Belmont Municipal Code Art. V Public Art Requirements for Private Development

This Article may be referred to as the "Public Art Ordinance."

(Ord. No. 2020-1155, § 2, 12-8-20)

As used in this Article, the following terms have the meanings set forth below.

"Affordable housing" means housing that is restricted to occupancy at an affordable rent or an affordable housing cost to moderate-income households, low-income households, or very low-income households. The terms "affordable rent" and "affordable housing cost" are as defined in Health & Safety Code Sections 50053 and 50052.5 and their implementing regulations.

"Artist" means an individual generally recognized by critics and peers as a professional practitioner of the visual, performing, or literary arts, as judged by the quality of that professional practitioner's body of work, educational background, experience, public performances, past public commissions, sale of works, exhibition record, publications, and production of art work.

"Building development costs" means those construction costs as declared on building permit applications, and as accepted by the building official. Building permit applications include building, plumbing, mechanical and electrical permit applications for the project.

"Capital facility" means any building or structure that serves a particular purpose.

"Capital improvement" means any public project construction by the city to construct or remodel a city-owned, leased or controlled building, decorative or commemorative structure, park, street, sidewalk, parking facility or utility or any portion thereof, with the city limits.

"City-owned arts facility" means any city-owned capital facility primarily devoted to visual or performing arts, including performing arts centers, museums, cinemas, galleries, music venues, workshop and rehearsal spaces, and theaters.

"Developer" means any person that undertakes any construction within the city subject to the requirements in this article. Developer does not include the City of Belmont or other public agency.

"Floor area" means gross floor area as defined by the Belmont Zoning Ordinance except for purposes of this article floor area includes parking structures wherever located.

"Freely accessible" means the artwork is accessible to the public for viewing, in its entirety and in a direct line of sight without hindrances or visual obstacles, during regular business hours consistent with the operation and use of the premises. Nothing in this definition or article is intended to require access by any member of the public to any area not otherwise accessible to the public under normal operation and use of the premises.

"Maintenance" means the preservation of the public art, and where applicable of the lighting and surrounding landscaping, in good condition to the satisfaction of the city and protection of the artwork against physical defacement, mutilation or alteration.

"Public Art Advisory Committee" means the body designated by the city council to review and render a recommendation related to an alternative method of complying with this article.

"Public Art" means an artwork that is an original work in a space freely accessible to the public that includes but are not limited to paintings, mural decorations, inscriptions, stained glass, fiber work, statues, reliefs or other sculpture, monuments, fountains, arches, or other structures intended for ornament or commemoration, carvings, frescoes, mosaics, mobiles, photographs, drawings, collages, prints, or crafts both decorative and utilitarian in clay, fiber, wood, metal, glass, plastics and other materials.

(Ord. No. 2020-1155, § 2, 12-8-20)

The city manager is authorized to adopt rules and regulations to implement this article and to develop all related forms and other materials and take other steps as needed to implement this article, and make such interpretations of this article as he or she may consider necessary to achieve the purposes of this article.

(Ord. No. 2020-1155, § 2, 12-8-20)

(a) Requirement. The following development projects must devote an amount not less than 1% of building development costs for acquisition and installation of public art on the development site:

(1) Non-residential/Mixed Use. Non-residential and mixed use development involving 10,000 square feet or more of new floor area.

(2) Residential. Residential development of 5 or more new dwelling units.

(b) In-Lieu Contribution. At the discretion of the developer, and in lieu of installing public art, an in-lieu contribution may be paid to the city for acquisition and placement of public art in the city.

(c) Alternative Public Location. A developer may propose to satisfy the public art requirement by acquisition and installation of freely accessible art on city property or in the public right-of-way. The proposed must be submitted to the Public Art Advisory Committee for review and recommendation to the city council. The council may approve the alternative location if it finds:

(1) The artwork is acceptable and the alternative proposal will further the purposes of this article, the Public Art Master Plan, the General Plan and any applicable specific plan.

(2) The cost of the alternative proposal will be equal to or greater than the cost of the public art requirement and establish freely accessible public art to an equal or greater extent than installation of the public art on the development site.

(3) Adequate and acceptable provisions have been made for the maintenance and security of the public art.

(4) The developer has agreed to enter into agreements reasonably necessary to memorialize the legal rights and obligations of all parties.

(d) Exclusions. The article does not apply to:

(1) A 100% affordable housing development that is consistent with Government Code Section 65915(b)(1)(G).

(2) Reconstruction of a building damaged by accidental fire or natural disaster.

(Ord. No. 2020-1155, § 2, 12-8-20)

The procedures in Belmont Zoning Ordinance Sections 10.11.13, 10.11.4 and 10.11.5 govern the review of a decision by a subordinate decisionmaker imposing a condition of approval related to a public art requirement. The city council is the reviewing body for all appeals. The city council may grant or denial the appeal in whole or in part and impose reasonable conditions as are necessary to comply with the law.

(Ord. No. 2020-1155, § 2, 12-8-20)

(a) Public art must be designed by either:

(1) One or more independent artists; or

(2) Independent artists working in conjunction with an arts or community organization in good standing and recognized by the IRS as having 501(c)(3) status.

(b) For the purposes of this section, "independent artist" does not include members of the developer's firm or of an architectural, engineering, design, or landscaping firm retained for the design and construction of other portions of the development project.

(Ord. No. 2020-1155, § 2, 12-8-20)

(a) Before Building Permit. At the time of filing the first building permit application for a project subject to this article, the developer must demonstrate compliance with this article to the building official by one of the following:

(1) Payment of the full amount of the in-lieu fee;

(2) Furnishing written proof of the complete submittal package required by the "Public Art for Private Development Checklist" including budget and artist contract(s) for projects on the development site;

(3) Furnishing written proof of a city council approved alternative and compliance with any pre-building permit conditions of approval including any required agreements.

(b) Before Certificate of Occupancy. Before issuance of a certificate of occupancy, the developer must do the following.

(1) Install the public art unless the city manager has approved some other method of assuring compliance with the installation requirement.

(2) Submit a maintenance plan approved by the city that includes information on materials, parts and fabricator contact information. Funds for maintenance and security of the artwork are not counted toward compliance with the public art contribution requirement.

(3) Record a covenant approved by the city attorney setting forth the developer and owner's obligations under this article with the San Mateo County Recorder, and submit a conformed copy to the city. The covenant must include a financial plan for the maintenance of the artwork, a schedule of future condition checks, and preventative maintenance and restoration to conserve the artwork at an appropriate level.

(4) Install a plaque adjacent to the public art measuring no less than 8" x 8" or a proportionate size.

(5) Obtain written approval of insurance coverage from the city's risk manager.

(c) On-going Obligations. After the public art is installed, the developer and owner must comply with the following. Successors in interest assume these obligations.

(1) Secure and maintain the public art in proper condition on an ongoing basis.

(2) Maintain adequate insurance to cover the costs of the repair or replacement due to damage or theft.

(3) Repair or replace damaged or stolen public art.

(4) Not remove, relocate, change, alter, modify, or allow to be defaced, the public art or portion thereof without the express consent of the city.

(d) Sale. Public art on private property may not be sold or transferred separately from the development project unless authorized by the city council and agreed to by the city in writing.

(e) Inspection. The city may inspect public art to ensure it is being maintained as required by this article and may require demonstration of insurance compliance from time to time.

(f) Alternative compliance. The city council may modify the requirements of this section when approving an alternative method of compliance.

(Ord. No. 2020-1155, § 2, 12-8-20)

Unless an artwork poses imminent danger to life or property, no person may destroy, permanently remove, relocate, change, alter, modify, or allow to be defaced, any artwork or portion thereof without the express consent of the city.

(Ord. No. 2020-1155, § 2, 12-8-20)