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December 6, 1993



The opinion of the court was delivered by: SONIA SOTOMAYOR


 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. ยงยง 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.


 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.

 Parties, including the City, desiring 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. Other than requests for ballpark or athletic permits, all requests 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, open for use by members of the public, are "dedicated" park lands. 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, Tibbits and Main have been the site of a wide array of expressive activities by private groups and individuals. 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. *fn1" 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.

 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. *fn2"

 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 height, has remained in place throughout the December holiday season. Similarly, a decorated holiday tree, ranging from fifteen to thirty feet in height, has been placed in or near the fountain in Tibbits each year since 1983. Like the Main holiday trees, the Tibbits' trees are donated by private parties, and have remained standing throughout the holiday season, and occasionally through spring. In addition, the White Plains Beautification Foundation, Inc., a private group, has placed a decorated holiday tree, up to eight feet in height, in the Tibbits gazebo each year from 1990 to 1992. On occasion, Christmas songs, some religious in nature, have been sung or played at the lighting of the Main and Tibbits' holiday trees. In accordance with Supreme Court precedent, see County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 616, 109 S. Ct. 3086, 3113, 106 L. Ed. 2d 472 (1989) (plurality opinion) (a "Christmas tree, unlike a menorah, is not itself a religious symbol"), the parties acknowledge, however, that the holiday trees in Tibbits and Main are not religious symbols.

 The Parks Department has also permitted private fixed displays on other City-owned property. For the past four years, a United Way sign has been placed for some months at the corner of Gedney Way and Mamaroneck Avenue on the City's right-of-way near Gilley Park. A similar sign has been displayed on the steps of City Hall.

 While Tibbits and Main have served as forums for a host of diverse gatherings, displays and other activities, the Parks Department has on occasion denied requests to use the parks. For example, based on its designation of Main and Tibbits as "passive parks," the Parks Department refused the Westchester Chapel and Grace Church permission to hold musical concerts in Main, and a labor union permission to hold a rally involving approximately 1500 people in Tibbits.

 B. Rabbi Flamer's 1991 Menorah Display Request

 In October 1991, Rabbi Flamer wrote to Commissioner Davidson to request a permit, on behalf of Chabad, to erect an electric menorah in Main during the Jewish holiday of Chanukah, which lasted from December 1 to December 8, 1991. *fn3" Chanukah is a religious holiday observed by Jews during an eight day period which ordinarily falls between the latter part of November and the first part of January of each year. The menorah, a religious symbol of the Jewish faith associated with the celebration of lights of the Chanukah holiday, is a nine-pronged candelabra representing the eight days of Chanukah, with one space for a candle used to light the other eight. Designed for outdoor use, the menorah Rabbi Flamer proposed to display was constructed of aluminum and measured nine feet tall. In conjunction with his display request, Rabbi Flamer also requested permission to run a sound system in connection with a menorah lighting ceremony.

 Finding Rabbi Flamer's request "unusual," Commissioner Davidson brought it to the attention of White Plains mayor, Alfred Del Vecchio. When Rabbi Flamer contacted him a few weeks later to inquire about the request, Commissioner Davidson informed Rabbi Flamer that it had been referred to the Corporation Counsel's office.

 As of November 6, 1991, Rabbi Flamer had not received any response to his request. That day he sent a second letter to Commissioner Davidson, stating that he assumed the City's silence meant that a permit was forthcoming and thus, was going "full steam ahead" with the event. A week later, by letter dated November 13, 1991, Commissioner Davidson informed Rabbi Flamer that the City had denied his request to erect a menorah in Main, but invited Rabbi Flamer to meet with him to discuss "other locations that would be more suitable," and "matters such as plan specifications for the Menorah, hold harmless clauses for the City, adequate insurance, and security measures". Although the letter stated that the distribution of food and the amplification of music in connection with Rabbi Flamer's proposed event would be inappropriate, it offered no explanation as to why the City had denied Rabbi Flamer's request. Later, during his deposition, Commissioner Davidson explained that recent vandalism in Main had prompted the City to deny Rabbi Flamer's request.

 On or about November 26, 1991, Rabbi Flamer and Commissioner Davidson, joined by Joseph Nicoletti, the Deputy Commissioner of the White Plains Department of Public Works, met at Tibbits. Deputy Commissioner Nicoletti inspected Rabbi Flamer's menorah, and informed him that one of the menorah's electrical prongs was defective. Rabbi Flamer agreed to change the prong and provide proof of insurance. While at Tibbits, Commissioner Davidson, Rabbi Flamer and Deputy Commissioner Nicoletti discussed potential locations in Tibbits for placement of the menorah. At trial, the City argued that both the gazebo and fountain areas of Tibbits were too small to hold a combined holiday tree and menorah display. The City maintains that the only other site capable of displaying the menorah with adequate lighting is an adjacent grass area, separated from the gazebo and fountain by a pathway. The City does not allege that the grass area can not accommodate both a menorah and a holiday tree.

 After the meeting at Tibbits, Rabbi Flamer believed that, assuming his insurance was in order and the menorah plug was replaced, the City would issue a permit for the proposed menorah in Tibbits the following Friday, on November 29, 1991. Hence, prior to that date. Rabbi Flamer replaced the electrical plug and confirmed that Deputy Commissioner Nicoletti had received a copy of his insurance policy.

 The day after Rabbi Flamer met Commissioner Davidson in the park, a newspaper article appeared in the Gannett Newspapers, Reporter Dispatch, entitled "City Will Let Menorah Stand in the Park." The article reported that the City planned to allow a Hasidic group to erect a menorah in Tibbits, next to a holiday tree. This article sparked great controversy within the Jewish community, and prompted vocal opposition by a number of rabbis in the Westchester community who believed that the Chanukah holiday should be celebrated in private settings, such as homes and synagogues, and not in public spaces, such as parks.

 On November 29, 1991, Mayor Del Vecchio called a special meeting of the Common Council to discuss Rabbi Flamer's request. The special meeting was held two days later on December 1, but because of the lack of a quorum, was adjourned to the following day.

 Shortly around sundown on December 1, 1991, the first day of Chanukah, Rabbi Flamer and approximately thirty other individuals gathered in Tibbits to celebrate the beginning of Chanukah. Rabbi Flamer brought a two and one-half foot menorah, which was not lit. The gathering lasted approximately twenty minutes, during which time the assembled group performed several traditional dances. The City did not prevent Rabbi Flamer from using Tibbits for ...

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