In Committee to Relocate Marilyn v. City of Palm Springs (2023) 88 Cal.App.5th 607, the Fourth Appellate District addressed Palm Springs’ decision to interpret Vehicle Code section 21101 to allow the temporarily closure of City streets for short-term events including holiday parties, neighborhood street fairs, and block parties. The court also addressed the statute of limitations under CEQA.
Forever Marilyn is a 26-foot tall, 34,000-pound statue of the actress Marilyn Monroe. It portrays Monroe in a famous scene in which Monroe’s white dress is lifted up by a gust of wind from a New York City subway grate. Forever Marilyn was acquired by PS Resorts, a nonprofit organization that promotes tourism in Palm Springs. The statue was displayed at various sites in Palm Springs over the years but in 2020, PS Resorts requested approval from the City Council to place Forever Marilyn directly on Museum Way, instead of placing it in the park. The new placement transformed 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. In November 2020, the City Council approved the plan to place the statue on Museum Way and for the City Manager to execute a three (3) year License Agreement with PS Resorts. The City Council further directed the City Engineer to proceed with the process of vacating the public’s vehicular access right on a portion of Museum Way (“Project”). In February 2021, the City Attorney determined that the City could not meet the statutory requirements to vacate the street and the City would instead temporarily restrict access to Museum Way under the Vehicle Code.
Vehicle Code section 21101 Authorizes Temporary Closings of Streets and Highways
Vehicle Code section 21101(e) provides that “Local authorities, for those highways under their jurisdiction, may adopt rules and regulations by ordinance or resolution . . . on the following matters:
(e) Temporary closing a portion of any street for celebrations, parades, local special events, and other purposes when, in the opinion of local authorities having jurisdiction or a public officer or employee that the local authority designates by resolution, the closing is necessary for the safety and protection of persons who are to uses that portion of the street during the temporary closing.
(Note: The Vehicle Code uses the terms “street” and “highway” synonymously. (Vehicle Code §§ 360, 590).)
After an exhaustive discussion, the Appellate Court determined a closure for three (3) years is not a temporary closure and therefore the City exceeded its authority under the Vehicle Code to close the street to vehicular traffic.
A Material Change to the Project After the Filing of the Notice of Exemption Makes the 35-Day Statute of Limitation Inapplicable.
The City determined that the Project was categorically exempt from CEQA under Guidelines section 15301 (Cal. Code Regs. tit. 14 § 15301) for the “operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, including negligible or no expansion of existing or former use.” The notice of exemption was filed on December 29, 2020, meaning the 35-day period to file an appeal expired in early February. The petition for administrative writ was filed on March 19, 2021, well after the 35-day period.
The question presented was whether the shortened 35-day statute of limitations period applied since the City subsequently chose not to vacate the public’s vehicular access rights to the street, and instead, decided to close the street on a temporary basis. The Committee to Relocate Marilyn argued the change of the Project – implemented after the posting of the notice of exemption – was a substantial change that frustrated CEQA’s goal of informed public participation.
After a comprehensive discussion of case law, the Court determined there was a material change to the Project after the City filed its notice of exemption, which precluded application of the 35-day statute of limitations. (Pub. Res. Code § 21167.) The applicable statute of limitations was 180 days, measured by the date the Committee knew or reasonably should have known the Project substantially differed from the one described in the notice of exemption. (Concerned Citizens of Costa Mesa v. 32nd District Agricultural Association (1986) 42 Cal.3d 929, 939.)
Patrick L. Enright is an Attorney with Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.