Developers sue Oakland over public art rules

Emeryville Public Art
Public art projects in Emeryville like Max De Moss' "Platter 143" at Emery Station North at Horton and 59th Streets were made possible by a law similar to one in Oakland that developers are now suing to overturn.

Oakland’s new public arts ordinance is being challenged in federal court by building developers who are arguing that it is unconstitutional for the city to require art installations in residential and commercial development projects.

The city ordinance was passed late last year and requires residential developers to devote 0.5 percent of the building development cost to an on-site public art installation or to put the same amount into a city public art fund. Nonresidential developers are required to spend 1 percent of development costs.

Attorneys for the Pacific Legal Foundation and the Building Association of the Bay Area argue in a complaint filed in U.S. District Court today that the policy is unconstitutional under the First and Fifth Amendments to the U.S. Constitution.

The policy requirement violates the Fifth Amendment by seizing private funds as a condition of a development permit and the First Amendment by requiring developers to create artwork as a condition for building.

Oakland’s ordinance is closely modeled on an Emeryville ordinance enacted in 1991. According to Oakland officials, similar development projects have been enacted in San Francisco, San Jose, Walnut Creek and Santa Rosa.

Pacific Legal Foundation Staff Attorney Tony Francois said today that his firm has no plans for litigation against any of those other cities:

“The Oakland ordinance was quite recently adopted so that’s the one that we’re focused on right now.”

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