PORTSMOUTH — The same month two murals were painted on the exterior of two downtown restaurants, restaurateur Joe Faro was informed by the city he can't have murals he planned for one side of his downtown Tuscan Market because they'd be considered signs.
Faro's plans call for painted reproductions of two posters his grandparents brought from Italy in the 1920s, onto the Daniel Street side of the Tuscan Market, which is scheduled to open Monday, July 1. His lawyer, Bernie Pelech, noted the proposed murals for the 14 Market Square restaurant were already approved by the Historic District Commission.
The only concern of the HDC, Pelech said, was if anything depicted in the posters was going to be sold in the restaurant, it would be considered an advertisement. Because one of the proposed murals depicted an old ad for S Pellegrino water, an Italian spelling for the sparkling water Faro may sell, he proposed two other posters, Pelech said. One has Italian text for Parmesan cheese and three men sniffing a wedge of cheese, the other shows a man with an oversized forkful of spaghetti and Italian text.
By email dated June 18, Faro was notified by land use compliance agent Vincent Hayes the proposed murals were "brought to my attention," and "qualify as signs as defined by the zoning ordinance," therefore require a sign permit. In response, Pelech filed an administrative appeal with the city, as well as a variance request in the event the appeal fails.
Earlier this week, Marisa Kang completed a mural of a Korean tiger on the side of Mr. Kim’s restaurant, in a style she calls mosaic pointillism. That followed completion of a mural on two walls of the Shalimar India restaurant, painted by Kenley Darling and Scott Chasse, who were commissioned by owner Harbhajan Singh.
Images of those murals are attached to Faro's appeal to the city, as is a photo of a mural on The Wilder restaurant, also painted by Darling and Chasse. Pelech added photos of a landscape mural on the wall of a Middle Street market, a carved bowsprit recently installed on a Martingale Wharf wall and several murals painted on building walls as part of a 2011 art event named Street A.K.A. Museum.
Pelech argues in his appeal that the reproductions of the antique posters are not signs and, "would not be a design or device used to identify or advertise any place, business product activity service, person idea or statement."
"The intent of the applicant is to decorate and beautify a presently void, unattractive blank wall area," Pelech wrote, while noting, "wall art has and continues to be a common practice on many of Portsmouth's older commercial buildings." He noted the HDC approval included a request that Faro submit information about the type of materials that will be used "to insure the upkeep and longevity of the wall art."
"This differentiates the applicant's proposed wall art from most recent downtown installations, which have undergone little or no scrutiny or permitting," Pelech wrote to the city.
Should the appeal fail, Pelech also filed an application for two variances to exceed the maximum allowable aggregate signage on the Tuscan Market building for the two murals.
Pelech and City Attorney Robert Sullivan both cite the applicable city ordinance as defining a sign as follows: "Any symbol, design or device used to identify or advertise any place, business, product, activity, service, person, idea or statement. Any representation that is illuminated and consisting wholly or in part, of text, images or graphics shall be considered a sign. Signs need not include text, and may consist of stripes, spots, or other recognizable designs, shapes or colors. Displays comprising of merchandise, figurines, mannequins, decorations and other similar articles, arranged inside a building and visible outside of a window, shall not be considered a sign."
Sullivan said he has not been asked for a legal opinion about the proposed Tuscan Kitchen mural, or other recent murals on city buildings. In general, he said, "If you're calling attention to a business, it's a sign."
"If it's not intended to identify or attract attention to the business," he said, "it's not a sign."
Even if it's a beautiful sign, Sullivan added, it's not allowed and the property owner must go through the sign-approval process.
Hayes' email about Faro's proposed murals reports the Planning Department determined he has 96.24 square feet of aggregate sign area available under the sign ordinance. Faro's rendering shows one mural measuring about 68 square feet and the other 124 square feet.
Mr. Kim's co-owner and local restaurateur Jay McSharry said it's his understanding that, "If it's art, it's not a sign" and you don't need a permit. He said that's why he didn't apply for a permit for the mural on Mr. Kim's.
"I'm under the understanding that if it's your building, it's yours to paint as you see fit, he said, adding that if the name of an establishment is included, for example, it's a sign.
McSharry said he's excited to see Faro's market open in Market Square and called him "a great operator."
"I do see it as art," McSharry said. "I'm excited to see it."