The NY Times just posted an interesting article on real estate developers and municipal efforts to induce and persuade them to include public art in their projects. Developers are calling such efforts art tax and are fighting the momentum which now includes programs in 27 states and Washington DC. In some areas the developers are taxed or contribute to an art fund for obtaining certificates of occupancy, while other localities have granted additional building rights, such as higher density for the art funding.
An interesting article, and I would guess the additional costs are passed along.
The NY Times reports
Source: The NY TimesReal estate developers often agree to finance neighborhood improvements, like a sidewalk or a park or a bus stop, to help secure approval for their projects, but many are drawing the line in a new fight: paying for public art.
A growing effort to make developers include public art in their private projects or contribute to a public art fund is meeting angry resistance. Municipal leaders facing tight budgets are looking for alternative funding, but builders say the new ordinances are an “art tax” that increase the cost of a project.
“Among other cost drivers are the additional expense of hiring art consultants and attorneys to present proposed works to an art board,” said Truly Burton, executive vice president of the Builders Association of South Florida. “All this factors into how much someone pays in rent or a mortgage payment every month.”
Percent-for-art ordinances aimed at private developers have been growing in recent years, expanding statutes in 27 states and the District of Columbia, as well as in a variety of counties and cities and even for the federal government. These laws typically require around 1 percent of construction and renovation costs for public buildings to be set aside for the purchase of artworks for the site.
“There is a general understanding that art in a community elevates that community, making it safer, healthier and more fun to live in,” said Sarah Conley Odenkirk, a Los Angeles lawyer specializing in transactional matters related to the arts in the private and public realms.
Cities in Florida and in California have been leaders in instituting percent-for-art requirements for private developers. But they are facing pushback.
The Builders Association of South Florida and the Miami Downtown Development Authority are both battling a proposal before the Miami City Commission that would require developers whose construction projects cost more than $3 million to spend up to 1.25 percent on publicly accessible art.
The specific percentage depends on the construction costs, although developers could spend a bit less by contributing up to 1 percent of the cost to a city-managed fund for public art. Without proof that this requirement has been met, building owners would not receive a certificate of occupancy.
If the ordinance is adopted, it would generate approximately $14 million annually in public art around the city, said Efren Nuñez, a Miami city planner and a principal author of the measure.
But there is a debate over which neighborhoods should benefit from the regulation. The aim of the Miami Planning Department is to enhance neighborhoods through the installation of works of “art all over the city, not just in the wealthier areas,” Mr. Nuñez said.
He said many developers of Class A commercial office buildings and luxury residential high-rises already incorporated works of art into their designs. However, the City Commission voted last year to exempt from the proposal developers of affordable housing projects.
“Everyone should have access to art, regardless of their social and economic status,” Mr. Nuñez said.
But opponents complained that the ordinance would increase costs and that developers would not have a free hand in picking art they liked. Alyce M. Robertson, executive director of the Miami Downtown Development Authority, stated in a letter to the city manager that the legislation provided a “disincentive for investing in art, because any art commissioned by the property owner would be subject to review by an advisory committee.”
The problem for local governments is that “public dollars have gotten much tighter” since the recession of 2008, Ms. Odenkirk said.
“There is a need for public-private partnerships,” she added. “We need more public art.”
There is no database of the number of municipalities with percent-for-art requirements for private developers, although Ms. Odenkirk estimated the number at 80 to 100. She stressed the societal need for the ordinances, saying that art “increases tourism, decreases vandalism and increases property values and thereby the tax base.”
Some cities have found success. Scottsdale, Ariz., expanded its 1985 percent-for-art law to include art in private development because “funding for capital projects was declining,” said Kim Curry-Evans, director of Scottsdale Public Art.
Developers in the city were among the strongest supporters of the law, Ms. Curry-Evans said. “It is not seen as taking money away but as enhancing and beautifying these building projects,” she said.
Catclar Investments in Scottsdale installed a half-million dollars’ worth of art, including large-scale photographic murals and a sculpture resembling a Lego brick, at its Soho Scottsdale condominium development. “Putting art in new developments all over town is a brilliant idea, because it gives life to projects,” said Irene Catsibris Clary, principal at Catclar.
But in other areas across the nation, developers are fighting back.
In Oakland, Calif., the Building Industry Association of the Bay Area sued to block an amendment that added developers of commercial and residential properties to the city’s percent-for-art statute. The group argued that the law violated both the First Amendment, by requiring speech in the form of purchasing works of art, and the “takings clause” of the Fifth Amendment, which limits a public entity’s ability to take control of private property for public use.
“The First Amendment’s free-speech guarantees include the right not to give voice to someone else’s message,” the association said in a statement.
In February, the Federal District Court in San Francisco ruled in favor of the city, saying the Supreme Court has interpreted the “takings clause” to apply only when government officials require something from a developer regarding a specific property rather than a broad class of properties.
Judge Vince Chhabria also ruled that “the ordinance does not require a developer to express any specific viewpoint, because developers can purchase and display art that they choose.”
Despite the increased resistance, some municipalities have found ways to negotiate with builders to sweeten the requirement.
St. Louis Park, Minn., for instance, has no ordinance for public art, but city officials are “able to require it when the developer is getting something in return from the city,” said the city’s community development director, Karen Barton. The negotiations may include public financing or flexibility in land-use requirements, she said.
In Portland, Ore., the building code states that developers may obtain “zoning bonuses,” such as additional square footage, by incorporating public art into their projects. Suwanee, Ga., “will not issue building permits” until developers at least meet with the Public Arts Commission to hear a pitch about spending 1 percent of construction costs on public artwork.
That requirement to meet with the commission seemed less “combative” than ordering a 1 percent art expenditure, said Toni Shrewsbury, special projects coordinator in Suwanee’s economic development office.
“Developers we talked to said that requirement wouldn’t be met with opposition if the percent-for-art rule weren’t mandatory,” she said.
What these percent-for-art ordinances do not address is what happens to the public artwork after it has been installed.
Ms. Odenkirk noted that some building owners in Los Angeles had removed them — selling them, junking them or just putting them in storage or somewhere else — “which has the effect of undermining the process.”
“There is no enforcement mechanism within these ordinances, and city officials don’t want to irritate the developers who are putting resources into a community,” she said.
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