Guest Commentary: Artistic expression and the fleecing of the First Amendment

Guest Commentary:

I am saddened by the actions of our City government, which has made inexcusable bureaucratic and judicial errors, and the actions of a tiny number of San Diego citizens who allowed their personal taste to take away the artistic freedom of others.

Herein I hope to make four points: 1) the investigation of San Diego Municipal Code violations is at best random, 2) the City demonstrates bias when it enforces some violations and not others, 3) City inspectors demonstrate that they do not know municipal codes well, make inaccurate investigations and inexcusable errors and 4) anyone’s artistic endeavors are open to attack and destruction.

I recently visited Oslo, Norway, where a much larger sculpture than that of Nasser Pirasteh’s in La Jolla stands near the National Viking Museum. There are many similarities between the two sculptures. Both are hollow, colorful, have a door and are inspired by the sea. While Norwegians treasure this sculpture, the City of San Diego allowed an Administrative Hearing Officer decide what is art and what is not. In the Final Evaluation he writes; “Pirasteh’s sculpture does not look like a traditional sculpture.” I did not know he is also an art critic.

The process for investigating the violation of a City Municipal Code is based on individual complaints rather than a systematic process that treats all people and institutions equally. It is a disgrace. For example, the Evans School on La Jolla Scenic South has a gazebo (a structure) that sits eight-feet from the property line, clearly in violation of SDMC 131.0431 which specifies a 20-foot setback. La Jolla Museum of Modern Art has a huge stone egg sculpture (also hollow) that stands two feet from the property line, also in violation. But because no one has complained, these violations go unchecked and are allowed to exist, as well they should be.

Mr. Pirasteh was not so lucky. A neighbor who did not like his sculpture lodged a complaint with the City. At the first hearing June 17, it was obvious that the two city inspectors who testified did not know the Municipal Code. They based their conclusions on SDMC 131.0431 which specifies a 20-foot setback on level property lines. The In-Out sculpture sits high on a greater than 25 percent sloped property. A city permit officer confirmed therefore that Pirasteh did not need a permit according to the footnote SDMC 131.0431(b) which specifies a six-foot setback on slopes greater than 25 percent. City investigators measured the Pirasteh setback at nine feet.

Presumably because of this inexcusable error, the Administrative Hearing Officer ordered another investigation and a second hearing on July 21. Would the City recognize its error or cover it up?

The City deemed the footnote to SDMC 131.0431(b) “irrelevant” giving no reason and chose not to investigate the possibility of its application. Still, the City needed another code violation to save jobs and face.

The City hung its hat on a violation involving electricity. Indeed, there was lighting installed into the wall surrounding the Pirasteh property in 2004, 10 years before the In-Out sculpture was ever conceived. Many La Jolla residents light their walls, gardens, gazebos, stairways, trees and yes, sculptures. No permit necessary. No violation.

When Pirasteh built the In-Out sculpture in 2015 he used one of the wall fixtures to cast light on his sculpture, wired through the wall and never the sculpture. Again, the City applied the law differently to Pirasteh. Months earlier, the entire electricity issue had been resolved in April 2016 during the first city investigation. The same city inspector asked Pirasteh to take the light off the sculpture, presumably to appease the neighbor. He did so immediately and the city was satisfied.

Why then resurrect an electricity violation? I believe for two reasons, 1) because the city needs another code violation after realizing that SDMC 131.0431(b) does indeed clear Pirasteh, and 2) because when the Pacific Foundation saw an article in The Los Angeles Times May 15 they contacted Pirasteh. This Foundation takes on cases upholding the First Amendment. This got the City nervous and it decided to stick to its decision come hell or high water. So the electricity code violation was resurrected as means of fending off the Pacific Foundation.

Ironically, throughout the Final Statement, the City Administrative Hearing Officer refers to the sculpture as a sculpture!

Following six months of investigations and two hearings, the City has hung its hat on faulty investigations and judicial errors. While one neighbor’s personal taste in art has revealed that our personal self-expression (and by extension our First Amendment Rights) are up for attack by anyone at any time. Will this ever end fairly?