NCPA - National Center for Policy Analysis


February 22, 2008

Avondale, Ariz., is the latest municipality to consider acquiring art by plunder rather than purchase.  A proposed ordinance, modeled after laws in other Arizona cities, would require developers to pay one percent of the project construction costs, up to $100,000, into a "public art fund."  Alternatively, the developer can contribute art of commensurate value, says Clint Bolick, the litigation director for the Goldwater Institute's Scharf-Norton Center for Constitutional Litigation.

Art is great. That's why millions of Americans contribute voluntarily to art museums.  But politicians have a better idea: rather than spreading the cost among all and being held politically accountable, they impose the costs on a select few.  Developers rarely complain.  After all, they need the cities' cooperation to receive building permits, explains Bolick.

But the compelled art requirements are legally problematic for three reasons:

  • Arizona statutes strictly limit development impact fees to "necessary" public expenditures required by new development.
  • The U.S. Constitution requires "rough proportionality" between the impact of development and conditions placed upon permits.
  • Compelled speech of any sort is suspect under the First Amendment.

Development should pay its own way, but when taxes go beyond that, we all suffer, says Bolick.  The Goldwater Institute is challenging Mesa's "cultural impact fee," which exceeds legal bounds and inflates the cost of homes at a time when both home builders and buyers are struggling.

Unfortunately, it's all too easy for politicians to dodge limits on their authority by singling out a few to bear a disproportionate financial burden.  This in turn makes legal challenges necessary to curb the voracious government appetite for new revenues, says Bolick.

Source: Clint Bolick, "Arts-Tortion; Public art fund law legally suspect," Goldwater Institute, February 21, 2008.


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