Development projects do not cause a need for public art

On behalf of the Building Industry Association of the Bay Area, PLF sued the City of Oakland, California, challenging the constitutionality of a development fee to fund public art projects. The public art law was originally intended to create business for local artists and sought to achieve this objective by conditioning all building permits on a requirement that the developer give a percentage of the project cost to a local artist to install freely accessible public art on the project. After reviewing the lawsuit, however, the city amended the ordinance to “encourage, but not require” that the developers use local artists. Nonetheless, the city’s amended law violates home and commercial builders’ First and Fifth Amendment rights.

The Fifth Amendment of the U.S. Constitution requires the government to pay just compensation when it takes property for public use. It bars cities from evading this requirement by demanding unrelated property in trade for a permit. That is, the government cannot take property – including money – to address problems unrelated to the construction project for which the permit is sought, unless it pays just compensation. The amended ordinance purports to identify “needs” created for public art, but all of them are community-based, not specifically tied to the proposed development as the constitution requires. Moreover, because the developers are forced to display art created by specially-defined “artists” when they would rather not engage in artistic expression on their property, the law violates the First Amendment as well.