Comm. To Relocate Marilyn v. City of Palm Springs
| Decision Date | 23 February 2023 |
| Docket Number | D080907 |
| Parties | COMMITTEE TO RELOCATE MARILYN, Plaintiff and Appellant, v. CITY OF PALM SPRINGS, Defendant and Respondent; PS RESORTS, Real Party in Interest and Respondent. |
| Court | California Court of Appeals Court of Appeals |
APPEAL from a judgment of the Superior Court of Riverside No CVRI2101435, Ronald Johnson, Judge. Reversed and remanded with instructions.
Chatten-Brown, Carstens &Minteer, Amy C. Minteer Michelle N. Black, and Sunjana Supekar for Plaintiff and Appellant.
Best Best &Krieger, Richard T. Egger, Amy E. Hoyt, and Avi Rutschman for Defendant and Respondent.
Blasdel Guinan Lawyers and Diane C. Blasdel for Real Party in Interest and Respondent.
The City of Palm Springs closed off one of its downtown streets to all vehicular traffic for a period of three years to allow a Palm Springs tourism organization to install and display a large statue of Marilyn Monroe in the middle of the street.
A citizens' group called the Committee to Relocate Marilyn (hereafter, the Committee) filed a petition for writ of administrative mandate challenging the street closure. It alleged the City did not have the statutory authority to close the street under Vehicle Code section 21101, subdivision (e), which permits cities to "[t]emporarily clos[e] a portion of any street for celebrations, parades, local special events, and other purposes" for the safety and protection of persons who use the street during the temporary closure. In the Committee's view, the street closure was impermissible because it was long-term-not temporary. Additionally, the Committee alleged the City erroneously declared the street closure categorically exempt from environmental review under the California Environmental Quality Act (CEQA) (Pub. Resources Code, §§ 21000 et seq.).
The City demurred to the petition for writ of administrative mandate, arguing it had the authority to close the street for three years under Vehicle Code section 21101, subdivision (e), and its local equivalent, Palm Springs Municipal Code section 12.80.010. The City claimed the street closure was temporary, and therefore permissible, because it was not permanent. Further, the City argued the CEQA cause of action was untimely because the City filed a notice of exemption stating the project was categorically exempt from environmental review, thus triggering a 35-day statute of limitations for the filing of any legal challenge to the exemption finding (Pub. Resources Code, § 21167, subd. (d)). According to the City, the Committee did not assert its CEQA claim until after the expiration of the 35-day statute of limitations period. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal in favor of the City.
Contrary to the trial court, we conclude the Committee pleaded allegations sufficient to establish that the City exceeded its authority under Vehicle Code section 21101, subdivision (e), and Palm Springs Municipal Code section 12.80.010. These enactments allow cities to temporarily close portions of streets for short-term events like holiday parades, neighborhood street fairs, and block parties-proceedings that generally last for hours, days, or perhaps as long as a few weeks. They do not vest cities with the expansive power to close public streets-for years on end-so statues or other semi-permanent works of art may be erected in the middle of those streets.
We also conclude the Committee pleaded allegations sufficient to establish the timeliness of its CEQA cause of action. As noted, the City filed a notice of exemption declaring the project categorically exempt from environmental review. However, the notice of exemption stated the public's vehicular access to the downtown street would be vacated as part of the project. But, after the notice of exemption was filed, the City abandoned its plan to vacate vehicular access to the street and elected to close the street instead. Because the City materially changed the project after it filed its notice of exemption, and it did not afford the public an opportunity to consider the revised project or its environmental effects, the notice of exemption did not trigger a 35-day statute of limitations. Instead, the CEQA cause of action was subject to a default statute of limitations of 180 days, measured from the date the Committee knew or should have known about the changed project. Based on our review of the operative pleading, the Committee timely filed its CEQA cause of action within the applicable 180-day statute of limitations period.
In light of these conclusions, we reverse the judgment of dismissal, vacate the demurrer ruling as to the Vehicle Code, Palm Springs Municipal Code, and CEQA causes of action, and instruct the trial court to enter a new order overruling the demurrer as to these three causes of action.
This appeal arises from a judgment entered after the sustaining of a demurrer without leave to amend. Therefore, the following background section is taken from the allegations of the operative first amended petition for writ of administrative mandate and other matters properly subject to judicial notice. (Dudek v. Dudek (2019) 34 Cal.App.5th 154, 160, fn. 4.)
Forever Marilyn is a 26-foot-tall, 34,000-pound statue of the actress Marilyn Monroe, made out of painted aluminum and stainless steel. It portrays Monroe in a famous scene from the 1955 film, "The Seven Year Itch," in which Monroe's white dress is lifted up by a gust of wind from a New York City subway grate. A photograph of Forever Marilyn is set forth as Figure 1 at the end of this judicial opinion.
In May 2012, Forever Marilyn was acquired by PS Resorts, a nonprofit organization that promotes tourism in Palm Springs, where the actress Monroe was reportedly first discovered in 1949. PS Resorts displayed Forever Marilyn to the public on an empty lot in downtown Palm Springs until May 2014. Thereafter, Forever Marilyn was displayed at various other sites in the United States and abroad.
In 2016, the Palm Springs City Council approved a plan to install Forever Marilyn in a new public park in downtown Palm Springs. The park is shaped like a horizontal rectangle and it is bordered to the west by Museum Drive, to the south by Museum Way, and to the east by Belardo Way. The Palm Springs Art Museum is located on the western side of Museum Drive at the intersection of Museum Drive and Museum Way.
In October 2020, PS Resorts requested approval from the City Council and other public officials to place Forever Marilyn directly on Museum Way between Museum Drive and Belardo Way, rather than placing it in the park. PS Resorts' proposal would transform Museum Way into a vehicle-free, pedestrian-only "art walk" leading from the intersection of Museum Way and Belardo Way to the entrance of the Palm Springs Art Museum. PS Resorts believed Museum Way was a desirable site for Forever Marilyn because it would provide the statue with a picturesque mountain backdrop and visibility from a major downtown thoroughfare.
City officials prepared a staff report endorsing PS Resorts' request. The staff report agreed with PS Resorts that Forever Marilyn would have a scenic backdrop and high visibility if it were placed on Museum Way. Further, it noted that pre-installed bollards could be deployed on either end of Museum Way to restrict vehicle access to the street and ensure the safety of pedestrians who would queue up to view or photograph the statue. The staff report considered alternative locations for Forever Marilyn, including the downtown park, but found them unsatisfactory for site-specific reasons. The staff report acknowledged the placement of the statue on Museum Way could be considered a project for purposes of CEQA. However, it stated that City staff determined the placement was categorically exempt from environmental review under CEQA's "Class 1" exemption for existing facilities (Guidelines,[1] § 15301).
Members of the public submitted dozens of written comments both supporting and opposing the statue's proposed placement on Museum Way. Several persons who opposed the placement on Museum Way specifically disagreed with the plan to close the street to vehicular traffic. Some members of the public predicted the street closure would contribute to greater traffic congestion in the downtown area.
The City Council considered PS Resorts' proposal at a regular meeting on November 12, 2020. By consensus, the City Council accepted the staff report's recommendations. The minutes from the regular meeting state that the City Council "provided direction to the City Manager as follows:
Soon after the City Council meeting, the City and PS Resorts executed a three-year license agreement, effective December 2, 2020, permitting PS Resorts to install and display Forever Marilyn on Museum Way between Museum Drive and Belardo Way. The City has a contractual...
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