ATTACHMENT 2
1 CITY OF BURBANK
Park, Recreation and Community Services Department
STAFF REPORT
DATE: March 19, 2013
TO: Ken Pulskamp, Interim City Manager
FROM: Judie Wilke, Park, Recreation and Community Services Director Amy Albano, City Attorney
SUBJECT: REQUEST TO CONSIDER REVISING THE ART IN PUBLIC PLACES
ORDINANCE ALLOWING DEVELOPERS TO RECOMMEND THAT ALL
OF THEIR 1% OBLIGATION GO TO THE BURBANK ARTS FOR ALL
FOUNDATION – STEP ONE
RECOMMENDATION
It is recommended that City Council not expand the Art in Public Places Ordinance that currently allows a developer to recommend that 50% of their 1% art obligation go to the Burbank Arts for All Foundation (Foundation).
BACKGROUND
The Art in Public Places Ordinance , adopted in 1996, requires that a new development project with a construction budget over $500,000 contribute 1% towards an art installation. The Art in Public Places Ordinance was adopted under the City’s authority to set development standards based on its police power in relationship to the aesthetics of the community. Some of the reasons for adopting the art requirement included humanizing the urban environment, collaboration, improving the overall business climate, increasing the value of developments and promoting cultural tourism. The presence of quality art was intended to bring pride to the City as a whole, and enhance its overall reputation.
Recognizing that an in -place art installation might not be feasible or desired in all locations, the option of paying an in-lieu fee into an Art in Public Places Fund (Public Art Fund) was included in the ordinance. The money in this fund was originally to be “used exclusively for the financing of art projects . . . that will be located at public buildings or on public grounds.” In this way, the developer would still be able to help bring the benefits to the City envisioned by the Art in Public Places ordinance.
On February 19, 2008, City Council approved a z one text amendment expanding the in- lieu fee to include the option of allocating up to 50% of the 1% paid by the developer toward arts related programs, funded through the Burbank Arts for All Foundation
2 (formerly Burbank Arts Education Foundation), a nonprofit California corporation that benefits Burbank Unified School District students.
Since the adoption of the zone text amendment only one developer (Warner Bros.) has elected to contribute half of their art obligation for the Foundation. To date, City Council has approved a total allocation of Public Art Funds in the amount of $33,301.50 to the Foundation.
On September 13, 2011, then Mayor Talamantes requested that staff bring back for Council discussion the Art in Public Places Ordinance to provide developers with an option of allocating 100% of the 1% paid by the developer toward arts related programs, funded through the Burbank Arts for All Foundation.
DISCUSSION
In researching this issue, the City Attorney’s Office has taken a closer look at the overall program given the original purpose of the Art in Public Places ordinance and the enactment of Proposition 26 1, which took effect in January 2012. To date, funds granted under th e art program option have been used for a myriad of projects, ranging from purchasing vocal sheet music, dance videos and new band instruments, setting up an art room, exposing children to sculpture , and musical theater. Unfortunately, when funding general arts programs in schools , the connection between the purpose of the fee and the use to which it is put is los t. While the funds granted to the Foundation may be positively impacting children in schools, the funds d o not improv e the outdoor aesthetics of the city, “humaniz e the urban environment” or necessarily otherwise contribute to the overall enhancement of public life in a more permanent way . The Foundation has previously funded projects that are in direct alignment with the intent of the Art in Public Places ordinance, such as painting murals on school campuses.
Therefore they have expressed the ability and willingness in the future to work within the necessary boundaries.
In giving developers the option to divert up to 50% of their in-lieu fees to the Foundation, the ability of the Public Art Fund to grow and thus be sufficient to provide art for public spaces has already been compromised. Every dollar re -routed to a different purpose equates to fewer dollars available to enhance the aesthetics of the C ity. If additional funds were to be redirected, that reserve could become seriously underfunded, and the ability to maintain our existing art installations, purchase or commission art could be delayed indefinitely. The entire purpose of the fund would be thwarted. Although specific findings are not available to determine the reasoning behind the initial choice to limit the allocation to 50%, it is possible that this very concern was part of the decision - making process.
If the Council wishes to continue to allow a developer to direct 50% of the 1% obligation to the Foundation, then before authorizing any future transfers, Council should, at that
1 Prop 26 amended the State Constitution by defining a “tax” so that local governments may not circumvent the restrictions on increasing taxes by simply defining new or expanded taxes as “fees.” It lists seven exceptions to the definition of a tax. Under Prop 26 any government fee must meet one of the enumerated exceptions or the fee will be considered a tax subject to voter approval.
3 time, be assured that the funds will be used for durable, if not permanent, installations of art or artistically rendered design elements.
FISCAL IMPACT
There would be a negative impact to the Public Art Fund should City Council decide to expand the Art In Public Places Ordinance. Although the impact is unknown at this time, since 2008 $33,301.50 of funds has been redirected from the Public Art Fund to the Foundation.
CONCLUSION
If Council were to allow the full amount of the developer’s fees to be redirected to the Foundation, the overall purpose of the Public Art F und program could be thwarted and over time the Public Art Fund could become seriously underfunded . Therefore, staff does not recommend expanding the option to allocate 100% of developer fees to the Foundation.