POTSDAM — Attorneys for the village moved to dismiss an ongoing lawsuit in federal court over the removal of several “toilet gardens” throughout the village.
The motion, filed in U.S. District Court Northern District of New York on Monday, argues that the suit against the village brought by the owner of Potsdam’s “toilet gardens” should be dismissed and that the judge should not grant a temporary restraining order and temporary injunction in the matter.
Last month, Frederick “Hank” Robar filed the complaint alleging that the village had violated his rights under the First and 14th Amendments to the Constitution as well as the Visual Artists Rights Act of 1990 when the Board of Trustees ordered him to remove all bathroom fixtures from each of seven properties. Mr. Robar’s suit contends that he is being unfairly targeted by the village and that his many toilets are a protected form of art and protest. He’s requesting at least $7 million in damages from the village.
Attorneys April J. Laws and Corey A. Ruggiero from Johnson & Laws LLC, Clifton Park, attempted to deconstruct Mr. Robar’s legal argument in their 31-page response.
The village argues that Mr. Robar and his “porcelain protest” were not specifically targeted last year when it adopted its junk storage law and, therefore, it is not a First Amendment violation.
“It is clear that the JSL does not prohibit Plaintiff from politically protesting or moving his “junk” to another location on his properties or with conditions (such as screening) at the location where the “junk” is currently placed,” the village’s response reads. “Thus, the JSL simply has an incidental effect on the way Plaintiff desires to express his discourse with the Village denying his SUP application more than fifteen (15) years ago, but does not prevent it. Clearly, the legislative intent of the JSL is to protect the health and safety of the public as well as to preserve the character of the Village, maintain the Village’s appearance at the highest level, and to preserve property values.”
The village also contends that it did not selectively enforce the junk storage law to specifically target Mr. Robar. The response notes that the village has issued notices to comply with the junk storage law to other village landowners. It also argues that Mr. Robar lacks evidence to support the accusation that village officials acted with malice in passing the junk storage law and ordering Mr. Robar to comply.
Perhaps the most nuanced portion of the argument is over the Visual Artists Rights Act and whether Mr. Robar’s toilets constitute art under the law. The village, not surprisingly, doesn’t believe it does.
In their response, attorneys for the village claim that art protected under VARA must be copyrightable and cannot be “applied art” or the ornamentation “to otherwise utilitarian objects.” To this degree they contend that Mr. Robar’s “porcelain planters” are not sculptures and that he doesn’t assert the collection of all the gardens is, as a whole, art.
In its Monday filing, the village also is seeking to have several defendants removed from the lawsuit. In his original complaint, Mr. Robar named Potsdam Mayor Reinhold J. Tischler, Code Enforcement Officer Lisa Newby, Deputy Mayor Steve Warr and Administrator Greg L. Thompson. The village is asking that the suit be dismissed for all of those defendants except Mr. Thompson, arguing that the other individuals didn’t have any “personal involvement” in the matter. Mr. Thompson is not included because he wrote two letters to Mr. Robar soon after the passage of the junk storage law informing him that the ordinance applied to his properties.
Should the first request to dismiss fail, the village response then asks that all officials be entitled to qualified immunity because they were acting in their official capacity.
After filing the motion to dismiss, the ball now returns to the attorneys for Mr. Robar to respond within the next few weeks. A hearing date is currently set before Senior Judge Lawrence E. Kahn, Albany, for Oct. 16.
“It is within the rights of the Village to protect their interests,” Mr. Robar’s attorney, Mark F. Snider said in a statement to the Times. “They may slow the wheels of justice for Mr. Robar, but those wheels continue to grind ever slowly.”
Attorneys for both the village did not immediately respond to a request for comment Tuesday.
The lawsuit is the latest in nearly 15 years of back-and-forth between the village and Mr. Robar. The latter began his “porcelain protest” shortly after he was denied a special use permit allowing him to sell a property on Market Street to a man who wanted to build a Dunkin Donuts on the site. The toilet gardens have since expanded to six other parts of the village. In July, the village Board of Trustees, after a public hearing, ordered Mr. Robar to remove the fixtures on or before Sept. 1. That was followed by Mr. Robar formally filing the lawsuit and requesting a temporary restraining order and preliminary injunction last month.