In October of 2014, East Lansing’s Ordinance 1339, better known as “the Percent for Art Ordinance,” passed through a City Council vote of 3-1. Besides allocating some public money each year to public art projects, this relatively unusual local law commands private developers who redevelop properties in East Lansing to devote one percent of their total project costs to public-facing art.
Under the law, developers have three options: (1) install new public-facing art onsite; (2) donate art to the City of East Lansing; or (3) donate funds to the City’s Public Art Fund. Failure to complete this requirement can mean a developer is denied final approval of a project by City inspectors.
The total “art charge” is capped at $25,000 for each project, and not every project is subject to this law. Development projects exempted include projects with a total cost under $500,000, residential projects with fewer than four units, renovation projects that come in under $2.5 million, and projects whose fulfillment of the ordinance would be contrary to other laws.
Meanwhile, the law also requires that there “shall be appropriated [to the Public Art Fund] each year by the city council an amount equal to one percent of the cost to the City’s general fund of all public facilities or city capital improvement projects unless public art is not legally permissible due to the constraints imposed by the funding mechanism.” This money is drawn from existing tax revenues and then specifically diverted to the Public Art Fund.
Seven years into this law, what do we find?
It wasn’t until two years after the ordinance was first adopted in 2014 that East Lansing first saw this ordinance’s aim fulfilled by a private developer. On the Valley Court side of the new building called “300 Grand” (at 300 W. Grand River), an abstract design was embedded into the facade.
Although some people were initially concerned that this ordinance might disincentivize future development in East Lansing, that does not seem to have been the case, and all in all, this ordinance has added public art to widespread parts of East Lansing.
A technicolor Virgin Mary statue, for example, can be found at a relatively new geriatric psychiatric inpatient facility on the City’s northside, and another colorful sculpture stands near the Burcham solar array, near Park Lake Road.
Since the enactment of the law, developers of eight projects have chosen to install art onsite. Four of these eight installed sculptures onsite, two installed murals, one (for the Bailey Community Center conversion) spent their funds on theater improvements with the Art Commission’s approval, and one spent half of their funds installing a sculpture and the other half donating art to the City.
As a result of Percent for Art, in the median of Grand River Avenue near the Broad Art Museum stands an artwork made of metal leftover from the museum’s construction, in the shape of an unfolded geometric solid. This was the Ordinance 1339 contribution related to the new building at 565 E. Grand River Ave.
Just down the street, the student housing project called The Hub, located at the intersection of Bogue Street and Grand River Avenue, includes two murals along the ground floor’s west and south sides.
As of today, rather than installing art, developers of eleven of the 27 projects that have been required to comply with the ordinance have chosen instead to donate their designated funds. Since the first donation in 2016, $267,500 in cash has been donated to the Public Art Fund by developers under the Percent for Art Ordinance.
Cash donations came, for example, from the developers of the new Costco store, The Quarters student housing complex off Abbot Road, and the Skymint marijuana dispensary on Coolidge Road.
Using the Freedom of Information Act (FOIA), ELi found that, so far, contributions from developers represent about 82% of the funds incoming under this ordinance, while 16% of total contributions (about $52,000 in total) have come from the City’s General Fund. The remaining 2% (about $6,000) of the funds were generated from interest. A total of $325,740 has come into the ordinance’s account to date.
Would this law hold up if challenged in court?
While the fear of stalling redevelopment with the “Percent for Art” requirement seems to have vanished, developers have expressed frustration to ELi over this ordinance. (None have wanted to go on the record for fear of irritating City officials.)
But because there is a cap of $25,000 on the amount the ordinance can command from developers, it seems unlikely the constitutionality of the law will ever be challenged in a courtroom, since litigation costs to a plaintiff would likely far exceed $25,000.
The United States Court of Appeals for the Sixth Circuit, which includes Michigan, dealt with a case that could be seen as similar: Canton Township, Michigan, had an “ordinance requiring property owners to replace trees that they remove from their property or pay into a tree fund,” according to ABA Journal. The court found that “the ordinance imposes an unconstitutional condition on a permit to make productive use of property,” reasoning that might be used to make a case against East Lansing’s Ordinance 1339.
Ordinance 1339 was written to avoid being strictly considered a tax on big commercial redevelopment, since the City is also required to make some contributions under the law. If Percent for Art was funded solely by the private developers required to participate, it would likely be found to violate Michigan state law, which strictly limits local governments’ ability to levy new taxes. (That’s the crux of the argument in the class action suit against the City of East Lansing over the BWL franchise fee.)
How does the requirement work in practice?
While developers subject to the law have three options to choose from in terms of their obligation under the Percent for Art Ordinance, it appears that the timeline in which they can fulfill their obligation at least partly is in the hands of the Arts Commission.
If a developer chooses to install art on their property or to donate artwork to the City to be installed on public land or in a public building, the Arts Commission must approve of the artwork. And that often takes multiple meetings and rounds of revision.
When dealing with a proposed “Percent for Art” installation on private property, first, the Commission will look to ensure that the artwork being proposed would be installed in outdoor areas that are highly visible from public areas, inside highly traveled public or private areas that must be accessible to the general public, or, if applied on an exterior or interior wall, visible from somewhere that is highly trafficked by the public.
In the ordinance, artwork is not defined by artistic merit or other subjective measures, but instead is approved as “art” as long as it meets the requirement of being considered a sculpture, painting, mosaic, mixed media art, performing art, digital art, or a work of architecture.
If a developer chooses to fulfill the obligation with “a work of architecture,” the Arts Commission will judge the piece to ensure it has “extremely high artistic merit and would make a substantial cultural contribution to the city,” amongst other criteria determined by the Arts Commission.
Next, a developer must ensure that the expenditures and site plan meet the standards of approval. The criteria for this takes up approximately 12 pages of the 19 page ordinance.
After developers have identified and submitted plans for art onsite, it appears the process they enter into can take considerably longer than if they had chosen to simply donate funds, according to information obtained under FOIA.
From the eleven projects tracked in the FOIA response that ELi received from the City, it appears it takes a developer on average 11.5 months longer to make it through the Percent for Art process with the Arts Commission when they choose to install art on the site of their development compared to when they donate money or art.
The significance of this extended timeline for developers is crucial since their final building approval, called a Certificate of Occupancy (CO), may “hinge on art,” in the words of the Art Commission’s tracking spreadsheet. The City may grant a Temporary Certificate of Occupancy (TCO) while a developer awaits the completion and final approval of their art project.
For those developers that choose to donate money, the Arts Commission must use the funds to establish new art around town. However, we have not seen new art coming via the Arts Commission at the same rate that private developers are installing their art onsite.
Again, we have seen eight new installations from private developers since this ordinance took effect, but while eleven developers have donated funds, only a few projects have come from the Arts Commission’s use of those funds. One example is the “Lemongrass” sculpture in Valley Court Park, a project that used $50,000 of donated funds.
Recently, when the Arts Commission did allocate a portion of the funds to a new project, it did not come without scrutiny or controversy: A commissioner resigned after the Arts Commission awarded a white artist a $29,900 contract to paint a mural representing African Americans on the side of the East Lansing Public Library. In speaking about that controversy, Mayor Jessy Gregg said she wanted to see the accumulated funds turned into more art without long delays.
Seven redevelopment projects (of the 27 subject to the law) are yet to be completed. Four of those have art proposals under review by the Arts Commission, while the other three are approved and awaiting installation.
Alice Dreger contributed reporting.
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