A Court Case in Oakland Could Radically Affect Public Art Across the U.S.
Cities across the country have laws requiring that government or private developers set aside a percentage of construction costs for public art. There are more than 400 such “Percent for Art” programs nationwide, according to the organization Americans for the Arts. But in a court case with broad implications for other public art programs, a building trade group is now charging that Oakland’s new Percent for Art law, which took effect this year, is unconstitutional because it burdens private developers with the cost.
SEP 8TH, 2015 7:26 PM
Claes Oldenburg’s Clothespin (1976) was created through Philadelphia's Percent for Art program, the oldest in the U.S. Photo: John Vosburgh via Flickr
Under Oakland’s ordinance, the lawsuit says, the city won’t issue them a building permit unless they either devote up to 1% of construction costs to public art on their property or contribute to the city’s public art fund. The Building Industry Association of the Bay Area, which filed the lawsuit in California’s federal court on July 23, says that requiring private developers to fund public art is the kind of “taking” of property without compensation that is forbidden by the Fifth Amendment. The suit also alleges that because art is expression, requiring developers to install or finance public art is forcing them to engage in government-sponsored speech, which is forbidden by the First Amendment. “The government can’t force you to engage in artistic expression,” says the association’s lawyer, Anthony François of the Pacific Legal Foundation.
The trade group’s argument is based on a U.S. Supreme Court case, Koontz vs. St. Johns River Water Management District, decided in 2013. In the case, the court restricted the government’s ability to exact money from developers before issuing a building permit, determining that in order to be constitutional there had to be a connection between the impact of a development and what the money would be used for. “The question is, can [Oakland] show commercial development causes an impact that requires it to be mitigated through art?”.....
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