Roberto Julio Bessin's naturalistic sculptures aren't likely to be mistaken for the work of artists like Robert Mapplethorpe, Andres Serrano, or Karen Finley, whose edgier visions have become hot-button centerpieces in the cultural war over public funding of art. A soft-spoken 44-year-old, Bessin becomes most animated while describing the river otters outside his North Kingstown studio, and his oeuvre is the wildlife that captured his fascination as a teenager.

It was this appreciation for nature that led Bessin to create his grandest work, a majestic 40-foot heron inspired by the time, 20 years ago, when he saw an egret, bathed in ethereal light, perched on a small island in San Francisco Bay. This vision remained vivid in the sculptor's mind until he moved in the early '90s to Long Island, New York, and met a boat builder with the skill to help him complete the oversized piece with steel bars covered in white epoxy.

The big bird went on win general acclaim in a variety of settings, even floating on a barge as part of Bessin's "Heron on the Hudson" project during the 500th anniversary of Columbus's voyage in 1992, before being bought by Jim Miller, a resident of Southold, an affluent town on the northeast tip of Long Island. After obtaining what he believed to be the necessary approvals, Miller dedicated the heron as a monument to Peconic Bay and planted it on the shoreline of his beachfront property.

But a small group of Miller's well-heeled neighbors objected to the sculpture's presence, and after an ensuing court fight, a judge ruled that the heron, at least for zoning purposes, was indistinguishable from a radio tower and in need of a building permit, and he ordered it removed. The conflict has become a cause celebre with a pitched legal battle, copious coverage in the local press, and claims of elitism and censorship. And Bessin, who moved to Rhode Island after buying a home in Newport in 1995, is continuing the fight, attracting the attention of lawyer Floyd Abrams, a leading First Amendment authority, and the prospective interest of Sullivan & Cromwell, an old-line Manhattan law firm whose best-known clients include Microsoft and investment and banking giant Goldman Sachs.

Stephen Angel, the lawyer for the heron's opponents, describes the case as a clear-cut matter of local zoning, since the sculpture exceeds an 18-foot height restriction for unoccupied accessory buildings, and he describes the sculpture's return to Paradise Point as a very unlikely prospect. But Bessin's supporters describe the situation -- thought to be the first time a building permit has been deemed necessary for a piece of art -- as a disturbing decision that must be overturned. "If this situation goes down this way, which will set a legal precedent, it will mean that any small group can declare a sculpture a structure or building," says Robert Berks of Southold, who is internationally known for his craggy sculptures of Einstein, Lincoln, John F. Kennedy and other famous figures. "That can reflect down to the whole history of art in America."

The standoff has led Berks, 79, one of the US State Department's 31 ambassadors for the arts, to rescind his offer to create a sculpture for the Town of Southold, unless the heron is returned. For now, the 40-foot bird has been resettled on a dock in Greenport, an artistically inclined village within the town of Southold, which, idiosyncratically, has separate zoning regulations in which the sculpture is not deemed objectionable.

Perhaps the central irony is that the quality that distinguishes the heron -- its formidable size -- is the same thing that aggravated a small group of opponents. An affidavit produced by a real estate agent in the case cites the 40-foot bird as a threat to property values, a danger to small children, and an attraction for undesirables.

Roberto Julio Bessin

But, Bessin says, "Size is absolutely critical to any sort of understanding of my work. Usually, we humans are in total control of our world. As you stand at the feet of the heron sculpture and look upward, you see it is tall, majestic, and a monument, and you can imagine what a little fish might feel. It doesn't work on a smaller scale."

The bottom line, he says, is that a precedent in the case would constitute a chilling effect. "It could have a devastating effect on young artists' future big dreams," Bessin says. "This bird was my big dream."

ANGEL REJECTS ASSERTIONS that the case raises First Amendment questions. "In this particular situation, what we have is a height limitation," he says. "The zoning says you can't have an accessory structure higher than 18 feet. Zoning is aesthetic neutral. It doesn't make any difference what it is. There is no prohibition as far as zoning, as far as the aesthetics of a particular object." Even if Frank Gehry, the distinguished architect of the Guggenheim Museum in Bilbao, Spain, was hired to build a home in Southold, Angel says, he would have to observe local zoning laws.

But Jim Miller, the owner of the sculpture, notes that monuments are exempt from height restrictions under the town code, and the situation strikes him and some other interested parties as particularly ludicrous since the height of other monumental sculptures in Southold has done unquestioned by local authorities. What's really going on, they say, is that the heron was targeted for removal because it offended the old-money sensibility of a handful of affluent homeowners.

This viewpoint was backed by the local paper, the Traveler Watchman, in an editorial published after Miller, under the threat of prison and heavy fines, had the sculpture removed from his property in July: "It was a scene that a Philistine would have cherished. More troubling still is the nature of the pressure that brought about the bird's forced exile. A group of well-heeled neighbors had objected to the sculpture. One even called it a `blight on the community,' presumably on a par with used cars for sale and other `eyesores that disturb the gentry. In Southold, it seems, you can object to anything. And if you have influence, the nuisance is soon banished by fiat."

But this fight seems far from over. Bessin attracted the interest of Sullivan & Cromwell through a cousin who works as a lawyer in Manhattan, and the high-powered firm is taking a preliminary look at getting involved in the case, says an associate, Clayton Marsh. As the founder of a large cleanup firm, Miller Environmental Group, Miller has some pretty deep pockets, and he's "very, very determined," he says, to get the heron back on the beachfront near his home.

Perhaps most significantly, Floyd Abrams, one of the nation's premier First Amendment experts, who Bessin contacted to discuss the case, says he's not aware of another situation in which a community's building codes have been applied to the dimensions or size of a work of art.

"That's what's really at the heart of this," Abrams tells the Phoenix. "Of course, a community can have a limit on the size of buildings and can enforce those limits under the law. When they start having limits not on the size of buildings, but essentially on the shape of works of art, then First Amendment principles come into play. This is a shape issue, because if the heron was portrayed flying horizontally, rather than vertically, presumably it would have been permitted. That's a pretty bizarre way to establish rules of law that impact works of art."

Although he doesn't anticipate becoming formally involved in the case, Abrams is critical of the Town of Southold's handling of the situation, which, based on his understanding of the facts, "is disturbingly focused on the removal of this particular work of art.

"I think that any time you have a community that takes action to destroy or require the moving of a work of art that is protected by the First Amendment, everybody ought to step back and think about it a little bit," he says. "A community is entitled to enforce its zoning laws, but a community has got to be careful not to make content judgments about one piece of art vis-à-vis another, or to otherwise limit free expression. What I find especially troubling here is that this serious and significant creative effort is being treated as if it's no different than a pile of rocks that is too tall. And I think what has occurred has not reflected well on the community or its dedication to its First Amendment freedoms."

Jean Cochran, Southold's town supervisor, referred comment to the building inspector's office, which didn't return calls seeking comment.

BESSIN, HIS WIFE, Suzanne, and their two children moved to Rhode Island after buying a home in Newport in 1995. He has sold sculptures for as much as $80,000, and was commissioned by the Rhode Island Department of Transportation to create four harbor seals for the ferry station at Perrotti Park in Newport. Although publicity about the heron controversy hasn't entirely hurt, attracting a potential six-figure commission from a wealthy resident of Puget Sound, Bessin says, "I wouldn't consider myself successful at all." It's only due to Suzanne's work as a teacher in Newport, he says, that he's able to pursue his living as an artist.

For the six years after he created the heron, the sculpture was somewhat of a metaphorical albatross around Bessin's neck. "People loved it," he says, but a buyer didn't materialize, and the first thing that people invariably asked when they encountered the sculptor was whether he had found someone to purchase the piece. Nonetheless, after four years of being displayed by the harbor in Long Island town of Huntington, real estate advertisements for nearby properties would include a reference to how they offered a view of the heron.

Bessin, a native of Caracas, Venezuela, moved to Long Island after studying zoology at the University of California at Berkeley, and then sculpture, to be near grandparents who lived in the area. His appreciation for wildlife was sparked by a trip he took to a reserve in Venezuela as a teenager, and Bessin's interest in drawing and sculpture dramatically accelerated when we was laid up for a few weeks after an accident during college.

After being originally displayed in Huntington, the heron was moved for the Columbus anniversary celebration, and the owners of a restaurant/hotel/marina complex in Port Jefferson, Long Island, signed a lease-to-purchase agreement for the sculpture in 1992. Bessin and his family, meanwhile, moved to northern Japan, where he created a series of 13 oversized falcons, owls, eagles and other monuments -- although none as large as the towering heron -- during his tenure as an artist-in-residence.

By the time when Bessin returned to the US in 1995, the heron's condition was deteriorating, and the restaurant/hotel complex was going bankrupt. The sculptor was introduced through a friend to Jim Miller, who entered into a contract to buy and refurbish the sculpture. The project extended into 1997, as Miller won approval from the town trustees, and various state and federal departments, to perch the heron on the shoreline of his beachfront home.

Acting on a recommendation from the local building inspector, the Southold Zoning Board of Appeals then declared that the sculpture was an uninhabited accessory building, in excess of the local height limit, and that it couldn't be erected without a building permit and a variance. Undaunted, Miller maintained that he had the necessary permits and proceeded to erect the sculpture, in defiance of a stop-work order, on a wooden platform near his property. But Justice Howard Berler of the New York Supreme Court upheld the town's interpretation in 1998, and again in May, after an appeal.

As far as suggestions of selective enforcement, Angel says, "No one's going out there and prosecuted the Millers. What has happened, after a long three-year process, [is that] the court determined it violates the zoning code." Bessin, though, maintains the ZBA finding was flawed, since the zoning laws explicitly cite only a few specific structures, such as radio towers, as those covered by the height restriction.

The heron was removed from Paradise Point in July, its eyes covered in black bunting, as Berks, the sculptor, led a group of supporters in an ironic rendition of "America the Beautiful." Berks is effusive in his praise of the work. "It seems to be ready to move," he says, citing the way that light moves through the welded rods covered with white epoxy. "It carries such a grace. No ballerina is as beautiful as a heron." The fight over the heron sculpture, he adds, "is what democracy is all about. This is what this country is all about, that the individual is fundamentally more important."

Miller recently applied to the town to have the sculpture returned to his property, although he anticipates a rejection, and more litigation is a strong possibility. "I think it's a tragedy, really, if this [decision] is allowed to stand," Miller says. Although it might seem like an isolated case, "It will absolutely be a blight on the Southold town, this first step along the path to the censorship of art. I think that's how it begins -- one step at a time."

Bessin, meanwhile, can typically be found working in the serene setting of his North Kingstown studio, part of the former Rodman mills, which is filled with his sculptures, paintings, and prints. Although he's also determined to see the heron returned to Miller's property, Bessin can't help being struck by the irony of the battle over his grandest creation. In a time of controversial and highly politicized art, the heron seemed relatively mellow, if a tad big. "I'm not looking for a fight with any of this," the sculptor says. "That's what's so disheartening about the whole controversy. My intent was diametrically the opposite of what happened."

Ian Donnis can be reached at idonnis[a]phx.com.

Issue Date: August 31 - September 6, 2001