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sr-061212-5aa City Council Report City Santa Monica JUNE 12, 12- City Council Meeting: Agenda Item: 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 City Council introduce for first reading the attached ordinance, which would delete from the Santa Monica Municipal Code (Municipal Code) language allowing private, unattended winter displays in Palisades Park. Executive Summary The Municipal Code prohibits private unattended displays in City of Santa Monica (City) parks, but an exception to that general prohibition allows for winter displays in Palisades Park along Ocean Avenue, where there have been displays for decades during the holiday season. Such displays are classified as expression and are protected by the First Amendment, which prohibits the City from favoring or disfavoring protected expression based on its content. Thus, the City can allow private displays in its parks, or not, but it cannot pick and choose between them based on their content. On February 28, 2012, in order to resolve controversy and conserve City resources, staff proposed an ordinance that would amend Section 4.55.060 by repealing the winter display exception. If adopted, that ordinance would effectively eliminate winter displays in the park, including religious displays, such as the Nativity scenes. At the request of community members, Council postponed consideration of the proposed ordinance to allow for community discussion of alternatives. Staff now reiterates its proposal and recommendation that Council approve the attached ordinance. Background Privately owned and installed Nativity scenes have been displayed in Palisades Park by local churches for decades. And, in recent years, displays have also celebrated Hannakuh and solstice and have advocated atheism. Last year, when requests for display space exceeded the space allotted for displays, the City operated a lottery in order to allocate display opportunities in an unbiased manner. This was done to effectuate First Amendment requirements of neutrality and thereby avoid legal risks. The random drawing resulted in most spaces being allocated to displays that opposed religion. Controversy ensued. Some argued that the "traditional" Nativity scenes, which had been in the park for sixty years, must somehow be preserved. Others favored the lottery system for allocating spaces but advocated standards for displays that would ensure aesthetic merit. Some opposed all private displays on public space. Many felt that the juxtaposition of religious and anti - religious displays was a distressing symbol of conflict inconsistent with values of peace and harmony that many associate with the holiday season. The First Amendment severely restricts the City's options. Staff proposed the attached ordinance 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 will "flood" the lottery process. Third, persons who favor particular displays have the option of installing them on private property. Since the ordinance was proposed, community members and others have had the opportunity to discuss options and further express their views to their government. Discussion The proposed ordinance, which would eliminate private, unattended winter displays in Palisades Park, would serve the purpose of resolving the controversy, eliminating legal risks, conserving the staff time and resources necessary to operate a constitutionally valid regulatory system, conforming usage of Palisades Park to the long standing, City- 2 wide standard which prohibits unattended displays in parks, and protecting the views of the park and ocean from Ocean Avenue without precluding the installation of displays on other non - governmental property. At the February 28th meeting, staff summarized the case law, in an oral report, focusing on two southern California cases about cities' regulation of religious (and anti - religious) holiday displays in city parks. Since those cases form the basis of staffs recommendation, they are again noted here. Kreisner v. San Diego, 988 F.2d 883 (9th Cir., 1993), stands for the proposition that a City may permit private displays through a content - neutral permit allocation process Jewish Congress v. Beverly Hills, 90 F.3d 3790 (9th Cir. 1996) stands for the proposition that a City, which allows religious displays in a park, cannot refuse to allow other displays in the park protesting the religious displays. Based on these cases, staff explained that the City cannot favor particular displays, including Nativity displays, and cannot prohibit displays that criticize other displays. Since February 28th, staff has been in contact with representatives of the groups that installed the Nativity scenes and the anti - religious displays last winter. Both groups have received advice from attorneys. Both have informed staff that they will file more applications next year to increase their odds of being allocated more spaces. Staff has also been in contact with community religious leaders, with attorneys, and with others. In all, the various stakeholders made a number of suggestions, including: keep the displays but revise the lottery process; physically separate the religious and anti religious displays to minimize conflict; eliminate all unattended private displays from the park, relocate private displays to private property. Staff noted all suggestions, assessed legal threats, and considered all commentary. Staff also encouraged all to share their thoughts with the Council. In assessing the legal input, staff noted that its understanding of the law and the views expressed by other attorneys were not materially different. The only significant difference is as to the legality of allocating different areas of the park for religious and k, anti - religious displays. Staff believes that this approach would be legally problematic, at least in this circuit. Overall, the community input and dialogue have not caused staff to change its recommendation or its thinking as to the alternatives and budgetary impacts. Those remain the same as stated in the February 28th report. Accordingly, the attached ordinance is again submitted and recommended for first reading. Alternatives Alternatively, Council could decide to maintain the exception for winter displays in the Municipal Code, in which case staff would, once again, operate a lottery in order to allocate winter display space. Staff recommends against the alternative for the reasons stated in this and the previous report. Financial Impacts & Budget Actions There are no significant financial or budget impacts attendant upon approving and adopting the proposed ordinance. Staff time that would otherwise be expended on the lottery system will be conserved and used to handle the growing number of Community Event applications. Prepared by: Marsha Jones Moutrie, City Attorney roved: Forwarded to Council: ATTACHMENT: Proposed Ordinance S jar tJes Moutr. Rod Gould City Man ager ATTACHMENT: Proposed Ordinance S City Council Meeting: May 22, 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 0 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 li7 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 3 installation or display. The following are exempt from this prohibition: (a) City structures and installations; (b) -- Unattended- i+,stallatiGnns -or unattended- ds�splays in Palisades Dark adjacent to Ocean Aven user 2-7th- through- JanLiary--4t44n- -an- area desig +gated- by --Sity Council resolution; and (Gb) Other displays or installations authorized by a Community Event Permit issued by the City. If displa,ySer- iri3tallations n ur d�o- -subrv'eGtien4b) of Qent4o exceed the nvr,'hhle �nnGe —the Slty- shall - all© Gate - the -desig Rated spase- en-a -€irst .G ,e-,fw-st- ed basic respect' e_ of tho no ntnnt of t4 o T or —.11111 instaRa*)n a ^d- ;rrespestive- of-the 'd "f-the- person -er persons sible for the display Persons displaying or installing pursuant to the exemptions in subsections (b) and (c) 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 rd 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: (l,-I - ��W �M May 11, 2012 Mayor Richard Bloom City Council Santa Monica, California Dear Mayor Bloom and City Council Members, MAY 2 2 2012 Enclosed are signatures collected both on paper and via our Website from people who live, work, pray, and visit in Santa Monica. These petitioners are asking you to maintain the unique, nearly 60- year -old Santa Monica tradition of the Nativity Scenes in Palisades Park, its magnificent home from its opening in 1953, along with the traditional Hanukkah menorah display there. Many electronic signers used the opportunity to add comments, which are printed out together for ease of review. I hope you will dedicate a few minutes to sample some of these comments. I think you will be struck by the heartfelt love and respect these supporters have for the Nativity Scenes, the significance the displays have for their Christmas and Hanukkah seasons, and the disappointment the writers felt at the Nativity Scenes being squeezed last year to under a quarter of the usual size. You can imagine the sorrow and displeasure these writers would feel should the Scenes be rooted up from Palisades Park and consigned to an uncertain future — perhaps to oblivion. That sad occurrence, which would also be an alarming suppression of free speech, is not necessary. With the assistance of legal counsel specializing in nativity scenes and First Amendment law, we recently submitted a proposal to you that would provide a fair and reasonable opportunity for the Santa Monica Nativity Scenes and menorah to remain in Palisades Park, although not an iron -clad guarantee. This constitutionally sound approach uses current procedures with modifications for improvement. The city, which says its ability to regulate time, manner and place of protected speech gives it the absolute power to ban all displays, would instead use this power to designate the current display area (not a larger one) as a limited open forum for decorations celebrating December holidays, not for displays denigrating holidays and other targets. The December holiday forum would take applications on a fair and equal basis (one space per applicant) from all who wished to make use of the opportunity. If applications exceeded spaces, a streamlined lottery would determine who wins spaces. Other reasonable rules prescribe forfeiture of space for nonperformance, set out modest usage requirements to assure that displays adequately decorate their space, and expedite community cooperation in presenting displays. Supported by the enclosed 1,636 signatures, the Nativity Scenes Committee, which is made up of representatives of 14 Santa Monica -based organizations that total more than 20,000 members, asks you to enact our reasonable approach as an ordinance in order to allow the message of peace, goodwill, joy, and the triumph of light over darkness conveyed by the Nativity Scenes and menorah to continue to be celebrated in a special way by thousands of Santa Monica's residents, workers, and visitors. Sincerely yours, Hunter T. Jameson Chapman Enclosures: Petitioners' comments, petitions with 1,636 signatures The `janta Monica N ativit.9 cjcenes Committee ", P.Q. gox 0648 rjanta Monica, CA 90406 The Committee is a 501 (c) (4) tax - exempt group. Donations are not deductible for federal income taxes. r