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Fight over 26-foot ‘Forever Marilyn’ statue in Palm Springs revived

A California appeals court agreed Palm Springs can't close a downtown street for three years to accommodate the statue using an ordinance that only allows for temporary street closures.

(CN) — Opponents of a 26-foot statue of Marilyn Monroe that has closed off a street in downtown Palm Springs for the past two years will have another day in court after their lawsuit was reinstated on appeal.

A panel of California's Fourth Appellate District agreed with the Committee to Relocate Marilyn that the Southern California city can't rely on a section of the law that allows it to close a street temporarily for a parade or other special event to close it for years.

"Under the city’s expansive reading of the statute, a local authority could close a portion of a public street for any length of time, so long as the street closure ends at some time in the future," Presiding Justice Judith McConnell wrote in the unanimous decision issued Thursday. "We do not believe the Legislature intended to delegate such a vast expansion of power to local authorities when it granted them the right to 'temporarily' close portions of streets for celebrations, parades, local special events, and the like."

The 34,000-pound statue of the actress, made out of painted aluminum and stainless steel, portrays her in the iconic pose from “The Seven Year Itch,” in which her dress is lifted up by a gust of wind from a New York City subway grate. It was acquired by PS Resorts, a nonprofit that promotes tourism in Palm Springs, where the actress purportedly was first discovered in 1949. Forever Marilyn stood in an empty lot in downtown Palm Springs until May 2014 and since then has been displayed at various other sites in the United States and abroad.

In 2020, Palm Springs approved a plan by PS Resorts to install the statue directly on Museum Way, one of the streets in front of city's art museum, under a three-year lease. That required the city to close a portion of Museum Way to traffic and prompted the lawsuit by the Committee to Relocate Marilyn.

A trial court in Riverside County denied the committee's request for a preliminary injunction in 2021, agreeing with the city that the closure of Museum Way was not permanent and the street was closed for a permissible purpose. The judge also found the committee had waited too long to challenge the closure under the California Environmental Quality Act because they had needed to oppose it on those grounds within 35 days after the city had filed a notice that the closure was exempt from environmental review.

The appellate panel disagreed with the trial court on both points. Not only did the city exceed its authority by closing a public street for three years, the panel said, but the city also substantially changed the terms of the street closure after it had said it was exempt under CEQA — and thereby giving the opponents 180 days rather than 35 to bring their challenge.

Whereas the city originally said the street closure was exempt from environmental review because it would "vacate" the public vehicular access rights to it, which is a permanent change in a street's status, it subsequently switched tack and decided to temporarily close the street instead under the vehicle code.

The appellate court rebuffed the city's argument that vacating public access for vehicles and closing a street temporarily were just two different kind of vehicular access restriction and didn't materially change the project.

"The types of vehicular access restrictions implicated here are materially different from one another in duration and surely could have significantly different environmental impacts," McConnell wrote. "As noted, vacation results in the abandonment or termination of the public’s right to use a road, which does not result from a temporary street closure."

Representatives of Palm Springs didn't respond to a request for comment on the ruling by press time.

Amy Minteer, an attorney for the Committee to Relocate Marilyn, said the group is pleased the court agreed the city’s long-term closure of a public street is not allowed under the vehicle code.

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