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Miami’s proposed public art program would unfairly tax private developers, critics say

At the top of the scale, projects with construction costs of $15M or more would have to place art representing 1.25% of that cost or pay a 1% tax
By Francisco Alvarado | July 21, 2017 01:00PM

Art in Public Places in Miami

The city of Miami is close to passing a new rule that would require most developers to incorporate public art in their private projects or pay a fee that will go into a fund for public art. 

However, critics in Miami’s real estate and art scene claim the proposal is still rife with problems and could deter developers and property owners from working with young emerging artists from Miami.

“The city commission had asked staff to work out concerns [raised by the development industry], and not bring this back until there was a consensus,” said Steven Wernick, a land use lawyer and partner at Akerman. “I’ve expressed concerns to the planning department, the planning and zoning appeals board and the city commission about the damage to the good relationship between the real estate community and the art community this could cause.”

Efren Nuñez, Miami’s acting historic preservation officer who was heavily involved in drafting the public art legislation, refuted Wernick’s criticisms. “On the contrary, our goal is to grow the local artist community,” Nuñez said. “Where you now only have a few developers interested in public art, now every development over $3 million will have to create public art.”

Miami’s Planning and Zoning Appeals Board unanimously voted to recommend approval of the legislation and the city commission passed it on first reading in late June. The proposal is scheduled for a second and final reading in September.

The city began retooling its Art in Public Places program in 2014 to bring it into compliance with Miami-Dade County’s program. Other cities such as Doral, Miami Beach and Coral Gables already have programs in place that mandate public art on private properties. In lieu of placing the art, developers are also given the option of paying a fee that is used to buy art that is placed on government owned properties and public right of ways.

In January, the Miami City Commission adopted legislation requiring public art be placed on city-owned sites, but instructed the planning and zoning department to tweak the legislation to mollify critics like Wernick, as well as representatives from the Builders Association of South Florida and members of the Wynwood Business Improvement District.

Originally, staff proposed that any private development with a construction cost of at least $1 million and at least seven units be required to have public art with a minimum value of 1.25 percent of the project’s total cost.

The latest version of the legislation would apply to projects with a construction cost of $3 million or more. If the project’s budget is between $3 million and $5 million, a developer would be required to install public art that is 0.5 percent of the total construction cost or pay a fee of 0.25 percent of the construction cost. For projects that cost between $5 million and $10 million, the art installation would have to represent 0.75 percent of the construction cost or pay a fee representing 0.5 percent of the construction cost. For projects of $10 million to $15 million, the value of the art and contributions to the public art fund would be 1 percent of the construction cost or a 0.75 percent fee.

Projects that are more than $15 million would be required to place art that represents 1.25 percent of the construction cost or developers would have to pay a 1 percent tax. In addition, developers that renovate interiors or remodel an existing property at a cost of $3 million or more would also have to participate in the public art program.

Opponents claim the problem with the legislation lies with a requirement for an appraisal of the public art. According to language in the proposed ordinance, the city may contract with an independent art appraiser to provide a written appraisal. That means a developer runs the risk of having a public art installation rejected by the city’s new Art in Public Places Board.

Books Bischof, a co-founder for Primary Projects, an organization that recruits street artists to paint murals in Wynwood during Art Basel, said the legislation undercuts Miami’s art community by encouraging developers to direct their budgets away from art installations. “From the perspective of local artists, the current legislation is not beneficial to the development of our art community,” Bischof said.  “The city’s definition of “Artist” excludes a plethora of creatives and positions younger artists ineligible to participate in city’s program.”

Bischof argued the proposed program would funnel fees into “a bottomless city administration account” that may not lead to the acquisition of a single work of art for years to come. “Not only is this unfair to young Miami artists, but it stifles our community’s pool of talent with this unnecessary glass ceiling,” he said. “This legislation should be an incentive- based program that rewards developers for working with local arts organizations and artists.”

Board members with the Wynwood Business Improvement District have also criticized the proposal because the trendy, arts-driven neighborhood has already encouraged public art on buildings without government interference. The legislation does carve out Wynwood, allowing the BID and other neighborhood stakeholders to develop their own sets of standards and regulations for public art.

But, there’s a catch. Wynwood public art installations would still be subject to review by the new Art in Public Places Board and developers in the neighborhood would have to participate in the city’s public art program until Wynwood adopts its own rules.

David Polinsky, a developer who sits on the Wynwood BID board, said the neighborhood has already exceeded all the goals outlined in the proposed legislation. “The top level concern is that when you read the legislation, none or very few of the artists engaged to do our building murals would meet the definition of a fine artist,” Polinsky said. “Many street artists have opted out of the gallery scene and are not represented in galleries. So it is almost impossible to appraise their work.”

Furthermore, murals painted on Wynwood buildings are not permanent works of art and don’t require a lot of money to put up. “The art wouldn’t be worth more than the paint used to put it on  the walls,” Polinsky said, adding that the Wynwood BID has not taken an official position on the public art legislation.

However, Nuñez downplayed the criticisms by noting that the city has received letters of support from more than a dozen organizations, including the Perez Art Museum Miami, The Underline, the MiMo Biscayne Association. He also added that the legislation does not discriminate against Miami street artists.

“This has been a transparent process,” Nuñez said. “I don’t know where all this confusion is coming from.”