POTSDAM, N.Y. (WWNY) - Hank Robar’s infamous toilet gardens aren’t going anywhere for the time being.
Even though the village is trying to remove the potties with plants, federal court records show the village is prepared to wait until a federal judge makes a decision in the case.
Robar has gone to federal court to stop the village.
It’s the latest skirmish in a 15 year war between Robar and the village which began when Robar tried to sell some property for a Dunkin' Donuts, but village officials wouldn’t grant the necessary permits. That prompted Robar to begin putting toilets on the front lawns of several properties he owns in Potsdam, and put plastic flowers in the toilets.
In his federal court lawsuit, Robar has said he did it at first as a political protest, but grew to like the toilet gardens simply as art.
The village’s lawyers argue Robar’s lawsuit should be thrown out for several reasons. The village is using a law it passed governing removal of junk from peoples' properties, a law the lawyers say “is to protect the general public safety and welfare,” and that Robar isn’t being singled out.
Robar “can exhibit his “junk” out of public view... or by properly screening same,” the lawyers wrote in legal papers filed this week.
"Therefore, the JSL (the junk law) and its prohibitions bear no direct relationship to Plaintiff’s alleged “art” or “political expression.” "
But is it art?
The village’s lawyers answer: yes and no, but mostly no.
The village’s lawyers argue that - under the law - for the toilet gardens to qualify as a “work of visual art” they’d have to be “a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author..."
What the toilet gardens are, the village lawyers argue, is something called “applied art” - the flowers - put into a “common utilitarian object," the toilets.
That, the lawyers claim, describes Hank Robar’s toilet gardens perfectly.
The village’s lawyers argue that Robar’s toilet gardens will hurt other property values in the village, and that it could discourage families from sending their college-age children to SUNY Potsdam or Clarkson University.
The lawyers also argue the mayor, deputy mayor and code enforcement officer should be dropped from the lawsuit, leaving only the village administrator, Greg Thompson, and that in any event, all of them are protected under the law because they have “qualified immunity.”
The judge has given both sides until next Monday to either agree or disagree with his plan to combine Robar’s request for a preliminary injunction and temporary restraining order. Basically, the judge wants to move the case ahead quickly and settle as many of the issues as he can.