sr-022812-7fCity of City Council Report
Santa Monica
City Council Meeting: February 28, 2012
Agenda item: %`F
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Ordinance Amending Santa Monica Municipal Code Section 4.55.060
Relating to Erection of Structures and Winter Displays in Palisades Park
Recommended Action
Staff recommends that Council introduce for first reading the attached ordinance
deleting the Santa Monica Municipal Code (Code) language that allows unattended
winter displays in Palisades Park.
Executive Summary
Winter displays have been erected in Palisades Park,, along Ocean Avenue, for
decades. Generally speaking, the Code prohibits erecting unattended displays in City
parks; but, an exception was created for winter displays in Palisades Park. Because the
park is a classic public forum and displays are expressive, the City cannot allow or
reject any particular display based on the identity of the speaker or its content. If the
City wishes to permit private unattended displays in its parks, it must do so pursuant to
valid time, place, and manner regulations. Last year, for the first time, there were more
requests for spaces than available spaces. Thus, to ensure viewpoint neutrality, the
City ran a lottery last year to allocate winter display space. Many residents and others
complained about the resulting allocation, which did not afford space for the same
number of nativity scenes as had been displayed in the past. Other residents
suggested eliminating displays altogether so that they could better enjoy the scenic view
of the park and ocean. Because the law does not permit awarding park space based on
display content, staff recommends eliminating the exception that allows for winter
displays in the park and encouraging community members to utilize private and
institutional property for displays, including religious displays.
Background
For decades, nativity scenes have been displayed in Palisades Park during the winter
holidays. In 2003 the City Council adopted a law amending the code provisions
prohibiting unattended displays in City parks by creating an exception for winter displays
in Palisades Park. S.M.M.C. Section 4.55.060. In recent years, the nativity scenes were
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installed pursuant to the exception as was a Menorah, winter solstice displays, and
displays by atheists.
Last year, for the first time, requests for display space exceeded the space available.
To address this situation, the City established a content - neutral system for allocating
display space, which utilized random drawing. As a result of the random drawing, most
of the spaces went to applicants who installed displays that did not celebrate the
Christmas story. Several displays advocated atheism. The City received a large
number of complaints, ranging from complaints about having any displays at all to
complaints that only religious displays should be allowed.
Discussion
The displays in Palisades Park are expressive and are covered by First Amendment
protections that prohibit the City from regulating based on content. Therefore, the City
cannot pick and choose which displays to allow based on the displays, messages,
content or identity of the speaker. Nor can the City favor one religious message over
another religious (or anti - religious) message. Nor can the City favor a particular
religious display because that display has become "a tradition" or because the
organizers are based in Santa Monica. Thus, the First Amendment case law affords
only two viable options. The City can continue to allow unattended winter displays in
Palisades Park with space allocated by lottery or some other content neutral system.
Or, the City can eliminate the code exception that allows for winter displays in Palisades
Park, thereby prohibiting all displays, and can encourage community members to
consider using non -City property for religious and other displays.
Staff recommends the second alternative for three reasons. First, many residents who
complained about winter displays this year urged that they would rather preserve the
aesthetic qualities of this designated landmark and look at the ocean vista than continue
the displays. Second, operating the lottery system is both time consuming and costly
for the City and likely to become increasingly so because applicants have indicated they
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will "flood" the lottery process. Third, persons who favor particular displays have the
option of installing them on private property.
Alternatives
The City could continue to operate a lottery to allocate winter display space. That
alternative is not recommended for the reasons stated above. Staff also recommends
against attempting to select park displays based on religious or other content or based
on "tradition" because doing so is legally indefensible.
Financial Impacts & Budget Actions
Adoption of the ordinance would have no adverse financial impacts and would conserve
City resources.
Prepared by: Marsha Jones Moutrie, City Attorney
Approved: Forwarded to Council:
A14'a �
Ma sha J es Mole Rod Gould
Cit Atto n y City Manager
Attachments: A. Proposed Ordinance
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City Council Meeting: February 28, 2012 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING SANTA MONICA MUNICIPAL CODE SECTION 4.55.060
RELATING TO ERECTION OF STRUCTURES AND WINTER DISPLAYS IN
PALISADES PARK
WHEREAS, for many years, Nativity scenes have been displayed in Palisades
Park, a world- renowned historic landmark, during the winter holidays; and
WHEREAS, the Santa Monica Municipal Code Section 4.55.060 generally
prohibits unattended displays in City parks; and
WHEREAS, in 2003, this section was amended to create an exception to the
prohibition so that winter displays would be allowed in Palisades Park; and
WHEREAS, the City has also adopted written regulations governing these
displays; and
WHEREAS, in recent years, the Nativity scenes were installed pursuant to the
exception as was a Menorah, winter solstice displays and displays advocating atheism;
and
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WHEREAS, last year, for the first time, not only did the number of requested
displays exceed the available space, but multiple requests were received on the same
day for the same block; and
WHEREAS, to address that situation, the City implemented its content - neutral
system for allocating display space, utilizing a random drawing; and
WHEREAS, as a result of the number of spaces requested by the applicants,
only the first four names drawn were allocated space; and
WHEREAS, most of the spaces went to applicants who did not utilize them to
celebrate religious holidays, and many used the display space to advocate atheism; and
WHEREAS, the City received a large number of varied complaints about the
displays; and
WHEREAS, many complainants advocated for limiting displays to traditional or
religious content, and many other complainants advocated for no displays at all
because the displays block the scenic views of the park and ocean; and
WHEREAS, because the number of applicants for display space has grown so
large, the City cannot accommodate all those who wish to install displays without
blocking much more or all of the park frontage and views; and
WHEREAS, because the park is a classic public forum, the City cannot pick and
choose between applicants based on the content of their proposed displays or the
applicants' identity and therefore must either eliminate winter displays or operate a
system that allocates to all "speakers" equal opportunities to use the available space,
irrespective of the content of their message; and
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WHEREAS, operating the system this year was extremely time consuming for
City staff due to the large number of applicants; and
WHEREAS, staff has been notified that even more applications will be filed next
year, which will make administration even more time consuming and costly; and
WHEREAS, input from the public indicates that a large number of City residents
would prefer to have no displays in the park; and
WHEREAS, displays, including displays celebrating religious holidays, are often
installed on non - governmental property; and
WHEREAS, displays that have been or could be installed in Palisades Park may
be installed on other, non - governmental property; and
WHEREAS, eliminating winter displays in Palisades Park will conform usage of
that park to the long standing, City -wide standard which prohibits unattended displays in
parks, conserve City resources, and protect the views of the park and ocean from
Ocean Avenue without precluding the installation of displays on other non - governmental
property.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Santa Monica Municipal Code Section 4.55.060 is hereby amended
to read as follows:
4.55.060 Erection of structures.
No person shall, in any park, erect, maintain, use or
occupy any tent, lodge, shelter, structure or unattended
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installation or display. The following are exempt from this
prohibition:
(a) City structures and installations;
(b)—Unattended iRstallatiens eF URattel ed displays
in Palisades Park ad a t to Q—Gean Aveftue from keven,h°r
2yth -through janwary h,- -'n - -an -- area designated --by -City,
Council resolw#oR��
(ob) Other displays or installations authorized by a
Community Event Permit issued by the City.
#-dis I fs Or installatiGRG n#MUa„A-tG--,4Jbseetion -M
N
of this on 8XGe
G4y-- &hal4- a4osat° thsigaated -spayti Gn- a4i4:&t-oome„rst
served basis, irrespective Of the nten+ °f +h° display or
+nstallatioR -arid irrespective -of -the- iden +l+ the- perso +�
persons regpGnsible for
Persons displaying or installing pursuant to the
exemptions in subsections (b) and{} of this Section must
comply with applicable safety standards, cover any attendant
costs to the City and agree to hold the City harmless as to
injury or loss resulting from the installation or display. The
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City Manager may adopt administrative guidelines for
allocating the space available for displays and installations.
SECTION 2. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 3. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
�" A ,.
M 'S HA NES OUTRIE
Ci Atto , y
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