A new program adopted by the city of Oakland, Calif., to force builders to fund projects by artists who are chosen by the city is being challenged in federal court, where the builders have filed a lawsuit alleging violations of the Constitution’s First and Fifth Amendments.
The case has been brought by the Pacific Legal Foundation on behalf of the Bay Area Building Industry Association, whose members are being required to pay an additional one percent of the cost of any commercial project to a city-picked artist.
For residential projects, it’s half of that, but still can add hundreds of thousands of dollars to the cost of a large development, the complaint explains.
The new city demand for payments, imposed just months ago, violates the Fifth Amendment’s ban on uncompensated takings and the First Amendment’s prohibition against compulsory speech, the legal team is arguing.
WND called the city on Friday to request a comment, but there was no answer at the city number.
Tony Francois, a spokesman for the PLF, said there’s been just enough of treating business owners as piggy banks for the city.
“Commissioning more public art might be a laudable goal, but the responsibility to fund it should rest with city government and taxpayers as a whole, not with builders and the home buyers and renters who will have to pay more,” he said.
“Oakland is committing a broad-brush violation of the Constitution by treating builders, as well as home purchasers and renters, as ATMs to fund the city council’s wish list for public art projects,”
He continued, “The construction of new housing and commercial projects doesn’t create a new aesthetic need that justifies a public art funding mandate. To the contrary, the design review process and state environmental laws already ensure that new construction will meet reasonable aesthetic standards. The public art-funding mandate is just a scheme to grab money from a convenient source – local builders – for a program the politicians favor. The Fifth Amendment forbids this kind of abuse of the land use permit process.”
“As a condition for a construction permit, the law orders builders either to install public art works in their projects, or pay the city an in-lieu fee for public art works on public property,” PLF said.
If a developer elects to install public art, part of his or her private property then must be opened to the public, and the only artists in the program are those “verified” by the city.
But the complaint argues the Fifth Amendment prohibits “unrelated demands for property or money as the price of a building permit.”
“Oakland’s art mandate violates this rule by forcing owners to underwrite a public benefit – public art works – with no reasonable connection to any impact from their projects,” PLF said.
And under the First Amendment, the government it not supposed to be able to require someone to speak its message – but this compels builders to engage in expressive activity against their will, according to the claim.
“Hitting up builders with unjustified costs also harms the public interest in general. Oakland’s public art-funding mandate adds tens of thousands of dollars or more to the cost of building homes, and to other kinds of building projects,” said Francois.
“The art-funding mandate is yet another government deterrent to the creation of more housing in Oakland. Already, there are thousands of homebuilding projects that have been approved in Oakland, but not acted upon, because high construction costs make them unaffordable. As a recent report by the state legislative analyst documented, high construction costs are driven in significant part by expensive government mandates and regulations on homebuilders.”
Bob Glover, an association spokesman, said, “We as a region need to decide if we are serious about increasing housing opportunities in the Bay Area for working households in a responsible and sustainable way. We cannot do that if local governments continue to pile the cost of providing every conceivable social program on new housing development. It is simply irresponsible to bemoan the lack of new housing affordable to working households while refusing to make the tough decision to say ‘no’ to increasing the cost of new housing.”
The case was filed in U.S. District court for the Northern District of California.
The complaint states the Constitution forbids “the government from forcing property owners to fund and convey government message, including through art, as a condition of granting a permit.”
It continues, “On its face, the ordinance exacts property from building applicants – including physical property, money and the right to exclude strangers from private property – without just compensation and without any reasonable connection between these exactions and the social impacts of development.”
It seeks an injunction halting enforcement.
from PropagandaGuard https://propagandaguard.wordpress.com/2015/08/01/builders-forced-to-purchase-art-to-receive-permits/
from WordPress https://toddmsiebert.wordpress.com/2015/08/01/builders-forced-to-purchase-art-to-receive-permits/
No comments:
Post a Comment