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In the Matter of the Petition of the City of Albany v. Occupy Albany

September 27, 2012

IN THE MATTER OF THE PETITION OF THE CITY OF ALBANY, PETITIONER,
v.
OCCUPY ALBANY, OCCUPY ALBANY LEGAL GROUP, MARK MISHLER, AS LEGAL REPRESENTATIVE OF OCCUPY ALBANY, JOHN DOE, JANE DOE, RESPONDENTS.



The opinion of the court was delivered by: Norman A. Mordue, U.S. District Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

In October 2011, members of the Occupy Albany movement began a political protest in Academy Park ("the Park") in Albany, New York. The protest evolved into an encampment; group members installed tents and began sleeping in the Park. On December 22, 2011, the City of Albany ("the City"), petitioner, filed a special proceeding in the Supreme Court for the State of New York for Albany County along with a request for a temporary restraining order and preliminary injunction to enjoin Occupy Albany, Occupy Albany Legal Group, Mark Mishler, John Doe and Jane Doe ("Occupy Albany"), respondents, from camping, tenting or sleeping in the Park. The state court granted the City's request and issued an order requiring respondents to vacate the Park. On December 28, 2011, respondents removed this case to federal court pursuant to 28 U.S.C. § 1331, on the basis that the City's petition pleaded First Amendment issues. Dkt. No. 1. The City moves to remand the case back to the state court on the basis that its reference to the First Amendment in the petition as a potential federal defense does not provide the Court with subject matter jurisdiction. Dkt. No. 6. Respondents oppose this motion.

II. BACKGROUND*fn1

A. Occupy Albany

According to the notice of removal, Occupy Albany is: part of a national protest movement against inequality in political representation; the failure of governmental bodies from the federal level to the local level to address the economic hardship millions of Americans are suffering and to seek reform of the political system in order to eliminate these injustices. An integral part of these nation-wide "Occupy" protests, including in Albany, has been the establishment of 24 hour encampments in public spaces to highlight the urgency of the crisis faced by this country and to further the goals of protected speech, protected peaceful assembly, protected petitioning of the government for redress of grievance and protected consultation for the public good.

B. Academy Park

According to the petition, Academy Park is located "in the center of an urban area an . . . within" a historic district in Albany, New York. It is surrounded by a number of historic buildings including the New York State Court of Appeals and the New York State Capitol.

The petition asserts that in the interest of preserving the Academy Park area and the surrounding structures, the Albany City Code prohibits any person from making a material change to the appearance of the property without obtaining a certificate of appropriateness from the Historic Resources Commission and a building permit from the Division of Building and Codes. ALBANY, N.Y., CODE § 42-90. Additionally, the design and scale of any alteration must be compatible with the surrounding buildings. ALBANY, N.Y., CODE § 42-91.

The City code contains several provisions relevant to the use of the Park. It sets the Park's hours: sunrise to 11:00 p.m. from May to October and sunrise to 10:00 p.m. from November to April. ALBANY, N.Y., CODE § 251-5. It prohibits the gathering of a group larger than twenty five people for an event or demonstration in a park without a permit. Id. at § 251-19. It also prohibits the "treading down, trampling or injuring of grass" within the park and prohibits persons from "lying upon any part of the park designated for growing grass". Id. § 251-4.

C. Academy Park Encampment

According to the petition, on October 21, 2011, without contacting the City Planning

Department or applying for a permit or "certificate of appropriateness", Occupy Albany began using the Park for a political protest. Occupy Albany members installed tents, canopies, a library, port-a-johns, space heaters, open flame cooking devices, and generators and began sleeping in the Park.

On or about October 22, 2011, the City district attorney stated that he would not prosecute any person that was arrested for violating the curfew within Academy Park.

On or about October 31, 2011, representatives from the City met with respondents "to discuss health and safety concerns" and "the drafting of a memorandum of understanding" between the parties about the use of the Park. The parties could not reach an agreement, however, and the City advised respondents that "it planned to perform a health and fire safety inspection" in the Park on November 2, 2011.

On November 2, 2011, members of the Albany Fire Department, including Fire Chief Robert Forezzi, Deputy Chief of Fire and Emergency Services, Francis J. Nerney, Jr., and Jeffrey Jamison, Esq., the Director of the City Division of Buildings and Codes, inspected the Park and met with representatives of Occupy Albany. Deputy Chief Nerney noted, inter alia, that: tents were too close together and raised the risk of "fire spread"; self standing heaters were not secured; food storage containers were open and could lead to varmints; the generator's location raised the risk of carbon monoxide poisoning; gas cans were too close to the generator; port-a-johns needed to be pumped twice per week; and walkways needed to be cleared of clothes and suitcases. The City's inspectors informed Occupy Albany's representatives of the hazards and violations they had found in the encampment.

Subsequently, the City met with representatives of Occupy Albany to discuss the health and safety issues identified during the inspection "and to also set parameters for an agreement between the parties for use of the Park." They did not reach a resolution and the City informed Occupy Albany representatives that there would be "a follow up inspection for compliance with fire, health and safety codes."

When Chief Forezzi and Director Jamison inspected the park again on November 14, 2011, they noted: "[a]pproximately 80 tents - concerns with proximity and fire spread"; "[g]enerator is not completely removed from brush and combustibles - must remove and secure in appropriate area"; "[f]uel for the generator and heaters must be completely removed from the site [and] fuel cans must be labeled"; "[n]eed documentation of porta-john service - strong odor";

[e]rection of large tent bring additional concerns and would require a permit per NYS code"; "[l]eaf piles must be removed" and "may not be used as insulation surrounding tents"; [r]eflective cones must be placed by the propane heaters to . . . warn of tripping hazards"; "[r]ope/line/wiring from light poles to tent must be removed"; "[m]ust remove wooden structure"; [m]ust remove garbage daily (varmint and rodent concerns)"; and "[t]ents should be removed from the Elk Street area of the park to provided [sic] access for residents". The inspectors notified Occupy Albany's representatives of these violations informed them "that these violations" had to "be abated immediately" because they "were life safety issues."

After the November 14, 2011 inspection: "Communications and the ability to reach an agreement stalled. The encampment grew. Additional complaints were received by the City of ongoing code violations within the Park."

The City inspected the park again on December 1, 2011. " The inspection revealed that the respondents failed to abate any of the earlier violations observed during the first two inspections . . . . [and] that the encampment grew and more violations were present." As a result, on December 2, 2011, Director Jamison issued a "Notice and Order" to "Cease and Desist". The Order stated:

TAKE NOTICE that the tenting, encampment and/or occupation by Occupy Albany and/or specific individuals at the premises known as Academy Park located in the City of Albany, NY has been inspected by the Department of Fire, Emergency and

Building Services and has been determined to be in violation of Albany City Code, the New York State Uniform Fire Prevention and Building Code.

BE ADVISED an investigation was performed by the Department on November 2, 2011, November 14, 2011 and December 1, 2011. The inspection and ...


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