Real estate developers are suing the city of Oakland over a new law that requires them to set aside funds to commission and install public art in new residential and commercial buildings.
The law — technically an amendment to the city’s Percent for Art Ordinance, which was passed in 1989 but only covered municipal construction projects — was approved in December and put into effect in February. It follows the same principles as older provisions in other Bay Area cities (including San Francisco, Napa, and Emeryville) calling on developers to set aside a small percentage of their construction budgets — .5% for residential projects with more than 20 units, 1% for commercial buildings of more than 2,000 square feet — for the “acquisition and installation of publicly accessible art on the development site.” Developers who do not wish to comply with the ordinance may alternatively pay an equivalent sum to Oakland’s Public Art Project. (They may cover part of that sum by including a public, programmable gallery or community space in their construction projects.) However, the Building Industry Association of the Bay Area (BIA Bay Area) claims in a federal lawsuit filed against the city of Oakland on July 23 that the new public art ordinance violates the First and Fifth amendments.
The group, which represents some 300 builders, contractors, suppliers, and other players in the Bay Area housing industry, claims that the ordinance violates the Fifth Amendment’s protection against “uncompensated takings” by requiring developers to pay a fee or commit to providing public art in order to obtain building permits. According to an announcement from the Pacific Legal Foundation, which is representing the BIA Bay Area in the case, public art has “no reasonable connection to any impact from their projects,” even though public art’s potent role in cities’ redevelopment and fostering vibrant street life — and thus boosting local property value — is accepted fact. Or, as Eric Arnold of the local nonprofit Community Rejuvenation Project told the Contra Costa Times, “Public art is how cities become art cities … You don’t become a world-class city without world-class art.”
The ordinance, according to BIA Bay Area, also violates the terms of First Amendment free speech protections by compelling developers to give voice to “government-mandated public art works by government-designated artists.” However, there is no language in the ordinance about the content of the works commissioned, and the specific artists selected by developers need not be approved by the city, but may also be:
… artists working in conjunction with arts or community organizations, that are verified by the City to either hold a valid Oakland business license or be an Oakland-based 501(c)(3) tax designated organization in good standing. Developers and/or owners installing art created by an artist not verified by the City shall pay a verification fee to the City.
As Oakland Mayor Libby Schaaf — a champion of the ordinance last year, when she was still a member of city council — told the Contra Costa Times, “There’s no review of content, none at all, because it’s private money.”
“We as a region need to decide if we are serious about increasing housing opportunities in the Bay Area for working households in a responsible and sustainable way,” Bob Glover, the executive director of BIA Bay Area, said in a statement. “We cannot do that if local governments continue to pile the cost of providing every conceivable social program on new housing development. It is simply irresponsible to bemoan the lack of new housing affordable to working households while refusing to make the tough decision to say ‘no’ to increasing the cost of new housing.”
Glover did not mention the provision of the new public art ordinance that allows for the exemption of “affordable housing development if the developer demonstrates to the satisfaction of the City that said requirements would cause the development project not to be economically feasible.” But then again, providing affordable housing doesn’t seem to be one of BIA Bay Area’s goals. In 2010 the California Building Industry Association (of which BIA Bay Area is a local affiliate) sued the city of San Jose to prevent it from passing an ordinance that would require 15% of all new housing to be affordable. That lawsuit was finally resolved last month, when California’s Supreme Court ruled in favor of San Jose. How long the latest lawsuit — against Oakland’s public art ordinance — will drag on is anybody’s guess.
Correction: A previous version of this article suggested in the photo caption that the sculpture in Oakland’s City Center complex was the work of David Corby and had been photographed by Roslyn Mazzilli. The sculpture, titled “There,” is by Mazzilli, and the photograph is by Corby. Hyperallergic apologizes for the error and any confusion it may have caused.