Flamer v. City of White Plains, NY

841 F. Supp. 1365

Rabbi Reuven FLAMER, Plaintiff, v. CITY OF WHITE PLAINS, NEW YORK, Defendant.

No. 92 Civ. 9165 (SS).

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

December 6, 1993.

Nathan Lewin, Niki Kuckes, James Heavner, Miller, Cassidy, Larocca & Lewin, Washington, DC, for plaintiff Rabbi Reuven Flamer.

Vincent R. Fontana, Robert P. Pagano, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, for defendant City of White Plains, NY.

OPINION AND ORDER

SOTOMAYOR, District Judge.

This case involves the interplay between two of our nation's most cherished values: freedom of expression and freedom of religion. In 1991 and 1992, plaintiff Rabbi Reuven Flamer ("Rabbi Flamer") sought permission to display a menorah during the holiday of Chanukah in one of two city-owned parks, Tibbits Park ("Tibbits") or Main Street/Mamaroneck Avenue Plaza Park ("Main"), located in the downtown area of White Plains, New York. Defendant, the City of White Plains, New York (the "City"), denied both requests pursuant to a December 2, 1991 Resolution (the "Resolution"), adopted by the White Plains Common Council (the "Common Council"), which prohibits "fixed outdoor displays of religious or political symbols" in City parks.

Rabbi Flamer desires to erect a temporary free-standing menorah in a City park during the eight day holiday of Chanukah this year and in the future. He claims that the City's Resolution is unconstitutional under the Free Speech and Free Exercise Clauses of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment. Rabbi Flamer requests that I (1) declare the Resolution unconstitutional; (2) permanently enjoin the City from applying the Resolution to his requests to display a menorah in a City park; and (3) order the City to permit him to erect a free-standing menorah in a City park during the Chanukah holiday this year and thereafter.

The City concedes that the Resolution restricts expressive conduct protected by the First Amendment, but contends that the Resolution is a constitutionally valid time, place and manner restriction that is necessary to avoid a violation of the Establishment Clause. The City claims that because it has never allowed fixed, free-standing religious displays in City parks, permitting such a display now would violate the Establishment Clause because it would convey the impression that the City endorsed particular religions or religion generally.

This case was tried before me on October 18, 1993, and the record, as agreed by the parties, consists entirely of stipulations of fact, depositions, answers to interrogatories and requests for admissions, and exhibits. Jurisdiction is premised on 28 U.S.C. §§ 1331 & 1343(a) (1993). This Opinion and Order sets forth my findings of fact and conclusions of law. For the reasons discussed below, I find the Resolution unconstitutional and enjoin the City from applying the Resolution to Rabbi Flamer's requests.

I. BACKGROUND

Rabbi Flamer is an Orthodox Jewish Rabbi who is a member of the Hasidic Lubavitcher sect of Orthodox Judaism. Rabbi Flamer resides in White Plains, New York. At all relevant times, Rabbi Flamer has served as the Executive Director of Chabad Lubavitch of Westchester County ("Chabad"). Chabad is an Orthodox Jewish organization concerned with Jewish education and other issues. Chabad does not have a membership in the sense of a congregation, and Rabbi Flamer and his wife are the organization's sole officers.

The City is a municipal corporation of the State of New York, located in Westchester County. The City, through the White Plains Department of Recreation and Parks (the "Parks Department"), maintains over 200 acres of park land in Westchester County. Since 1979, Joseph P. Davidson has served as the Commissioner of the Parks Department.

Chapter 6-2 of the White Plains Code, entitled "Parks and Playgrounds," sets forth general rules governing use of City parks. Park use is also governed by municipal, state and federal laws, as well as formal and informal policies and practices devised by the Parks Commissioner. Like private parties, the City must comply with all relevant laws and administrative rules in its use of the parks.

Those, including the City, who wish to use a City park for an event involving more than 25 people, the placement of objects or equipment, or the use of a sound system must obtain a permit from the Parks Department. To request a permit, parties generally send a written request to the Parks Commissioner detailing various aspects of the proposed use, including the time, date, and number of people expected. All requests other than those for ballpark or athletic permits are handled by the Parks Commissioner and his Deputy Commissioner, who examine them for user conflicts, operational concerns and legality. If a request is granted, permit holders typically must meet certain conditions, such as providing evidence of insurance, ensuring that public access to the park is not impeded, and agreeing to comply with the City's noise ordinances.

A. Tibbits and Main

Two of the City's parks, Main and Tibbits, are situated in the downtown area of White Plains. Main, a public park which has been in existence since 1983, is slightly less than half an acre in size, and is bounded by Main Street, Mamaroneck Avenue and Court Street. Main is located approximately one block from City Hall; however, City Hall is only visible from that portion of the park which fronts on Main Street. Various commercial buildings and stores surround Main, but no government buildings adjoin the park. Main contains, among other things, a fountain, park benches and concrete planters.

A few blocks from Main lies Tibbits, a public park, whose use dates back to George Washington's time, when the area served as the town commons or village green. Two acres in size, Tibbits consists of a strip of land extending several blocks, approximately 15 to 20 feet wide at its narrowest end, the northernmost end of the park, and 300 to 400 feet at its widest point, the southernmost end of the park. The park forms a median between North and South Broadway, with three lanes of traffic on each side. Residential and commercial buildings as well as two government buildings, the White Plains Parking Authority and the City Armory which houses certain municipal offices, adjoin the park. Like Main, Tibbits is located approximately one block from City Hall, which is visible only from that area of the park located at the corner of Main Street and North Broadway. Tibbits contains, among other things, park benches, a fountain and a gazebo, constructed in 1984 by the White Plains Beautification Foundation, Inc. City Hall can not be seen from the park block where the fountain and gazebo are located.

Tibbits and Main are "dedicated" park lands open for use by members of the public. For property to become "dedicated" park land, the Common Council must pass a resolution designating the property as such and the New York State legislature must approve the designation. Unlike other municipal property, "dedicated park land" may only be used for park and recreational purposes and can only be alienated by act of the state legislature. In addition, the Parks Department has classified Tibbits and Main as "passive" parks. Passive parks are parks set aside for peaceful enjoyment by individuals. In a passive park, individuals may walk, sit, talk, relax and do anything else that is quiet and passive. Active parks, by contrast, are those where active athletic and recreational activities are permitted.

Over the years, a wide array of expressive activity by private groups and individuals has occurred in both Tibbits and Main. A prime arena for political expression, Main has been used by numerous political and social activist organizations for demonstrations, rallies and vigils, around issues as diverse as Middle East peace, the United States' invasion of Panama, abortion rights and nuclear disarmament.¹ Main was also used as the starting or ending point in a march by advocates for the homeless. In addition, a nursing organization held a vigil for cancer victims, which included an ecumenical service, on Main's Plaza. In Tibbits, historically a forum for public assembly and debate, the City and the White Plains Cemetery conducted a wreath-laying ceremony for soldiers killed in World War I. The Sons of Italy have also conducted a wreath-laying ceremony there to commemorate Columbus Day. Tibbits has also been the site of gatherings honoring those who died in the Civil and Spanish American Wars.

In addition, diverse creative and social events are regularly held in these parks. Since 1972, the Parks Department and the Citizens's Festival Committee, a private, not-for-profit organization, have sponsored the White Plains Outdoor Arts Festival in Tibbits, along the sidewalks of Main Street and Broadway, and in Main's Plaza. The Arts Festival, which showcases more than 160 exhibits, lasts approximately three days over a weekend in June, and involves the erection of various temporary but fixed structures, namely, free-standing tents, temporary barricades and signs. These objects are permitted to remain in the parks overnight during the three-day event.

Tibbits and Main are also home to the Noonday Festival of Live Music, another annual creative event organized by the City. This festival, which began in Tibbits in 1980 and was extended to Main in 1983, involves a series of musical concerts during the months of June and July and is funded by corporate sponsors. In Main, portable shade tents have been erected for the performances.²

Winter holiday festivities in Tibbits and Main have regularly included fixed displays which remained standing throughout the holiday season. On several occasions since 1983, a holiday tree, donated by private parties and decorated by volunteers and City employees, has been displayed in Main. This tree, which is approximately four to six feet in...