July 23, 2015

PLF sues to stop unconstitutional public art fee on new homes

By Anthony L. Francois Senior Attorney

Today’s money-no-object urban planning elite have a long list of things they think no modern city should be without, but many have no money to buy the stuff on their list. And, city residents tend not to support tax increases to pay for many of these priorities, even if they support someone else paying for it.

So city bureaucrats turn to other sources of cash, and their power to deny land use permits is a powerful lever for coercing property owners to fund unrelated city priorities. Today’s example is PLF’s suit, on behalf of the Building Industry Association of the Bay Area, against the City of Oakland, California, challenging the constitutionality of the city’s new development fee to fund public art projects. In an effort to create business for local artists, Oakland has decreed that you cannot build homes or commercial projects without giving a percentage of the project cost to a local artist to install a public art work on your project, and then provide public access to the installation.

The United States Constitution requires the government to pay just compensation when it takes property for public use. It also bars cities from using the leverage of their permit powers to evade this requirement by demanding unrelated property in trade for a permit. Put in a common sense way, while the government can protect your neighbors from traditional nuisance impacts your property use causes, it cannot take your property to address problems you don’t cause, unless it compensates you. Oakland freely admits that its public art fee doesn’t mitigate any aesthetic or other impact which new development causes, but instead is just trying to create business for its local artists. That is unconstitutional, and PLF is on the case.

A public art installation at the American Embassy in Canada
A public art installation at the American Embassy in Canada

 

learn more about

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.

Read more

What to read next