What is Art? Jollyman Park Playground Remodel Ignites Debate

Background: The Jollyman Park All-Inclusive Playground (AIPG) project is expected to be completed by June 2024, and is fully funded. Via the city’s website, residents can expect to enjoy “supportive play theories and practices to appeal to people of all ages and abilities.” 

Jollyman Park
Jollyman Park Playground 2023, Pre-Renovation

The playground is designed by MIG, a local firm specializing in inclusive play that has also designed imaginative new playgrounds in San Jose’s Children’s Discovery Museum and Emma Prusch Farm Park. The budget for Jollyman Park’s new playground was $4.5M.

Council Decision Sparks Debate
During the May 2
nd City Council meeting, Item 8, the City Council approved moving all $338,146.86 in the Art In-Lieu Fee fund into the Jollyman Park AIPG project fund. This would bring the park’s total budget to $4.9M.

The decision fueled questions over both the cost and definition of “artwork” under our Municipal Code 19.148.030 and .040. The proposal would have designated playground elements like viewing binoculars, a scavenger hunt, or multilingual tactile signs as art. Several residents raised doubts over whether these elements are unique, original, and promote artists.

City Responds With Reduced Art Proposal
The staff presented a modified proposal for Jollyman Park artwork to the Arts and Culture Commission on May 22nd. It consisted of 3 pieces, eliminating some of the more controversial items previously proposed at the City Council meeting. The commission gave guidance to staff to design the items to allow more simultaneous users, and include artists from the Bay Area if possible.

The staff will return for commission approval when designs are completed and they hope to have remaining funds which could be returned to the Art In-Lieu Fund. In addition, the commission requested that a policy procedure be developed to address the use of these funds as soon as possible.

What is the Art-in-Lieu Fund?

In 2009, the city passed an ordinance that required any large (10,000 sq. ft. or larger) new public or private development or remodel to include artwork on their property.  The intent was to “enhance community character and identity,” provide the public with attractive art and “stimulate opportunities for the arts through cooperative relations between local business and the City.”  If a project, for some reason, cannot provide the artwork, they are required to pay 1.25% of the construction value into the Art In-Lieu Fund. However, this option has been strongly discouraged.  If they do provide the artwork, the minimum artwork value is reduced to 0.9-1.0% of the construction valuation.

Since 2009, there have been many projects required to provide artwork on their properties.  Some of these projects you may be familiar with such as the Apple 2 Headquarters, Main Street, Westport Union, Marina Plaza and Public Storage.  Usually, the artwork appears close to or after project completion.  In fact, the Apple 2 artwork, a sculpture entitled “Mirage” is being installed now in the olive orchard of the Apple 2 Visitors Center (see plans here).  The Target Remodel has yet to install their artwork (see plans here).  

Public Storage is the only project since 2009 to pay the art in-lieu fee rather than provide artwork.  They made their required payment of $338,146.86 about 1.5 years ago.  

The Jollyman Park AIPG artwork proposal originally intended to use the entire $338,146.38 for the following interactive elements:

  • Decorative sun kaleidoscope feature

  • Interactive Musical Bench

  • Nature-related art, such as a bird-watching scavenger hunt, viewing binoculars, ad colorful peeking windows

  • Multilingual Tactile Sign

  • Stair Mural

Now, the funding will be limited to three pieces of art. Examples of these proposed elements can be seen here.

Issues brought up during the discussion were:

  • All these items must be considered “artwork” under our Municipal Code 19.148.030 and .040. Artwork is supposed to promote artists, be unique and original

  • Distributing the funds across multiple parks or locations was not considered

  • The playground’s total budget will now be nearly $5M


May 2, 2023 City Council Meeting Agenda Item 8:  Staff Report and Attachments


Cupertino Municipal Code Section 19.148:  Required Artwork in Public and Private Developments


This muni code contains the following aspects of the artwork required:

Section 19.148.010  Purpose and Intent

Section 19.148.020  Applicability of Regulations

Section 19.148.030  Permitted Artwork

Section 19.148.040  Ineligible Artwork

Section 19.148.050  Application Procedures for Public Artwork

Section 19.148.060  Design Criteria and Artist Qualifications

Section 19.148.070  Minimum Artwork Value

Section 19.148.080  Maintenance Requirements

Section 19.148.090  In Lieu Payment for Artwork is Discouraged

Apple 2 Headquarts Artwork

Explanation of what the artwork represents


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