Square Feet: Developers Fight Efforts to Make Them Pay for Public Art

anastasios pallis

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.

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