July 31, 2015

NRO piece on PLF suit challenging Oakland's public art exaction

By Todd F. Gaziano Chief of Legal Policy and Strategic Research, and Director, Center for the Separation of Powers

Earlier this week, National Review Online ran my piece on PLF’s lawsuit against the City of Oakland. The lawsuit challenges an illegal ordinance requiring builders of residential and commercial projects in the City to either produce public art displays on the building sites or pay a fee for local artists to create such a display elsewhere in town. The op-ed explains why the Oakland law violates both the Constitution’s Takings Clause and the First Amendment rights of owners who don’t want to speak through City-approved public art:

In a series of important decisions that PLF helped secure, the Supreme Court has held that government may not demand or “exact” concessions as a condition of approving construction unless those exactions are related and proportional to public costs caused by the construction at issue. Thus, a city might be able to require a reasonable sewer hook-up fee commensurate with the cost to the city, but it could not lawfully insist on an easement for the public to picnic in your backyard because it wants more public parks. In another win by PLF in 2013, the Supreme Court held that property owners also could not be required to fund government projects on other property that were unrelated to the impacts of the development at issue.

The Oakland public-art requirement (or fee) is illegal, because the construction of residences or office buildings does not reduce the stock of public art or citizens’ enjoyment thereof. In addition, the requirement violates the First Amendment rights of owners who don’t want to speak through “public art,” particularly that which must be approved by the government. The city could not force property owners and developers to engage in or spend money on legislative activism as a condition of building, even if it left it to them what type of legislative activism to pursue. Art, particularly public art, is an expressive activity that the government can’t force anyone to engage in. It’s even worse if the city specifies the art that qualifies.

Tony Francois and Dave Breemer, the lawyers actually litigating the case on behalf of the Building Industry Association of the Bay Area, have their own pieces in Liberty Blog here and here, respectively. Yet Dave and I should provide Jim Burling with credit for making us aware of this sculpture in San Diego, which we both linked to. As a constitutional matter, it doesn’t matter if all of the art on Oakland’s approved list was worthy or as ugly as the giant, phallic dung sculpture in San Diego, but it is another reminder of the moral hazard that may result when someone else, especially the government, decides what your money should be spent on.

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Building Industry Association Bay Area v. City of Oakland

An Oakland city ordinance requires anyone building a new residential or commercial project to either create a government-approved display of art or subsidize artists to create a display elsewhere in town. PLF represents the Building Industry Association of the Bay Area in a lawsuit challenging this law as violating the constitutional prohibition on taking money as a permit condition to fund government projects that are not directly related to the construction for which the permit is sought. Moreover, the law violates the First Amendment by forcing property owners and developers to engage in expressive activity.

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