Not much news on the proposed Eakins sale since last week. Philadelphia institutions have until Dec. 26 to match the $68 million offer. Philadelphia Inquirer art critic Edward Sozanski had his say in yesterday's paper (the headline: "What Were They Thinking?").
Though I claim no expertise in Pennsylvania law, I did want to offer some preliminary thoughts on the steps taken by the city last week to have the painting designated as a historic object. It's not clear to me whether or not there's still time to block the sale under this process. The basic procedural structure is the following. When the Historical Commission considers designating an object, the Philadelphia Code requires it to give at least thirty days notice to the owner of the property proposed for designation. Then, at a mandated public meeting, "any interested party may present testimony or documentary evidence regarding the proposed designation." If the Commission decides to designate an object, it "shall send written notice of the designation ... to the owners." An owner may not "alter or demolish an historic ... object" "unless a permit is first obtained from the Department of [Licenses and Inspections]."
That much seems clear. What isn't clear is when the restrictions on moving the object kick in. As I read the statute, it's not until after designation -- in which case it would be too late. Unless it went out today, the 30-day notice period alone is enough to take us past the Dec. 26 deadline. On Dec. 27, the university could pack up the work and ship it off to Washington (whether it would have the political will to do so, in the face of such intense opposition, is another matter). [Update: I see now this is probably incorrect. Since the statute defines "demoliton" to include a moving of the work, it could not be shipped out while the designation proceedings are ongoing. See note below.] On the other hand, the Commonwealth Court's Dream Garden decision (discussed further below) suggests that the 30-day notice itself "invokes the Commission's jurisdiction over the properties being considered for designation and states that owners subject to the Commission's jurisdiction may not remove, demolish or alter the property without applying for a permit" (see footnote 3). That's Stephan Salisbury's take in the Inquirer as well: "[The Commission] must provide the owner of the property 30 days' notice before any hearing on the matter takes place. (Once that notice went out, the painting could not be moved while the matter was under consideration.)" (emphasis added). This reading seems to rest on Section 14-2007(7)(l) of the Code -- but that section merely says "The Department shall not issue any permit for the demolition, alteration or construction of any ... object which is being considered by the Commission for designation as historic where the permit application is filed on or after the date that notices of proposed designation have been mailed." But what permit is required to ship this painting to the buyer in the first place? [Update: It's been pointed out to me, correctly I think, that it's Section 14-2007(7)(a) that would require a permit here -- for "demolish[ing]" (i.e., moving) the painting.] If this reading is correct, however, then, at least in theory, the Commission could rush out a notice before the Dec. 26 deadline, putting the sale on hold until the designation process gets sorted out.
Finally, a word about the Dream Garden case. As Stephan Salisbury reported last week, "use of the preservation ordinance to protect artworks is unusual, but there are significant precedents. In the case of Dream Garden, a collaboration of Maxfield Parrish and Louis C. Tiffany whose sale ignited considerable public controversy, the Historical Commission acted after receiving a nomination request from then-Mayor Ed Rendell. Owners of the mural fought the designation, and a three-year legal battle ensued. That fight finally ended, without any court decision, when the Pew Charitable Trusts acquired the mosaic for $3.5 million and gave it over to the care of the Pennsylvania Academy of the Fine Arts." For more background on Dream Garden, see here.
It's true there was no court decision on the merits -- but, as I mentioned above, there was a decision by the Commonwealth Court, on the narrow question whether the Historical Commission's "designation of the Dream Garden as an historic object is a final adjudication and thus appealable under Local Agency Law" (it held that it was). In the course of that narrow decision, the court made it very clear that the designation raised serious "regulatory taking" issues. In discussing the harm to the owner, it said:
"First, the proposed sale of the Dream Garden for nine million dollars collapsed due to the threat of historic designation. Currently, the [owner] is prevented from moving or altering the work of art from its present location forestalling any chance of any future sale. Unlike the designation of a building or a structure, which can be adapted for other uses, the historical designation of Dream Garden precludes any right of private ownership of the work or art. The [owner] has no viable economic use of its property, following designation. .... We conclude that this hardship to the [owner] establishes this challenge ... is ripe for judicial review."