Caption here
The HERETHERE sculpture, by Steve Gillman and Katherine Keefer: public art that was installed in South Berkeley in 2005. Photo: George Kelly

The city of Berkeley is crafting a new law to require private developers of many buildings to spend 1% of their construction costs on public art.

Under a recommendation put forth by Mayor Tom Bates and approved in concept by the Berkeley City Council at its March 17 meeting, the “private percent for public art” legislation would apply to all new commercial and industrial buildings, and residential buildings with at least five units, except for projects in downtown Berkeley. The one-time fee would pay for publicly accessible art on-site, or the developer could instead pay into a new city pot for public art.

At the same meeting, council expanded the city’s definition of art to include installations, performance and social practice works, and other types of original displays. 

The effort to create the legislation is a response to the proliferation of development in Berkeley, said members of the city’s Civic Arts Commission policy committee at a meeting Monday.

“This would be a fund that could capture this unprecedented growth that we’re seeing,” said Commissioner Jennifer Lovvorn. “And we’re actually a little late to the game because the building boom has already started.”

The proposal would give the arts commission four months to consider art-related plans for new projects that are submitted to the city. If no agreement could be reached, the developer would have to pay the fee into a new “dedicated art fund” and let the city decide how to use the money.

The commissioners said they aim to finish drafting the ordinance — which needs to be approved by the Civic Arts and Planning commissions before it returns to council — in June.

Berkeley would join many of its neighbors in adopting a private percent-for-art law. Oakland, Emeryville, El Cerrito and Palo Alto all require private developers to contribute a portion of expenses to the arts.

“It’s a pretty normal type of requirement,” Lovvorn said. “We’re not breaking new ground here.”

City already has public percent-per-art program

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One of two public art installations created by Scott Donahue on the I-80 bike and pedestrian bridge. Photo: City of Berkeley

Berkeley has had a similar 1.5% art requirement tied to public improvements and bond measures since 1999. That resolution built on an earlier voter initiative to fund downtown improvements, as well as a 1985 ordinance to establish the process for selection of public art projects. As part of an annual process, eligible money goes into an arts fund, which is overseen by the city’s Public Art Committee.

Completed projects in Berkeley as a result of that process include the mural in honor of Maudelle Shirek in Old City Hall ($38,000); sculptures on the I-80 bicycle and pedestrian bridge ($113,000); and the HERETHERE sculptures in South Berkeley on Martin Luther King Jr. Way ($50,000). In addition, all the new branch library projects have incorporated public art elements ($159,000).

But there has also been some disagreement over the years about which projects fall under the public percent-for-art policy, said Civic Arts Commissioner Kim Anno. “The money doesn’t trickle out as much as we’d like,” she said.

Berkeley’s new animal shelter, for example — which cost $12.4 million to build — did not follow that process, citing budget constraints.

Downtown not part of the new proposal, for now

At Monday’s meeting, commissioners said they were unhappy that downtown development had been exempted from the council’s March 17 recommendation. (Bates’ original item included the downtown.) Commissioners told the small audience of mostly artists that they are debating whether to push back now or address downtown development after the initial legislation passes.

Buildings in the "C-DMU" would not have a private-percent-for-art requirement under the new proposal. Click the image to view a much larger city zoning map.
Buildings in the “C-DMU” would not have a private-percent-for-art requirement under the new proposal. Click the image to view a much larger city zoning map.

Buildings within the downtown mixed-use, or C-DMU, district “have extraordinary requirements already,” Bates said this week, so council excluded them from the proposal. He pointed to public transit benefits they have to provide as per the Downtown Area Plan as just one example. Other requirements include the construction of affordable housing units on site (about 10% of the units), or payment into a city fund used to build affordable housing elsewhere; various “green requirements” such as car-share spots and electric vehicle charging stations, and building to a LEED Gold standard or its equivalent; and paying fees related to open space and street improvements.

At the March meeting, council also directed the city Planning Commission to recommend an appropriate action regarding downtown development and the arts.

Monday, Civic Arts commissioners discussed potential alternatives to harness some of the downtown development money for the arts. One possibility is a smaller across-the-board in-lieu fee for all new development, which the city could model after a policy in Pasadena, commissioners said.

Or art could be included in the as-yet-undefined “community benefits” requirement attached to tall downtown development. Under the Downtown Area Plan, buildings over 75 feet are required to contribute “significant community benefits,” but up to this point the broad guidelines have proven difficult for developers, the community and the city’s zoning board to navigate. As a result, council plans to discuss the community benefits requirement at a special meeting May 5.

Seven buildings taller than 75 feet are allowed downtown, including two from the University of California, which is not bound by law to follow the city’s rules. Four are already in the pipeline. A representative for one of those projects, a 120-foot-tall condo proposal at 1951-1975 Shattuck Ave., has already said a percent-for-art fee is part that plan.

Many people have said they want the community benefits money to be used for affordable housing.

“That is the number one issue in the city,” Bates said. But a portion dedicated to art could also be possible, he added.

Lovvorn said Monday that buildings downtown attract tenants by advertising their proximity to theaters and the future Berkeley Art Museum, set to open at its new home at Center and Oxford streets in January.

“If they’re touting those amenities they should be investing in those amenities,” she said. “It totally makes sense in the same way that a hotel tax makes sense. There is actually cultural tourism, and shouldn’t that tourism generate some money that goes back and helps support arts and culture?”

The city does not have an estimate for the amount of money the private percent-for-art program could generate.

“It could be substantial,” said Bates, who could not recall any prior attempts to establish a private percent-for-art policy in Berkeley.

The mayor said he is encouraging staff to move quickly with the proposal — before any more new buildings slip from its grasp.

“There are all kinds of projects coming forward in the next few months,” Bates said. “It’s important to get this on the books as soon as possible.”

Read more about real estate projects and public art in Berkeley.

Berkeley officials seek feedback on ‘community benefits’ (04.14.15)
Berkeley council on homelessness, sewer fees, vaccine exemptions, crude oil, more (03.17.15)
Mayor paints general picture of progress for Berkeley (02.13.15)
‘Explosive’ downtown Berkeley housing boom under way (01.14.14)
Public art a casualty at Berkeley animal shelter (08.22.13)
1,000 new apartments planned for downtown Berkeley (02.07.13)

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Natalie Orenstein reports on housing and homelessness for The Oaklandside. Natalie was a Berkeleyside staff reporter from early 2017 to May 2020. She had previously contributed to the site since 2012,...