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HomeMy WebLinkAboutO-2019-025 Text Amendment Creating Article 811 Public Art Program Second Reading (Amended 12-10-19)ORDINANCE NO.2019-025 SECOND READING AMENDED 12-10-2019 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, TO AMEND CHAPTER 28, OF THE "LAND DEVELOPMENT CODE," OF THE CITY'S CODE OF ORDINANCES BY AMENDING PART 8 "TECHNICAL APPENDIX" BY CREATING AND ESTABLISHING ARTICLE 811 "PUBLIC ART PROGRAM," CREATING PUBLIC ART PROGRAM REQUIREMENTS FOR NEW DEVELOPMENT AND REDEVELOPMENT IN NON-RESIDENTIAL, MIXED -USE, AND MULTI -FAMILY ZONING DISTRICTS; PROVIDING FOR GENERAL PROVISIONS FOR PUBLIC ART PROGRAM ORGANIZATION, OPERATION AND IMPLEMENTATION; PROVIDING FOR A PUBLIC ART FEE FOR THE CREATION, ACQUISITION AND INSTALLATION OF PUBLIC ART IN THE CITY; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS; PROVIDING FOR INCLUSION IN THE CODE; AND FURTHER PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Article VIII, Section 2 of the Florida Constitution, and Chapter 166, Florida Statutes, provide municipalities the authority to exercise any power for municipal purposes, except where prohibited by law, and to adopt ordinances in furtherance of such authority; and WHEREAS, Objective V of the Future Land Use Element of the City of Dania Beach Comprehensive Plan provides that the City of Dania Beach will maintain land development regulations and zoning regulations to implement the City's Comprehensive Plan; and WHEREAS, the City Commission of the City of Dania Beach ("City Commission") finds it periodically necessary to amend its Code of Ordinances and Land Development Code ("Code") in order to update regulations and procedures to implement municipal goals and objectives; and WHEREAS, various local governments throughout Florida have implemented public art programs committing to the placement of public art in urban environments; and WHEREAS, the City Commission recognizes that a superior and diverse aesthetic character of a City's built environment is vital to the quality of the life of its citizens and to the economic success of its businesses, creates an attraction for visitors, and will assist the City to fulfill its mission to make Dania Beach one of the premier Cities in Florida in which to live, work, and raise a family; and WHEREAS, a public art program would contribute to the aesthetic character of the built environment and the cultural enrichment of the community; and WHEREAS, a public art program would create a stimulating cultural environment that reflects and enhances the City's heritage, diversity, and character through public artworks integrated in the architecture, infrastructure and landscape; and WHEREAS, public and private development shall contribute to a public art program to enhance and maintain the City's aesthetic character; and WHEREAS, in Metromedia, Inc. v. San Diego, 453 U.S. 490 (1980), the U.S. Supreme Court previously held that land development regulations which require development to meet aesthetic conditions have been generally found to be supported by a legitimate public purpose; and WHEREAS, in Ehrlich v. City of Culver City, 911 P.2d 429 (Cal. 1996), the California Supreme Court held that an art fee on private development is a legitimate aesthetic regulation which does not require the same level of legal scrutiny as an impact fee; and WHEREAS, the City Commission desires to establish Article 811 of Chapter 28, entitled "Public Art Program" to enhance the quality of life through artistic opportunities and to create a cultural legacy for future generations through the collection and exhibition of high -quality art pieces that reflect diverse styles, chronicling history through the collection of artifacts, documents and memorabilia that will acknowledge the past and create programs and activities that will further these goals; and WHEREAS, the Public Art requirements found in this Article are design standards based on the aesthetic needs of the community and are not intended to be either an impact fee or a tax; and; WHEREAS, City staff recommends approval of the proposed changes; and WHEREAS, the Planning and Zoning Board, sitting as the City's Local Planning Agency, has reviewed this Ordinance, and has determined that it is consistent with the City's Comprehensive Plan; and 2 ORDINANCE #2019-025 SECOND READING AMENDED 12-10-2019 WHEREAS, pursuant to Section 166.041 (3)(a), Florida Statutes, notice has been given by publication in a paper of general circulation in the City, notifying the public of this proposed Ordinance and of the time and dates of the public hearings; and WHEREAS, two (2) public hearings were held before the City Commission pursuant to the published notice described above; and WHEREAS, the City Commission finds that adoption of this Ordinance through its police powers will protect the public health, safety, and welfare of the residents of the City, and furthers the purpose, goals, objectives, and policies of the City's Comprehensive Plan; NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the preceding "Whereas" clauses are ratified and incorporated as a record of the legislative intent of this Ordinance. Section 2. That Article 811, entitled "Public Art Program" of Chapter 28, "Land Development Code" of the City Code of Ordinances is created to read as follows: ARTICLE 811. — Public Art Program Sec. 811-10. - Intent and purpose. (a) This article shall be known and cited as the "Public Art Program." (b) It is the intent and purpose of the article to further the commitment of the City of Dania Beach to the aesthetic enrichment of the community through the creation and display of works of art and artifacts so that citizens and visitors to the City of Dania Beach are afforded an opportunity to enjoy and appreciate works of art. The requirements of this article shall be construed to promote the aesthetic values of the entire community and to encourage the preservation and protection of works of art. The public art requirements found in this article are development standards based upon the aesthetic needs of the community and are not intended to be either an impact fee or a tax. (c) It is the intent and purpose of this article to promote the general welfare by encouraging pride in the community, increasing property values, enhancing the quality of life through artistic opportunities, uniting the community through shared cultural experiences, and creating a cultural and historical legacy for future generations through the collection and exhibition of high -quality art that reflects diverse styles, chronicling history through the collection of artifacts, documents and memorabilia that will acknowledge the past and create programs and activities that will further these goals. 3 ORDINANCE #2019-025 SECOND READING AMENDED 12-10-2019 Sec. 811-20. - Definitions. For the purposes of this section, the following words and phrases shall have the following meanings: Artist means a practitioner in the visual arts, generally recognized by critics and peers as a professional of serious intent and ability. Indications of a person's status as an artist include, but are not limited to, income realized through the sole commission of art, frequent or consistent art exhibitions, placement of art in public institutions or museums, receipt of honors and awards, and training in the arts. Art means tangible creations by artists exhibiting the highest quality of skill and aesthetic principles and includes all forms of the visual arts conceived in any medium, material, or combination thereof, including, but not limited to, paintings, sculptures, engravings, carvings, frescos, stained glass, mosaics, mobiles, tapestries, murals, photographs, video projections, digital images, bas-relief, high relief, fountains, kinetics, collages, drawings, monuments erected to commemorate a person or an event, functional furnishings, such as artist designed seating, lighting, and clocks. The following shall not be considered as art for purposes of this chapter: (a) Reproductions or unlimited copies of original art. (b) Art objects which are mass produced. (c) Works that are decorative, ornamental, or functional elements of the architecture or landscape design, except when commissioned from an artist as an integral aspect of a structure or site. Building means any structure that encloses space and is used or built for the shelter or enclosure of persons, businesses, or property. Development project means any development, including remodeling, construction, or redevelopment, which requires a building permit or permits as described on the precise plan submitted for approval to the City. For purposes of this article, development projects shall also include all new construction and tenant improvements for commercial, industrial, multi -family, institutional and mixed -use development. Durable means lasting, enduring and highly resistant to deterioration due to weather or the passage of time. Developer means the owner, including its successor and assigns, of the subject development proj ect. Project cost means the total cost of the improvements, excluding land costs, approved for a development project, as approved for the building permit(s) for the subject improvements. Creative Arts Council Advisory Board ("CACAB'), or other body as approved by the City Commission, means an entity appointed by the City Commission to help administer the public art program and make recommendations to the City Commission regarding acquisition of public art to fulfill the requirements of this article. 4 ORDINANCE #2019-025 SECOND READING AMENDED 12-10-2019 Public art fund ("the fund') means a separate, interest bearing set of accounts set up by the City to receive monies for the public art program. Public art program guidelines shall mean a set of standards, criteria and policies related to the acquisition and installation of public art as defined in the public art master plan, and which shall be adopted by the City Commission and recommended by the CACAB, or other body as appointed by the City Commission. The guidelines shall govern the standards and process by which the City Commission shall approve the acquisition and installation of public art to fulfill the requirements of this article. Public art master plan shall mean a plan adopted by the City Commission, pursuant to a recommendation by the CACAB, or other body as appointed by the City Commission, which shall identify locations for public art and establish a priority order to the City Commission, and which shall be amended from time to time, to ensure a coherent program for acquisition of public art, and program implementation guidelines. Public place means any exterior area on public or private property within the City which is easily accessible or clearly visible to the general public from adjacent public property such as a street or other public thoroughfare or sidewalk. Sec. 811-30. — Master Art Plan and implementation guidelines. (a) The City Commission shall adopt a public art master plan and program guidelines. The public art master plan and program guidelines shall be reviewed and recommended by the CACAB, or other body as appointed by the City Commission and shall be adopted by resolution of the City Commission. Amendments to the public art master plan and program guidelines shall be reviewed and adopted in the same manner as the initial public art master plan and program guidelines. (b) The City Commission shall make final decisions for all public art acquisitions in accordance with this article and the public art master plan and implementation guidelines. The City Commission shall oversee the public education, and curatorial aspects of the program. The City Commission shall have authorization for each acquisition. Sec. 811-40. - Art and artist selection criteria; public art program guidelines. The City Commission shall establish procedures and selection criteria for selection and acquisition of art to be purchased from the resources of the public art fund in accordance with the criteria and standards set forth in the adopted public art program guidelines, as may be amended from time to time. The City Manager and City Attorney will negotiate and execute appropriate contracts necessary for the acquisition of public art. Funds may be aggregated to acquire public art. Sec. 811-50. - Application procedures for placement of art on private property. An application for placement of art on private property shall be submitted to the Community Development Director or designee and shall include: 5 ORDINANCE #2019-025 SECOND READING AMENDED 12-10-2019 (a) Preliminary sketches, photographs or other documentation of sufficient descriptive clarity to indicate the nature of the proposed art; (b) An appraisal or other evidence of the value of the proposed art including acquisition and installation costs (to establish the value of art submitted to comply with this program's requirements, the City may contract with an independent art appraiser to provide a written appraisal of the art. Such appraisal shall either be funded from the public art fund or by the developer as part of the overall art contribution); (c) Preliminary plans containing such detailed information as may be required by the City to adequately evaluate the location of the art and its compatibility with the proposed development project and/or with the character of adjacent developed parcels and the existing neighborhood; (d) A narrative statement to be submitted to the City to demonstrate that the art will be displayed in a public place; and (e) A statement indicating the property owner's willingness to maintain the art in compliance with all applicable City Codes. Sec. 811-60. - Applicability. (a) All development projects, as defined in Section 811-20 of this article. (b) The City Commission may exempt the following from the public art program: (1) The project consists of the reconstruction of structures which have been damaged by fire, flood, wind, or other natural disaster. (2) Schools. (3) Churches or places of worship. (4) Affordable housing and projects receiving economic development grants or incentives. Sec. 811-70. - Building permits. (a) Prior to issuance of a final building permit, the applicant or developer for projects subject to this article shall be required to comply with one of the following: (1) In -Lieu Public Art Fee. Pay one-half of one percent (0.5%) of the cost of the proposed development project, as an "in lieu" public art fee, with a minimum payment of $5,000 and a maximum payment of $250,000; or (2) Combination of In -Lieu Public Art Fee and Placement of Art on Site. Placement of art on the site of the development project, which shall have a minimum value of one - quarter of one percent (0.25%) of the cost of the proposed development project combined along with a one -quarter of one percent (0.25%) payment of an "in -lieu" public art fee. The owner shall provide documentation to the City that the art fee has been deposited into an escrow account for said purpose prior to the issuance of a building permit. Prior to placement on the development site, the art must be approved 6 ORDINANCE #2019-025 SECOND READING AMENDED 12-10-2019 by the Community Services Director or designee and conform to the adopted public art guidelines. (i) If the art is to be placed on site, the owner shall be given up to nine (9) months after issuance of the building permit to obtain approval of the proposed placement of art from the Community Services Director or designee, unless the Community Services Director or designee grants an extension for good cause as determined in their sole discretion. If no such approval is obtained within the time period, the City shall require transfer of required art fee funds to the fund. (ii) The owner shall be given up to nine (9) months after the issuance of a certificate of occupancy to install the art, as approved by the Community Services Director or designee in accordance with adopted public art program guidelines. The Community Services Director or designee may grant one additional six-month extension for good cause as determined in their sole discretion. If no installation occurs within the required time period, art fee funds shall be transferred from the escrow account to the fund. Sec. 811-80. - Certificates of occupancy. No final approval, such as a final inspection or a certificate of occupancy, for any development project subject to the City's public art program pursuant to section 811-70, shall be issued unless one (1) or more of the following has been achieved: (a) The approved art has been installed in a manner satisfactory to the Community Services Director or designee in compliance with this article. (b) In -lieu art fees have been paid. (c) Financial security, in an amount equal to the acquisition and installation costs of an approved art selection, has been provided to the City in a form approved by the City Attorney. Sec. 811-90. - Creation of public art fund. There is hereby created within the City a set of accounts to be known as the City of Dania Beach Public Art Fund (hereinafter the "fund"). This fund shall be maintained by the City and shall be used solely for the acquisition, installation, improvement, maintenance and insurance of art as follows: (a) All funds received by the City pursuant to public art program or from endowments or gifts to the City designated for the arts shall be placed in the fund. All funds shall be deposited, invested, accounted for and expended as follows: (1) All money received shall be deposited in the fund in a manner to avoid any commingling with other revenues of the City and all funds shall be expended solely for the purposes for which they were collected. Any interest income earned by the money in the fund shall be expended only for the purpose for which the money was originally collected. 7 ORDINANCE #2019-025 SECOND READING AMENDED 12-10-2019 (2) The fund shall be used solely for expenses associated with the selection, commissioning, acquisition, transportation, maintenance, public appraisal, education, promotion, administration, removal and insurance of the art. Sec. 811-100. - Art provided in lieu of a public art fee. Art that is placed on private property in lieu of a public art fee must qualify as art under this article and the public art master plan and public art guidelines, as may be amended from time to time. Public art shall be operated and maintained at all times in substantial conformity with this article, the public art master plan and public art guidelines, and the terms of the approval of the art by the Community Services Director or designee. Sec. 811-110. - Ownership of art. (a) Ownership of all art acquired on behalf of the City pursuant to the requirements of this article shall be vested in the City, which shall retain title to each work of art. (b) All works of art acquired on behalf of the City pursuant to the requirements of this article shall be donated and title shall be transferred pursuant to a standard City public art contract reviewed and approved as to form by the City Attorney. (c) Ownership of all art incorporated into development projects shall be vested in the property owner who shall retain title to the art. Property owners retaining title to the subject art shall provide proof of insurance in the amount of the appraised value of the art. If the property is sold, the seller shall either include restrictions in the deed that require maintenance and insurance of the art and prevent its removal from the property, or remove the art and make a contribution to the fund in an amount equal to the amount of the in -lieu public art fee which would have initially been required based on the project cost. If the title is passed to a subsequent owner and, as a result, a deed restriction exists as to the art, the subsequent owner shall maintain the art in accordance with the deed restriction, applicable law and other established guidelines. The art shall not be altered, modified, relocated or removed other than as provided herein without the prior approval of the City Commission. (d) Property owners retaining title to the subject art will be required to maintain the art in good condition in the approved location, as required by law or other applicable guidelines including but not limited to normal code enforcement rules, to ensure that proper maintenance is provided. Sec. 811-120. - Effective Date. All provisions of this Ordinance will be in effect upon final adoption of this Ordinance. All completed and submitted building permit applications for development projects that have been accepted by the Community Development Department within 60 days of the final adoption of this Ordinance will be exempt from the requirements of this Ordinance. 8 ORDINANCE #2019-025 SECOND READING AMENDED 12-10-2019 Section 3. That if any section, clause, sentence or phrase of this Ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect the validity of the remaining portions of this Ordinance. Section 4. That all ordinances or parts of ordinances in conflict with the provisions of this Ordinance are repealed to such extent of the conflict. Section 5. That this Ordinance shall be codified in accordance with the foregoing. It is the intention of the City Commission that the provisions of this Ordinance shall become and be made a part of the City of Dania Beach Code of Ordinances; and that the sections of this Ordinance may be renumbered or re -lettered and the word "ordinance" may be changed to "section," "article" or such other appropriate word or phrase in order to accomplish such intentions. Section 6. That this Ordinance shall take full effect immediately upon its passage and adoption. PASSED on first reading on November 12, 2019. PASSED AND ADOPTED on second reading on December 10, 2019. ATTEST: THOMAS SCHNEIDER, CMC CITY CLERK T YMA �et15HE�y APPROVED AS TO FORM AND CORRECTNESS: I\ r \ i THOMA J. A S RO CITY ATTORNEY 9 ORDINANCE #2019-025 SECOND READING AMENDED 12-10-2019