Città d'arte e centri storici
Art Cities: between Autonomy and Special Regimes [*]
Sommario: 1. The context. - 2. The questions. - 3. The answers. - 3.1. A preliminary question of method. - 3.2. Differentiation for adjusting to local systems: but how?. - 3.3. A closer examination of "administration". - 3.4. The virtues and premise of cooperation. - 3.5. At the center. - 4. Final considerations.
Art Cities: between Autonomy and Special Regimes
The specialty of the Art Cities for the unique concentration and quality of historical and artistic heritage within an urban context leads us to reflect on the opportunity to imagine for them a special legal regime. The answer to this question goes through the same definition of the Art City and the correct identification of its problems.
Keywords: Art City; Cultural Heritage; Special Legal Regime; Interinstitutional Cooperation.
How exactly are art cities "special"? Do their specific characteristics require a special legal regime and if so which one? For what purpose? These are the questions we will address.
Conceptually, an art city contains a unique concentration and quality of historical and artistic heritage within an urban context, the symbolic nature and identity of which have become so powerful and universally recognized that it generates not only scientific and cultural interest but also other kinds, in particular economic (major tourist flow) and sometimes political (as the country's capital). Art cities dialogue directly with supranational networks due to their globally-recognized role and in general overall have access to substantially more opportunities (media attention and markets) and run greater risks than any other city: in particular, the deterioration of cultural heritage due to massive tourism and the alteration of the city's urban fabric socially and economically due to the dominance of tourist market dynamics on a global scale.
These problems in and of themselves are not different from other cities; rather, the elements art cities share with other cities are subject to such high levels of stress that they require particular solutions. This perspective will help us to approach the problem more correctly: that is, with the belief that the starting point is ordinary action and that special actions are conceived of only for the part of the problem without a solution within the ordinary system, even if calibrated to the particular needs of the case. Naturally, this is a circumscribed area of ordinary and therefore requires:
- coordination and rationalization of what is offered, on a strictly cultural level (events, exhibitions, museum hours, tickets) as well as in terms of the city's urbis (mobility support, combating ecological and environmental deterioration) and civitas (a sustainable coexistence of the needs of tourism and those of residents and ordinary productive and commercial activities; unequal distribution of the effects of tourism: costs for everyone, advantages for limited areas and entities);
- cultural heritage protection and development (meaning a complex of cultural assets and landscape): generally speaking, protection and development of the environment, landscape and the city, whether in specific artistic/cultural emergencies or as a whole: this is where the specific issues connected with hydrogeological dynamics and its problems dealt with at this conference crop up;
- governing the whole as well as individual sectors with a special regard for three main issues: the terrain (often decisive) of the "city before the city", in other words the relationship between city and region, central government, supranational levels and global networks; the mutual interdependence of public policies bordering on cultural heritage, especially policies regarding the protection and development of cultural assets; finally, the need for long-term plans and programs, a fundamental prerequisite for cooperation between institutions and public agencies or the latter and the private sector as well as for finding resources, namely the identification and development of the other resources that often are unseen or never even looked for...
Italian law does not provide a definition of art city nor a set of rules for it (except in random fragments, mostly in the form of regional laws) . The issue, however, is not totally ignored by the law. In some cases it is dealt with directly, even if partially, as for example the protection of historic city centers in Italian law 765/1967 (which is strongly defensive: economic and commercial activities are not included although essential to the life of city centers)  and Italian law 77/2006 on UNESCO sites, which instead also extends to their management. In some instances, the connection is indirect and springs from sector laws regarding cultural heritage (commercial activities, shop hours) or taxation (tourist tax, Italian legislative decree 23/2011), whereas in others this characteristic was the prerequisite for complex but direct actions for a specific reality, as was the case for individual cities often after a disaster: Todi, Orvieto, Assisi, Urbino, Venice, Rome, Lecce, Aquila).
At this point we can more accurately formulate the questions to be answered: how similar (at least partially) are the most acute problems of art cities to the problems of other cities? And if they are not, do they at least share a common ground? How much legal regulation and action (meaning administrative action, organization and resources) do they require? If regulation is needed, how much legislation and how much in other forms (from public regulations to consensual means such as agreements, pacts or covenants regulating relationships and actions)? Last, if legislative regulation is required, how much should be general law and how much special regimes and laws? Without forgetting that the answer is not provided by a single authority, which brings up another question: how and based on what premises to create that genuine cooperation between the main players involved (local governments, cultural heritage ministry, technical bodies regarding territorial and environmental matters) constantly referred to by the Constitutional Court for maintaining a multi-institution system and preventing conflict?
3.1. A preliminary question of method
Let us not forget the objective: the government of an art city, as detailed by the specifications made above and bolstered by the forms of support to be further explained, must be responsible for the system with its antennas up for intercepting global networks while also dialoguing with political, technical, institutional and national entities; able to cooperate with national public agencies and other organizations present while its seat, legitimacy and scale are grounded in representative city institutions to ensure the operation of sectors based on their interdependence. In other words, the first, but not the only, point of reference. All of this would not be possible without integrated development plans strategically aligning individual projects, potential public and private players, and resources over a medium-long term period. There is, however, a significant consequence: in order to do so calls for different responses tailored to each situation, which, in turn, requires a flexible institutional framework that can make a specific arrangement of resources and diverse sector policies related to each context. Unfortunately, Italian cities are currently light years away from this arrangement due to the concomitant centralization and fragmentation of financial resources (funding cuts and co-funding) and regulatory ones, the combination of which has increased the amount of ordinary administration dependent on the center.
3.2. Differentiation for adjusting to local systems: but how?
Two conceptually and concretely opposite solutions:
A) Special legislative regime, meaning the provisions laid down derogating from the ordinary regime. It is undoubtedly one way to differentiate, but the costs are greater than the benefits.
However, based on the findings and speaking on a general level, aside from the obvious need for using special laws for emergencies (but then traditional measures such as emergency ordinances would suffice, except budget laws for allocating funds) or as a first means of defense against new problems, two criticisms can be made of this solution.
In terms of substance:
- there is a clear gap in terms of giving back art cities the actual government of their own development: special legislation creates fragmentation (by sector) and verticalization (towards the national center) which influences the decision-making process making it even more difficult for the local system to govern the whole;
- simplification and streamlining are either risky because they lower control and guarantees with the risk of malfunctions of note or are legitimate because they eliminate obsolete bureaucratic layers. With, however, a paradoxical result: if they are also useful in all other cases, the exception made for the individual case ends up being functional to the general (and contradictory) maintenance of things that have been surpassed, although supported by militant interest groups. In other words, a fair innovative solution is granted to one case but denied to all others;
- it crystallizes in time a measure that was appropriate when it was adopted (the Gubbio Charter, the root of historical city center protection, dates back to 1960) but destined to lose its relevance if not updated and translated in different forms: the 1966 law, as has already been observed, protects the conservation of cultural heritage but ignores a crucial element, the activities that make an urban center alive and vital ;
In terms of form:
Special regimes are also questionable on a more technical-formal level due to two of their consequences, which should not be underestimated:
- legal rigidity in terms of space (interpretation of the derogation must be "narrow", that is, broad or analogous interpretations are not allowed with the result that all that is not expressly provided is beyond its reach and re-engages the ordinary regime) and in terms of time (subsequent general law does not apply to previous special law with the serious risk that the latter will eventually fall into disfavor);
- practical difficulty for executive branches (if ordinary, having to apply unusual special rules; if special, intertwined with the latter and isolated from the rest), control and jurisdiction. They fluctuate wildly between being an impromptu solution and the temptation, which only becomes stronger over time, to accept the part (special) as the whole (ordinary) creating serious problems in terms of clarity, stability and transparency.
B) Differentiate administratively. Must we conclude then that there simply is no room for solutions tailored to individual realities and contexts, by definition diverse, and that there is no alternative to strict uniformity? That is not exactly true: differentiation must be found on administrative terrain, containing and leading the law back to general principles and procedures and reserving the rest for administration, that is, for adjusting the rule to the specific case, what is at the same time the basis of autonomy, self-government and the responsibility of technical and administrative bodies.
In this case as in many others, the unending pliancy of administration to the invasiveness of the law is to be considered one of the major problems of contemporary institutional systems. In some cases, the issue has even been addressed with the constitutionalization of the "reserve of administration", meaning lawmakers can "provide for" the rule but not "provide" its actual operation in a specific case thereby prohibiting their interference in the administrative sphere.
If this is true, then clearly the most credible and sound art city resilience to natural and hydrogeological disasters is also a result of this principle of reserve, that is, an actual "administrative resilience" whereby the local systems' ability to respond positively to a crisis rests on a complex set of measures related to the specific local context. The construction, execution and government of such measures require technical autonomy, administrative discretion and power to govern. Under these conditions, in fact, the need for operating diversely is fully compatible with the ordinary legislative regime since everything beyond it is dealt with through the evaluations and choices based on autonomy and self-government. It is the exact same conclusion reached by the most recent, lucid thought on the protection of historical city centers, which emphasizes the importance of guaranteeing their vitality "on pain of losing our historical city centers. The point is that this factor must be combined with urban policies intelligently and based on the specificity of each individual city with more attention paid to the social dimension. Other policies are needed, not other laws .
3.3. A closer examination of "administration"
In general. The development of art cities depends more than any other city on the proper everyday functioning of the entire institutional system especially regarding exclusively ordinary rules and the bodies that must apply them. This implies several variables:
- avoiding legislative automatism by giving administrations back discretionary power and the resultant responsibility, in general and with a specific regard to statutes of technical bodies so as to ensure transparent dialogue of the separate functions (and responsibilities) during the preliminary stages leading up to a final decision;
- giving cities with special "statutes" approved by the center, containing broader content than current ones and with the gradualism needed within the general principles provided by law, stable conditions of autonomy in terms of functions, governance, resource use and acquisition, direct relationships with national agencies for network development (road, rail, energy and communication networks), service management and organization. Hence statutes that can be adapted in relation to an individual situation . Indeed, these institutional characteristics, even if only partially, can be found in metropolitan cities, an urban organization operational in Italy formally as of 1 January 2015 and extended to the most important art cities, such as Venice, Florence, Rome and Naples.
True autonomy requires a true center capable of: defining the general framework of rules and policies covering different elements; acquiring information and ensuring its circulation; determining the amount of resources for national taxation with a minimum degree of predictability and timeliness; establishing the conditions for a balanced relationship with supranational entities and between local systems and the state's local administration. This is not exactly what happens today.
In particular. Local actions in relation to the development of art cities are a widely varying group of actions that can be divided in two levels:
- The first regards the connection between cultural heritage and the landscape, environment and territory, which implicates a variety of avenues to explore; emphasizes the interdependence of these elements, which, moreover, are crucial for governing a hydrogeological structure; and requires that their protection also actively include their use and development. This is yet more confirmation of the need for an integrated policy of cultural and environmental heritage protection  in addition to adjusting the Cultural Heritage Code on landscape matters to include these broader needs in a structure that is still too focused on just protection . This is where policy and region should meet, as they should also meet on the adoption of a new urban planning law - which can no longer be postponed. That is why the weakened regional system of the Italian Ministry of Cultural Heritage and Activities (Prime Ministerial Decree of 29 August 2014, n. 171 in Gazzetta Ufficiale of 25 November 2014) is so puzzling. Except for the development programs for regional museum networks, it exacerbates the state void of crucial wide-ranging policies made even more delicate by the weakness of the regions;
- The second regards two dimensions: an external one of the relationships with the local offices of the Ministry, with autonomy for planned actions of systemic interest in local systems: in particular, regarding historical city centers, restoration, scheduled maintenance and development; and an internal one of measures that today are indispensable for governing art cities: from specific measures like coordinating communications, events, ticketing, assistance and guides, vigilance and public order measures for conserving artistic assets, sites and decorum, to general ones concerning the influx of tourists (in some cases, inevitably blocking or limiting access to a certain number of people), ordinary activities and businesses (including hours), the correct use of the tourist tax, and communications (external and internal).
3.4. The virtues and premise of cooperation
Little or nothing of what has been said thus far can be achieved without vast cooperation between public systems and between public and private spheres. In fact, today any proposal on the matter invokes the virtues of collaboration. As everyone knows, however, cooperation is the result of many variables and is anything but guaranteed. These are some of the fundamental variables for our case:
- strategies, plans and programs that relate not only to innovation and projects but also ordinary administration (see maintenance). Doing so, moreover, is useful for considering culture not only in itself and for its intrinsic value but also as a driving force for the development of the territories and as a connecting element binding together many sector policies. This means moving beyond the logic of individual projects to a farsighted strategic perspective, where the process itself also constitutes a significant part of added value and the product and its ability to generate resources, as the dynamics of the European Capital of Culture procedure so exemplarily demonstrates;
- clear limits on the functions and responsibilities of organizations and directors;
- incentives for innovating, finding resources (and disincentives for the contrary), small-large virtues (for example, preferential treatment for strategic interests, infrastructure, partners with specific interests), areas and mandatory occasions of joint training/updating between state and local government;
- concurrent areas of responsibility (that can be engaged by more than one entity) and substitute courses of action in the event of inertia. In addition to large issues (compatibility with the constitutional system of areas of responsibility) also smaller virtues must be cultivated including making available an amount of resources, even if limited, for the entity that must act in substitution. Otherwise, for example in the case of the demolition of illegal buildings issued by the Superintendency in an area with landscape restrictions and an inert municipal administration, no action is made because the cost was not budgeted and the resources necessary are lacking, even if to be reimbursed by the defaulting administration;
- prompt inspection and fines: a determining factor as counterweight to autonomy and point of reference for reliable performance and evaluation of responsibilities;
3.5. At the center
All the above requires a general institutional framework that is more solid and better equipped.
Although everyone knows that to be very operable locally depends on national policies regarding cities - today the self-evident protagonists of territorial systems and their socio-economic development - in Italy today there is a glaring absence of actual institutional points of reference, save the limited but valuable experiences of Conte, Minister for Urban Areas during the '89-'93 period and Barca, Minister for Territorial Cohesion, urban agenda, the interministerial committee on urban policy, during the first months of 2013.
The Ministry of Cultural Heritage and Activities also obviously plays a significant role in ensuring the responsible government of art cities, both in terms of sector policies and in its central and local organization. Although innovative action on both fronts have recently made important changes to the pace of things (Italian decree law 83/2014 and law 106/2014 on activities, the so-called art bonus; the regulation adopted with Prime Ministerial Decree 171/2014 on organization), the journey is still a long one especially regarding the latter, considering the current conditions and the persistent centralization and sectoralization of the ministry . As an example, consider the importance of deliberate guidelines and positions for action regarding cooperation, the only effective antidotes to the discontinuity created in local offices by directors being replaced.
From this point of view, however, the creation of the regional guarantee commission, according to art. 12 decree law 83/2014 and law 106/2014, should be evaluated positively. It has the power to reform acts adopted by individual superintendencies. In fact, it is this principle of good performance, rather than para-litigation, that prevails and is the reasoning behind it, as demonstrated clearly by certain attributes such as the limited term for evaluation (10 days), the request can only be made by other public administrations (with the exclusion of private entities) and only Ministry personnel may sit on the commission.
It is clear that a step forward must be made regarding cooperation. It is also clear that for the maintenance and government of interdependency, resorting to special laws for miraculous solutions is neither necessary nor conclusive. However, tending to the horizontality and the areas of connections between sector policies within an individual institutional entity and between government levels is crucial. It also happens to be the best grounds for constructive relations between public and private entities.
More so than others, art cities clearly demonstrate the need for collaboration among many administrations, especially between the Ministry and the City, but here also the journey is a long one. In this regard, there is no lack of various instruments provided under law, like negotiated planning across the three phases of institutional planning agreements, framework agreements, simple agreements (Financial Law 2007) in addition to a few significant experiences in Lombardy. Collaboration is even a general principle of the Cultural Heritage Code listed in its general provisions (art. 5, cooperation with regions on protection), art. 6 and 7 (development) and art. 112 (shared strategic plans on cultural development and management agreements). The results, however, are still modest.
The reasons are many, but one is the springboard for the rest: relations between public administrations and in particular between The Cultural Heritage Ministry and local systems, despite public policies affecting the matter being inextricably connected, still rest on the cornerstone of a system conceived of for a different context: the inevitable conflict between the inviolability of private property and the priority of a higher public interest.
This general fact (and related modalities) applied to relationships between institutions generates two significant drawbacks: the inability of concrete translation of administrative action (not limited to what is excluded but extended to what is possible, recommended or even actively promoted), in many cases indispensable, and an unyielding unilateral nature typical of the measures taken (limits, bans, authorizations, fines).
Nothing could be further from the foundation and practice of cooperation. The result is that at the end of complex procedures of mutual dealings, the last word must inevitably be had by one or the other: normally by the Superintendency, in particular cases, of the highest institutional level, whether political or administrative. All of which does not facilitate formulating and managing in truly cooperative terms the whole previous phase, especially in art cities where by definition city government and cultural heritage conservation are intimately connected and almost overlap.
Part of these problems can be absorbed by shared plans and programs. A particularly significant example in this regard is how the issue is dealt with at UNESCO sites (of which there are many in Italy) where cooperation takes place almost exclusively on a functional level and is translated in the adoption and implementation of the "management plan", which contains all the regulative and operative actions regarding the territorial sphere in question no matter the competent public authorities involved. Guidelines to this plan were recently transposed in Italian law with art. 3 of Italian law 77/2006 .
Naturally, the problems do not end here.
Meanwhile, as the most recent events regarding ships in Venice demonstrate , when the site (in this case city and lagoon) coincides with the entire municipal territory delicate problems arise from the self-evident asymmetry between shared regulative powers - the management of the site and the management of the city are two sides of the same coin - and the concentration of fundamental components for the system - from the resources needed to political and administrative responsibilities - in the hands of the mayor and municipal administration.
Next, in my opinion and according to a mostly minority view, we must rethink the organization and conceptual and legislative definition of protection: if protection also incorporates, as it should, the active dimension of use and development of our cultural heritage, then, on these points and for all the assets not falling within the more limited sphere, we must map out the unexplored terrain of strong incentives for co-decision and just as powerful disincentives for inertia: both uncharted territory for the benefit of semi-theological debate and expanses of prose rich only in words.
All of this is conceivable only by making a distinction between two areas: a limited area pertaining to cultural heritage in which protection and conservation are binding and entail, if necessary, sacrificing any other interest relating to them, even if primary and public in nature, like compliance with the stability program or military needs, and a much broader area of which protection and conservation are part but only on the condition of defining them in terms of proportionality - coherence - practicality - efficiency, with other public and private interests worthy of consideration and therefore to be evaluated in terms of adequate balancing.
We cannot forget the crucial role of integrated development plans for the development of art cities, of which almost all cities are deficient (including the recently designated metropolitan cities). Deficiency, especially in cases like these, is less about resources - take, for example, the case of European funding - than the awareness of the importance of the thing itself. In other words "cultural" deficiency.
And here the issue becomes very real and current: the imperativeness of properly using European funding for the next seven years (2014-2020) and especially the National Operational Programme on culture, geared towards less developed regions (Campania, Basilicata, Puglia, Calabria and Sicily), the proposed Italian text of which will be definitively completed shortly. The Cultural Heritage Ministry should make supporting the definition and implementation of integrated development and management projects covering a vast area its objective (which would mean also seriously considering the so-called "area of attraction"). If instead it should transfer the majority of these important resources only to state-owned assets or insist on easier routes already uselessly traveled upon such as restoration (which risks being economically useless without realistically anticipating activity plans and systems) or putting together dated projects without any strategic reasoning, it would be more than just a lost opportunity.
It would indeed be a sign that the problem is a "cultural" one and one that begs to be addressed, especially at this level, as we strive to do so on this occasion thanks to the Accademia dei Lincei.
[*] The text reproduces the report submitted to the Conference of the Academy of the Lincei of 4 November 2014.
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