Builders Fight Oakland’s Public Art Law

SAN FRANCISCO (CN) - The Building Industry Association sued Oakland, Calif., claiming its Public Arts Requirements Ordinance is an unconstitutional imposition of forced speech.

The Building Industry Association is a powerful and well-heeled trade group, particularly in California. Its July 23 federal lawsuit takes aim at the ordinance the City Council adopted on Dec. 9, 2014, and which took effect Feb. 8.

The law - Oakland Municipal Code § 15.70.010 et seq. - requires developers to include publicly accessible art as part of new projects, if the project cost exceeds $300,000 for commercial developments, or more than 20 units for residential.

The BIA lawsuit does not mention the cost baseline. The law requires that 1 percent of qualifying commercial projects be devoted to public art, and 0.5 percent of residential projects, or that a corresponding amount be paid to the city for its public arts programs.

The BIA calls the law an unconstitutional taking and unconstitutional forced or coerced speech. Even the in-lieu fee "violates the association's members' right not to engage in speech," the BIS says in the complaint.

"The First Amendment forbids the government from forcing property owners to fund and convey government messages, including through art, as a condition of granting a permit," the complaint states.

The BIA particularly objects to the government intrusion into private development.

The law requires builders to choose an artist verified and approved by the city, and requires that the designs be submitted to the city before the art is installed.

The BIA seeks declaratory judgment and an injunction. It is represented by Anthony Francois with the Pacific Legal Foundation in Sacramento.

Francois and the Oakland Attorney's Office did not immediately return requests for comment Friday.

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