Meeting the Challenges of Public Art Programs in Private Development

• Publication year: 2019
• Author: Christopher Chou and Karen Frank

Meeting the Challenges of Public Art Programs in Private Development

Christopher Chou and Karen Frank

Christopher Chou provides counsel on a variety of regulatory issues with a focus on land use, environmental, and municipal law. He has experience helping clients with innovative and challenging projects on issues related to land development and infrastructure, including entitlements, permitting, and environmental review.

Karen Frank is a partner at Coblentz Patch Duffy & Bass LLP, where her practice covers numerous aspects of intellectual property law, including copyright, trademark, right of publicity, internet, publishing and advertising law. She is past president of the Copyright Society of the USA, former chair of the Copyright Society of Northern California, a member of the International Trademark Association (INTA), and a member of the American Law Institute. She has been selected by her peers for inclusion over many years in Who's Who Legal: California, Trademarks chapter; Who's Who in American Law; and Who's Who in America; has been recognized as a Northern California Super Lawyer and Top Woman Lawyer; and was named Northern California Copyright Lawyer of the Year in 2017. She is a frequent speaker on intellectual property issues, including for the Practicing Law Institute and other forums.

INTRODUCTION

There is a growing effort among cities to leverage the private development permitting process to fund and provide art that is accessible to the public.¹ California, perhaps unsurprisingly, has proven to be fertile ground for these programs and many California cities adopted public art programs starting in the 1970s.

These programs, still in effect today, largely follow a similar template. As a condition of development, many cities require developers to either pay into a public art fund or to provide publicly accessible art as part of the development. The value of such a payment or installation is typically based on a percentage of total development costs. Where art is provided as part of the development, cities generally exercise some control in reviewing the proposed art/artist. Public art under these programs must remain in place for a specified period of time, if not indefinitely.

In this article, we assume that the goal of these public art programs differ materially from other development requirements such as traffic mitigation or aesthetic regulations to encourage visual harmony with the development's surroundings. Programs that encourage public art to be provided through private development requirements recognize private developments as an important locations for public interface and that art and cultural experiences at these sites can have immense benefits to the development and public alike. Public art provided by private development is, thus, ideally a collaborative process that encourages creative and even stimulating installations.

But the integration of public art into private developments can create challenges—between the developer and the city, the developer and the artist, and the developer and the general public.² In this article, we discuss some of the potential challenges created by programs requiring public art to be integrated into private development, including where programs might inadvertently limit the creative possibilities of private development.³

[Page 27]

I. BACKGROUND

In this section we provide an overview of the public art programs of California cities and discuss recent litigation involving public art requirements.

A. Public Art Requirements in California Cities

Unlike some states, California does not have a state law that specifically governs public art requirements.⁴ Cities' authority to impose public art requirements on private development rests not on a specific statutory grant, but is instead grounded in their traditional police powers.⁵

One of the earliest public art programs in California was adopted by the City of Brea in 1975. Many additional California cities subsequently initiated programs, including San Francisco (1986), Emeryville (1990), West Hollywood (2004), Pasadena (2006), Berkeley (2017), and Oakland (2017). These are some of the typical features/components of these programs:

1. Types of Development Subject to Requirements

In most cities, the public art requirement is imposed based on the development's size⁶ or value.⁷ Cities also may base the requirement on the project's use, i.e., single-family residences are often exempted from the requirement.⁸ And many jurisdictions exempt projects with an affordable housing component.⁹ Some cities vary requirements based on the location/zoning of the project, including San Francisco, which originally only required public art in the downtown zoning district, and Pasadena, which imposes different criteria for downtown areas compared with other areas of the city.¹⁰

2. On-Site Provision and In-Lieu Fee Option

Almost universally, cities offer at least two options for fulfilling the public art requirement: on-site provision of art, or an in-lieu fee contribution to a public art fund.¹¹ Some cities, such as Berkeley, allow a developer to use a combination of on-site provision and in-lieu fees to fulfill the requirement. Other cities, such as San Luis Obispo, provide additional options, including dedicating art to the city.¹²

3. Value of the Obligation

Nearly all of the city public art requirements are based on a percentage of construction costs or building permit valuation. A typical requirement is 1% of building permit valuation,¹³ although rates vary: the City of Indio imposes a 0.25% requirement based on assessed building value above $100,000 for single family residences; Berkeley's requirement is 1.75% of construction costs for on-site projects.¹⁴ Some projects may vary the requirement based on the underlying use.¹⁵ Some programs may also impose different value requirements depending on whether the requirement is fulfilled with on-site provision or an in-lieu fee. Berkeley, for example, requires that the value of on-site art is 1.75% of construction costs, but the in-lieu fee is only 0.8% of construction costs.

4. Defining "Art"

Cities vary in their criteria for what constitutes "art." Generally, cities have some requirement of originality.¹⁶ West Hollywood, for example, requires that the public art be "made specifically for the project."¹⁷ The guidelines for San Francisco's 2 Percent for Art program draws a distinction between art and architecture; decorative elements designed by the project architect or consultants do not constitute "art."¹⁸ Most cities have some approval process for selecting the artist for a work of public art (discussed below in Subsection 7, Approving the Art).

Many cities allow a broad range of mediums to satisfy the public art requirement. Berkeley, for example, includes the following in its definition of "art": functional art integrated into the building, landscape, or element of infrastructure, including sculpture, monument, mural, painting, drawing, photography, fountain, banner, mosaic, textile, art glass, digital media art, video, earthworks, and multi-media installation.¹⁹

5. Defining "Public"

Privately provided art must be "public" in the sense that it is "accessible" to and enjoyable by the public.²⁰ Generally, this presumes that the art is accessible during business hours²¹ or for some specified number of hours per day,²² though some cities may expect that the public art be viewable at all times.²³ Some cities allow public art to be provided on public property.²⁴ The options to meet public access requirements in San Francisco vary based on use and location.²⁵

6. The Artist

In some cities, the artist must be approved by a local art commission.²⁶ Other cities merely include considerations for artist selection as part of their review of the project application as a whole. Nearly all cities set expectations of who qualifies as "an artist," including the expectation that artists will be established and recognized by critics and the art community.²⁷ Many cities also encourage the selection of local artists.²⁸

[Page 28]

7. Approving the Art

The approval of the public art is generally tied into the approval of the development itself—localities generally require approval of the art project/plan before the issuance of building permits, if not before issuance of land use entitlements.²⁹ Consequently, the public art project must be developed concurrently with the design and development of the overall project.³⁰ Some cities stress that the public art is an "integral part" of the development and even encourage including the artist as a member of the project design team.³¹ Local processes for approval of public art projects vary, but generally involve multiple stages of review.³² The City of Indio's program guidelines lay out a twelve-step review process.³³

8. Duration of the Art

Generally, public art is expected to be permanent.³⁴ Some cities specify a minimum duration for a public art project;³⁵ other cities expect the public art to last the lifetime of the development project.³⁶ While the art is generally considered to be the property of the developer, developers are prohibited from selling the art separately from the project, and the art must be passed onto subsequent owners.³⁷ Property owners are generally responsible for maintenance of the public art.³⁸ Cities often require the recordation of instruments against the property memorializing the permanence of the art and the associated maintenance obligations.³⁹

B. Litigation Challenging Public Art Requirements

Two major California cases have addressed public art requirements.

1. Ehrlich v. City of Culver City

One of the most important California cases concerning development fees also happens to have involved a public art requirement. In 1996, in Ehrlich v. City of Culver City,⁴⁰ the California Supreme Court considered a challenge to development requirements imposed by Culver City, including a fee to fund recreation and an in-lieu fee under the city's art in public...