Robar v. Vill. of Potsdam Bd. of Trs.

• Decision Date: 21 September 2020
• Docket Number: 8:20-CV-0972 (LEK/DJS)
• Citation: 490 F.Supp.3d 546
• Parties: Frederick "Hank" ROBAR, Plaintiff, v. VILLAGE OF POTSDAM BOARD OF TRUSTEES, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

490 F.Supp.3d 546

Frederick "Hank" ROBAR, Plaintiff,

v.VILLAGE OF POTSDAM BOARD OF TRUSTEES, et al., Defendants.

8:20-CV-0972 (LEK/DJS)

United States District Court, N.D. New York.

Signed September 21, 2020

Jon E. Crain, Jr., Whiteman, Osterman Law Firm - Albany Office, Albany, NY, for Plaintiff.

MEMORANDUM-DECISION AND ORDER

Lawrence E. Kahn, U.S. District Judge

I. INTRODUCTION

Plaintiff Frederick "Hank" Robar brings this action for declaratory, injunctive, and monetary relief against the Village of Potsdam Board of Trustees (the "Board"), Potsdam Mayor and Board member Ron J. Tischler, Potsdam Deputy Mayor and Board member Steven Warr, Potsdam Code Enforcement Officer Lisa Newby, and Potsdam Administrator Gregory L. Thompson, asserting claims under the First and Fourteenth Amendments to the United States Constitution and the Visual Artist Rights Act, 17 U.S.C. § 706A ("VARA"). Dkt. No. 1 ("Complaint"). Before the Court is Plaintiff's motion for a temporary restraining order and preliminary injunction, Dkt. No. 5 ("Motion"), which is accompanied by a memorandum of law, Dkt. No. 5-1 ("Plaintiff's Memorandum of Law"), an affidavit of Plaintiff, Dkt. No. 5-2 ("Robar Affidavit"), a declaration of Plaintiff's attorney Jon E. Crain, Dkt. No. 5-14 ("Crain Declaration"), and various exhibits, Dkt. Nos. 5-3 to -13. As relevant to the Motion, Plaintiff, who has placed toilets repurposed as flower planters in outdoor spaces on several properties he owns in Potsdam, seeks to enjoin an enforcement action against him pursuant to a Potsdam ordinance mandating the removal of "junk," as defined in the ordinance, from public view. See generally Motion. Plaintiff also requests a declaration that his porcelain gardens are not "junk," as defined in the ordinance, and thus are not subject to removal under local law. Pl.’s Mem. of Law at 22. Defendants have submitted a response in opposition to the Motion, Dkt. No. 13 ("Response"), accompanied by a memorandum of law, Dkt. No. 13-1 ("Defendants’ Memorandum of Law"). Plaintiff filed a reply. Dkt. No. 18 ("Reply").

Upon the consent of the parties, the Court decides Plaintiff's motion for a temporary restraining order and motion for a preliminary injunction simultaneously. See Dkt. Nos. 15, 16. For the reasons that follow, the Court grants Plaintiffs’ Motion and denies Plaintiff's request for declaratory relief.

II. BACKGROUND

A. Plaintiff and His "Porcelain Gardens"

Plaintiff is a Potsdam resident and property owner who has achieved some renown for what some regard as toilet art. See Compl. ¶¶ 13–29; Robar Aff. ¶¶ 2–3, 12–13. Plaintiff has installed toilets repurposed as planters containing floral arrangements and attached to decorative posts, installations he refers to as "porcelain gardens," on seven properties he owns in Potsdam.

See Compl. ¶¶ 17–24; Robar Aff. ¶ 8. To create a "porcelain garden," Plaintiff cleans the bowl, removes the functional components of the toilet, and places an arrangement of flowers in the bowl, "with colorful painted posts and other accompanying plant arrangements." Compl. ¶ 23.

Plaintiff first created these installations to protest a 2005 decision by the Potsdam government denying a special use permit for two adjacent properties he owns, a decision that thwarted Plaintiff's sale of this real estate to a buyer who wished to construct and operate a Dunkin’ Donuts franchise. Compl. ¶¶ 13–29; Robar Aff. ¶¶ 4–8. Plaintiff installed his earliest porcelain gardens on the properties in question as an expression of his philosophical disagreement with Potsdam's purported authority to limit his right to use his private property however he pleased. Compl. ¶ 18; Robar Aff. ¶ 10.

Since that time, the function of Plaintiff's porcelain gardens has evolved to encompass what Plaintiff describes as artistic ends. Compl. ¶¶ 19–20; Robar Aff. ¶¶ 10–11. After his initial protest received praise from local residents, Plaintiff "fell in love with the artistic and expressive value of the toilets as fun and funky porcelain planters." Compl. ¶ 20; Robar Aff. ¶ 10.

Also since his initial 2005 protest, Plaintiff's porcelain garden installations have proliferated across all seven of his properties and achieved local, statewide, and even national attention. See id. ¶ 25, 28; Pl.’s Mem. of Law at 4–6; Robar Aff. ¶ 12; Mot. Ex. A. For instance, News outlets covering Upstate New York news, including the Watertown Daily Times, North Country Now , and the Daily Courier Observer, have published stories discussing Plaintiff's porcelain gardens and describing them as forms of "art"; and Plaintiff's installations have been covered by the National Broadcasting Company. Pl.’s Mem. of Law at 4–6. Moreover, Plaintiff "recently entered into a licensing and royalty agreement with an established documentarian, authorizing the production of a short film" featuring his porcelain gardens. Compl. ¶ 28.

Plaintiff's installation of numerous repurposed toilets across his several Potsdam properties has at times led the Potsdam government to initiate legal action against him. From 2008 to 2010, the Potsdam Code Enforcement Officer¹ issued various citations with respect to Plaintiff's properties and on two occasions compelled him to appear before the Village Court. Compl. ¶¶ 30–40; Robar Aff. ¶ 14. In 2008, the Code Enforcement Officer issued two "Order[s] to Remedy Violation[s]" for one of his properties, one on April 3, 2008 and one on September 4, 2008, both alleging that Plaintiff's porcelain gardens violated Chapter 142-11 of the Village Zoning Code.² Compl. ¶¶ 31–32; Robar Aff. ¶ 14(a)–(b). Subsequently, the Code Enforcement Officer issued an "appearance ticket" on September 12, 2008, requiring Plaintiff to appear before the Village Court on September 24, 2008. Compl. ¶ 33; Robar Aff. ¶ 14(c). The matter was ultimately dismissed. Compl. ¶ 34; Robar Aff. ¶ 14(c). During the end of 2009 and the beginning of 2010, a similar process unfolded with respect to the same property, with the Code Enforcement Officer issuing an "Order to Remedy Violation," the same authority subsequently issuing an "appearance ticket," and the matter ultimately being dismissed. Compl. ¶¶ 35–37; Robar Aff. ¶ 14(d)–(e).

B. Village Code Chapter 125

On December 3, 2018, the Board adopted a "Junk Storage Law," incorporated at Chapter 125 of the Village Code. Compl. ¶ 42; Robar Aff. ¶ 15; Mot. Ex. G.³ The law provides that "[t]he deposit, accumulation, display and/or outdoor storage of junk, junk appliances, junk furniture, junk mobile homes, junk motor vehicles, garbage (collectively hereinafter (‘junk’)), regardless of quantity, is hereby prohibited within sight of persons traveling the public highways or within sight of neighboring property/properties and/or business concerns." Village Code § 125-5. The law defines "junk" as "[w]orn out or discarded material of little or no value, including, but not limited to, junk appliances, junk furniture, junk mobile home(s), junk motor vehicle(s) and/or garbage and/or rubbish, clutter, litter and debris." Id. § 125-4. "Junk appliances" is defined to include "bathroom fixtures," id., which in turn is defined as "[a]ny fixture reasonably found in a bathroom, including, but not limited to, toilets and toilet components , sinks and sink components, vanities and vanity components, medicine cabinets, mirrors, bathtubs and shower stalls," id. (emphasis added). In its "Statement of Purpose" section, the law provides that its restrictions are intended to serve aesthetic and public safety objectives, in addition to preventing property values from declining:

The outdoor storage of junk on privately owned property within the Village of Potsdam is detrimental to the health, safety and general welfare of the community. Junk storage constitutes an attractive nuisance to children and may imperil their safety. The presence of junk is unsightly and tends to depreciate the value not only of the property on which such junk is located but also the property of other persons and/or entities within the neighborhood thereof (and the community in general) unless such junk is properly removed or screened from public view. Control of the outdoor storage of junk on privately owned properties within the Village of Potsdam is therefore regulated for the preservation of the health, safety and general welfare of the community ...

Id. § 125-2.

Violations of Chapter 125 are punishable by fine. The ordinance provides that "[a] violation of the provisions of this chapter shall be punishable by a minimum fine of $250 and maximum fine of $500 for each offense and shall be levied by a court of competent jurisdiction," and that "[e]ach day that a violation of this chapter is committed or continues to exist shall constitute a separate offense." Id. § 125-8A.

The issuance of a "notice to comply" is a prerequisite to the enforcement of the statute in any individual case. "Whenever a violation of [Chapter 125] is found to exist within the Village of Potsdam, either the Village Code Enforcement Officer, the Village police or other duly designated agent of the Village shall give a written notice to comply to the owner and/or occupant" of the offending property. Id. § 125-7C. The notice to comply must contain certain information, such as the location of the allegedly offending property, the name of its owner, a statement of the alleged facts upon which a violation is based, and a demand that the relevant "junk" be "removed or placed so as to be in compliance with this chapter within 30 days after the service or mailing of the notice." Id. § 125-7E.

A Potsdam resident served with a Notice to Comply can request a hearing with the Board. "If a public hearing is requested, in writing, by the person charged with a violation of this chapter ... a hearing shall be held by the Board of Trustees at the call of the Mayor, but in no case later than 30 days after receipt by the Village Clerk of the written request." Id. § 125-9. At this hearing, the Board will hear...