On October 27, the Planning Commission will hear a proposed amendment to San Francisco Planning Code Section 429, which currently requires that any new building in the Downtown C-3 District of at least 25,000 feet include a work of art equal to at least 1% of the construction value onsite in a privately owned public open space, or onsite and clearly visible to the public, or on adjacent public property or, in the case of a hotel, in a publicly accessible lobby.
The artwork to be provided must be permanent and not merely architectural detailing of building features. There are extensive “Fine Arts Guidelines” that further describe how the cost of the art is determined, the process for incorporating the art into the development, etc. In the 25 years since the adoption of the Downtown Plan, an average of about one project per year has added new art to what is now a permanent public gallery of lasting significance. Although the cost can be significant, most developers understand that the public art component of their project can be an enhancement contributing to the overall perception of quality of the building. Although there have been limited exceptions over the years allowing developers to direct these funds to alternative uses (the Dome at City Hall and restoration of the old Mint Building), in the absence of some compelling reason, developers would prefer that the money they spend on art remain associated with their projects.
In July, the Mayor introduced an alternative ordinance which would amend Planning Code Section 429. The new ordinance would give developers an option to contribute all or a portion of the art fee to a City fund dedicated to support public art. The amendment would establish a Public Artwork Trust Fund funded through these contributions, which would pay for the creation, installation, exhibition, conservation, preservation and restoration of temporary and permanent public art. On its face, it would be hard to understand how any developer would freely elect to divert construction funding for art to some offsite use, not directly benefiting the project itself. However, the ordinance includes a new step in the Section 429 process whereby the Art Commission would be given jurisdiction to review all onsite art proposals. Since judgments regarding art are necessarily subjective, it is easy to see how the Art Commission’s review might be different and more critical than the existing process which includes a review only by the Planning Commission. In fact, the proposed amendments to the ordinance would invite the Art Commission to become an arbiter knowing that their negative reaction to an art proposal could cause the developer to pay in lieu moneys to the proposed newly formed “Public Artwork Trust” rather than continuing to attempt to provide the art onsite.
The Planning Department is reviewing the proposed ordinance and will be providing comments at the hearing before the Planning Commission on October 27. While portions of the amendment may be well intended, the language and mechanics of the process include significant potential for arm twisting developers and project sponsors to divert their funding offsite. At a minimum, the option to elect to pay an in lieu fee ought to be entirely voluntary. The Planning Code Section 429 Art Program has been a success with the Planning Commission reviewing proposals. To date, the Art Commission has not been included in the review of art provided by project sponsors under San Francisco Planning Code Section 429. The addition of an Art Commission review adds time, expense, and uncertainty. Subjective review of the Art Program by the Art Commission could, in of itself, convince developers to offer all or a portion of their required 1% art budget to the newly created “Public Artwork Trust” rather than take on the uncertainty of a second Commission hearing.
We will further report on the Planning Department’s recommendations and the results of the hearing at the Planning Commission on October 27.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben & Junius, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.
Copyright 2011 Reuben & Junius, LLP. All rights reserved.