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First Amendment: Developers Sue Oakland over Art

Developers are suing the City of Oakland, alleging that it is violating the First and Fifth Amendments by requiring them to pay a percentage of construction projects towards funding public art.

The Pacific Legal Foundation is representing the Building Industry Association (BIA), which is suing over a new law, implemented this past February. The new law requires one percent of the budget for non-residential construction projects, and half of that amount for new residential buildings, to be contributed to public art, which must be made accessible to the public. Essentially, all developers with a construction permit are required to pay the fee for public art.

On top of that, the artist commissioned to complete the public work will be selected by the city, leaving politicians with the ability to express and impose their own views on residents through artistic expression. In short, private companies are being forced to pay for political projects, the lawsuit alleges.

The lawsuit states that “[t]he First Amendment forbids the government from forcing property owners to fund and convey government messages, including through art, as a condition of granting a permit.” Furthermore, the suit suggests that this tax allows for conditions that pressure property owners and residents to relinquish their First Amendment rights in order to obtain a building permit.

While the City of Oakland is permitted to regulate development within reason, and under the confines of the Fifth and Fourteenth Amendments, the lawsuit says that local governments are forbidden “from imposing permit exactions that are unconnected and disproportionate to the direct impacts of development.” The city-commissioned artwork is separate from these developments and under the new law, it is the home buyers and renters who will be burdened.

Tony Francois, an attorney at the Pacific Legal Foundation told. California Real Estate Rama, “[t]he art-funding mandate is yet another government deterrent to the creation of more housing in Oakland. Already, there are thousands of homebuilding projects that have been approved in Oakland, but not acted upon, because high construction costs make them unaffordable.”

In 1978, the Chicago became the first American city to require a percentage of new developments go towards public art through passage of the Percent for Art Ordinance, “which stipulates that a 1.33% of the cost of constructing or renovating municipal buildings and public spaces be devoted to original artwork on the premises.”

BIA holds that this burden should not rest with the private developers or their future tenants.

Follow Adelle Nazarian on Twitter @AdelleNaz and on Facebook.

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