A state appeals panel has ruled Palm Springs violated California law by improperly closing a major thoroughfare to allow for the years-long installation of a massive Marilyn Monroe statue.
According to court records, Palm Springs entirely closed a downtown street from vehicular traffic for three years to accommodate construction of “Forever Marilyn,” a statue representing the iconic “flying skirt” sequence from “The Seven Year Itch.” The painted aluminum and steel statue stands 26 feet tall and weighs 34,000 pounds.
PS Resorts, a nonprofit tourism promotion organization, bought the statue in 2012, citing the belief producers discovered Monroe in Palm Springs in 1949. After displaying it in an empty downtown lot, in May 2014 the organization sent the statue to other sites across the world. In 2016, the Palm Springs City Council approved making the statue the centerpiece of a new downtown park bordered by Museum Way, Museum Drive and Belardo Way, near the art museum.
In October 2020, PS Resorts asked the city to place the statue directly on Museum Way between Belardo and Museum Drive. The plan involved changing Museum Way into a pedestrian only “art walk” access to the museum, and taking advantage of a scenic mountain backdrop for “Forever Marilyn.”
A group of citizens, which named itself the Committee to Relocate Marilyn, filed a petition alleging the city misused its rights under a state vehicle code section that allows temporary road closures “for celebrations, parades, local special events and other purposes” and further said Palm Springs wrongly declare the work exempt from California Environmental Quality Act review. That petition named PS Resorts as a party in interest.
The city said it was following both state and local code for temporary closures and said the CEQA claim was untimely, as it filed a notice of objection and no one filed a challenge within the requisite 35-day review window. After Riverside Superior Court Judge Ronald Johnson sided with the city, the committee challenged the ruling before the Fourth Appellate District Court.
Justice Judith McConnell wrote the panel’s opinion, issued Feb. 23; Justices Richard Huffman and Truc Do concurred.
State and city street closure rules “allow cities to temporarily close portions of streets for short-term events like holiday parades, neighborhood street fairs, and block parties — proceedings that generally last for hours, days, or perhaps as long as a few weeks,” McConnell wrote. “They do not vest cities with the expansive power to close public streets — for years on end — so statues or other semi-permanent works of art may be erected in the middle of those streets.”
Taking the city’s broad statutory interpretation, the panel wrote, would functionally allow any street closure, for any purpose, so long as it eventually ends and a city could show the closure protects anyone using the street during the closure. That “vast expansion of power to local authorities” was not the legislature’s intent in allowing short-term road closures, McConnell wrote.
While the panel said the city correctly noted its CEQA exemption and the 35-day window to file an objection, it noted Palm Springs “abandoned its plan to vacate vehicular access to the street and elected to close the street instead.” The panel said that adjustment constituted a material change to the project without affording the public a chance to review the revision or environmental impact.
In those instances, the law stipulates a default statutory limitation of 180 days after a group like the Committee to Relocate Marilyn knew or should have known about the change, and in this case the Committee filed within the proper timeframe. The panel further said the record shows the city declined to pursue formal vacation of the relevant section of Museum Way, believing it couldn’t legally prove the need to do so, bolstering the position citizens deserved a chance to object to the “temporary” alternative plan.
The only instance in which the appeals panel agreed with the city concerned the Committee’s alleged violations of various Streets and Highway Code provisions regarding street vacation. Because the city never formally sought vacation, Judge Johnson was right to dismiss that portion of the Committee’s petition. Furthermore, the Committee didn’t discuss that element in its opening appeal brief, functionally abandoning the claim.
The panel otherwise reversed Judge Johnson’s dismissal and remanded the remainder of the complaint to Superior Court for further proceedings. It also said the Committee is entitled to a monetary award of its costs for the appeal.
The Committee to Relocate Marilyn is represented by attorneys with the firm of Chatten-Brown, Carstens & Minteer
Palm Springs is represented by the firm of Best Best & Krieger.
PS Resorts is represented by Blasdel Guinan Lawyers.