BC council denies fine art request
Friday, December 2, 2011 | Devin Monk
Bee Cave City Council members unanimously denied AusPro Enterprises’ request Nov. 22 to approve artboards, or the mural, at the former Trading Post where Planet K wants to open a retail location.
The city stated a mural that artist Kerry Fitzgerald erected over Memorial Day weekend at the site was a sign, according to the city’s ordinance that prohibits murals on walls facing public streets.
Bee Cave’s sign ordinance exempts works of fine art from the sign permit requirements if they do not advertise or identify a product or business. They must also meet community standards and be approved by the City Council.
The city defines fine art as sculptures, fountains or similar objects.
AusPro Enterprises attorney Terry Irion told council members that AusPro’s mural panels do not fall within any of the city’s 15 categories of prohibited signs.
“We believe we clearly fall within the category of a fine art exempt sign,” Irion said.
“It’s not a work of art; it’s a work of defiance,” council member Bob Dorsett countered.
Russ Horton, another AusPro attorney, presented examples of exterior building artwork at Living Desert Cactus and Glass nursery as well as LensCrafters at Hill Country Galleria to make his point that the mural met community standards.
“It is their present. It is not garish and does not dominate the particular structure,” Horton said. “It is fine art and meets community standards. We believe it falls within the ‘similar objects’ [category].”
Horton stated that AusPro only sought an exemption for one 4-foot by 5-foot panel of an eagle with the words “In Pursuit of Happiness” out of several mural panels affixed to the building’s exterior.
Council member Mike Murphy pointed to Planet K’s Website that reads “Planet K: In the Pursuit of Happiness.”
“Don’t tell me that’s an historic phrase and that’s why it’s up there,” Murphy said.
Mayor Caroline Murphy said Living Desert Cactus’ sign predates the city’s sign ordinance, so it is nonconforming and grandfathered. Some of Horton’s other examples are considered to be part of building elevations and site plans approved by the City Council.
“A standard doesn’t have to be something that has to be approved by a formal permitting process, but it’s out there, it’s legal as is [Los] Cucos’ margarita [sign] and the Yellow Store’s pump jack,” Irion countered. “There are artifacts out there that are part of what this community has accepted for years.”
Murphy cited the city’s comprehensive plan and zoning ordinance as some of the signposts the council uses on its way to interpreting residents’ preferences and implementing regulations.
“For a very long time, we have had these guidelines, that I would propose do try to set a community standard,” she said.
Mayor Pro Tem Jack McCool held firm to his belief that the mural promoted the business planned to open there.
“You are not going to convince me that, that sign isn’t an advertisement of the business that is going in there and fine art because it’s the headline on your Website,” McCool said.
Irion said Planet K is a separate company from AusPro.
“AusPro would love to enter into a lease with Planet K and have a Planet K store here,” he said. “We’re not there, yet. After nine months, we don’t have a building permit yet.”
“And all the LLCs have initials, but no people behind them,” McCool stated. “They are all the same people; let’s face it.”
City Administrator Frank Salvato said that all building permit applications for the former Trading Post location have Planet K’s name on them.
Dorsett expressed his fear that a decision could open the floodgate to future businesses wanting to put up signs and artwork.
“Wouldn’t this tell members of the community that you can come in, build what you want, don’t ask for a sign permit and then come in and seek special dispensation?” … ‘Hey, this is fine art. We get to keep it,’” he said.
Mayor Murphy indicated that businesses usually request variances and exemptions before erecting structures in the city limits.
“You get permission rather than forgiveness,” Dorsett added.
Michelle Bliss, Bee Cave Planning and Zoning Commission vice chair, said the public, which does not believe the mural is fine art, elected the council to convey that position.
Bee Cave resident Zelda Auslander, a former council member from 2001-2008, said she hasn’t seen AusPro or Planet K seek approval for its actions through the permitting process.
Workers have blacked out windows while performing unpermitted interior remodeling and parking lot repaving.
“Everything has been done secretively and defiantly. I can tell you that there’s nothing compatible between this business and its appearance or the things that it sells with our intent for this community or the existing things we have here,” Auslander said.
AusPro representatives said they have been honest in their approach.
“Nobody has been trying to deceive anybody here. We have been clear from Day 1 what we are trying to do,” Irion said. “This has been the most extraordinary process of communicating for a building permit application for a remodel permit I’ve ever experienced in 30 years of practicing law.”
Resident Jeff Howell said approval of the sign would constitute acceptance of the company’s presence.
“That would give them a leg up on getting in there,” Howell said. “I recommend you do not approve this. This is not fine art.”