Anchorage Daily News

KETCHIKAN -- The Ketchikan Gateway Borough Assembly has agreed with a Planning Commission decision that a wooden sculpture atop a business must come down.

The Assembly voted unanimously Monday that the Planning Commission was correct in refusing to overturn an administrative decision by Borough Planning Director Tom Williams. Williams decided not to issue an after-the-fact zoning permit for the "Fiddler on the Roof" sculpture.

The statue of the bearded fiddler with one leg raised is on a store operated by Joseph and Helena Machini.

Code enforcers had ordered the business to take down the statue after finding it extended the height of the building beyond a 32-foot limit.

The Machinis appealed the Planning Commission's decision to the Assembly. They were represented by Anchorage attorney Brian J. Stibitz. The lawyer, speaking by telephone, argued that artwork was not defined as a building or alteration to a building, so the 32-foot height limitation did not apply, and a permit wasn't necessary.

The measurement, he said, applies to the highest part of the roof, "not artwork on the roof."

But Williams said the statue represented an alteration to the building, so a height limit did apply and a permit was necessary.

Stibitz also said there are other displays of artwork on Creek Street without permits. He said requiring the Machinis to obtain a permit violated their freedom-of-expression rights under the U.S. and Alaska constitutions.

Williams said the planning department had looked at other art pieces and sent letters to property owners asking them to remove the artwork. He said it was a slow process to get the owners to comply, but some have been removed.

Williams said the Creek Street Historic District had a duty to evaluate "the appropriateness of the fiddler," and it was not a violation of the Machinis' constitutional rights.

The Machinis would have 30 days after the decision is finalized to appeal to the Superior Court.

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