Floodwall Murals: Going with the Flow

In a memo to the City Council, dated July 22, City Solicitor Jones wrote, “At the last council meeting on July 13, 2009, some issues were raised in regards to the proposed lease agreement between the City of Portsmouth and Portsmouth Murals, Inc. As a result of those concerns, I have made a change to paragraph 2 of the lease. Specifically, I have clarified this paragraph by stating that the lessor desires to lease the ‘surface' (i.e., panels) of this property . . .” This is clarification? Surface? Panels? Does he mean murals? If so, why doesn't he say so? Is it because that would mean Portsmouth Murals, Inc. would be leasing only those sections of the wall that now have murals on them, whereas PMI wants a lease on every foot of wall?

Even with the revised language of the Floodwall ordinance presented by Solicitor Jones, which specifies the surface of the floodwall as what is being leased, there is still a potentially serious legal problem, which is how the property in question is defined, or delimited, in the lease. It is defined as the "Property commonly known as the Floodwall in the City of Portsmouth." Exactly what is the “Property commonly known as the Floodwall”? I think that what is, or at least was, commonly known as the Floodwall in Portsmouth is the 2200 hundred feet or so (actually closer to 2375, according to the Google satellite map, below) of the northern side of the flood wall that runs along Front St., from Washington St. to Madison St. That figure, 2200 hundred feet, was the figure used by the Portsmouth Murals Inc. (PMI) and others from the time the project began back in 1992. Eventually, those 2200 (2375) feet were marvellously used up, at which point more murals, the Baseball Murals, were painted on the ancillary flood wall on the western side of Madison St. between Front St. and Second St. Then the Organized Labor murals were painted on the ancillary flood wall next to Pat’s Café, on Second St. and the Bicycle murals were painted on the ancillary flood wall in the alley next to the Brewery, the alley that runs from Second St. to Front St. In addition to all this floodwall, there is the river side of the Floodwall along Front St., which now has the Wall of Fame, with the Stars painted on it.

By the vague terms of the lease that will be voted on at the Monday, July 27, council meeting, Portsmouth Murals Inc. apparently will be leasing the surface of the Wall of Fame, which is another 2200+ feet of Floodwall surface. If we are talking about both sides, or surfaces, of the Floodwall, including its main and ancillary sections, Portsmouth Murals, Inc. will be leasing, if the ordinance passes, about 6000 feet of Floodwall surfaces.

In addition to questioning the vagueness of what is meant by “Property commonly known as the Floodwall” in the revised ordinance, I also question the use of the word “surface.” Merriam-Webster, defines the word surface as“the exterior or upper boundary of an object or body.” Murals do not constitute the surface of the Floodwall anymore than tattoos are the surface of the skin. Both murals and tattoos are applied to, or on, but they do not thereby acquire the status of a surface. Could any real estate transaction with such imprecise use of language as “Property commonly known as the Floodwall” and “surface” or “panels” stand up in court? I suggested in my previous blog "Porksmouth Revisited" that the murals should perhaps be considered intellectual property, since they don't appear to be either real or private property. Are we dealing with more incompetence on the part of the City Solicitor or is this more chicanery? Is this ordinance on the up and up or just some kind of SOGP hootchy-kootchy dance?

The most serious problem with the lease may be political rather than legal. The justification for the city leasing the floodwall surface to the PMI is so that PMI will qualify for a $250,000 state grant from the Ohio Cultural and Facilities Commission. Based on what I have learned, the $250,000 may be unadulterated pork. In time-honored Portsmouth tradition, the PMI may just be going with the flow. I won't get into that now, but if the Floodwall ordinance passes next Monday, as he begins his campaign for the seat in Congress currently held by the fiscally conservative Republican Jean Schmidt, Democrat Todd Book, in addition to a rock, may have a pork rind wrapped around his neck.

click on: View Larger Map

.