artistic expression zone” that would address the creation of murals on existing buildings there, Audette, the city planner, said. Those guidelines might eventually be applied to historic districts such as Mount Vernon if CHAP agrees.

After listening to the public testimony, panel member Robert Embry said he had a possible solution that might address the various concerns: The panel would deny the application for retroactive approval to paint the mural, on the grounds that it violates CHAP’s guidelines, and require the property owners to apply for permission to remove it, since that also would be a change to a building in the historic district.

Then, Embry said, when the owners would apply to remove the mural, CHAP would deny that application on the grounds that such action also would violate CHAP’s guidelines by potentially harming the brick–effectively allowing the mural to stay up.

When no one else backed Embry’s idea, panel member Larry Gibson moved that the panel follow the staff’s recommendation and retroactively approved the mural. Gibson’s motion passed 9 to 0, with even Embry and Bryant in favor.

As for questions about what happens when the mural starts to fade, Liebel referred to the testimony that the paint will hold up for years.

“I think that might well be a topic for future commissions,” he said.

Ed Gunts

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