In future years, people will remember 2011 as the year in which physical public space reclaimed its lofty status in the public sphere thanks to the audacious actions of engaged individuals.
From Tahrir Square to Zuccotti Park, physical public space has aggressively reminded the world of its centrality in accommodating and nurturing political debate and protest.
Public spaces come in many flavors. They include city-owned streets, sidewalks, and parks. In New York and other cities, they also include a zoning-created variety known as privately owned public space. Through a technique known as incentive zoning, New York since 1961 has encouraged developers of office and residential skyscrapers to provide a now-substantial array of close to 550 plazas, arcades, and indoor spaces in return for valuable zoning concessions. The most valuable concession of all has been bonus floor area, and the City has thus granted more than 20 million square feet of extra building area for developers. Although the spaces differ in terms of the legal specifics that created them, the signature requirement is that they be usable by the public.
Zuccotti Park is one such privately owned public space, although referring to it as one in 550 understates the seismic role it is currently playing. The many actors in this unfolding drama – the activists of Occupy Wall Street using the space, space-owner Brookfield Properties, various agencies and officials of the City—including the police—as well as neighbors and other members of the public have a stake in understanding the possibilities and limitations for continued occupation. Initially at least, such greater understanding requires unearthing and characterizing the specific legal actions that created the space.
Zuccotti Park owes its existence to an incentive zoning transaction memorialized in a 1968 Special Permit that traded zoning concessions other than a floor area bonus in return for this public space variously referred to as a “plaza,” an “open landscaped area with trees, sitting areas and the necessary lighting,” and “what amounts to a permanent open park in the heart of one of the most densely built-up areas in the world.” The Special Permit notes, importantly, that it is “principally because of this public benefit that the Commission has viewed this application with favor.” Although the developer simultaneously secured over 303,000 square foot of bonus floor area for its office tower, that bonus was actually for another plaza to the north that wraps around the tower, and not for Zuccotti Park. In 2005, the City approved an application from the current owner, Brookfield, to modify the space through such improvements as “the planting of 55 honey locust trees, the addition of 1,010 linear feet of fixed seating, 16 fixed tables with fixed seats, an abstract steel sculpture and new lighting.” Brookfield also changed the name of the space from Liberty Park (how prescient) to Zuccotti Park, after the company’s United States Chairman John Zuccotti, a prominent New York City attorney and former Chair of the New York City Planning Commission.
Given its legal provenance, how should one judge the current use of Zuccotti Park by the hundreds of people constituting Occupy Wall Street? The true answer is, no one knows. Unlike most other outdoor privately owned public spaces in New York City, Zuccotti Park is a one-off, sui generis as lawyers would say. Zuccotti Park is simply what the Special Permit says it is, a “large and useful plaza” that must have amenities of seating, tables, trees, lighting and public art. The nature of permissible public use, including the legal authority of the owner to impose its own rules to govern the conduct of those within the space, is undefined. The Zoning Resolution does provide some comparative guidance with regard to four expressly defined categories of plazas, including the “plaza” (1961), “urban plaza” (1975), “residential plaza (1977), and “public plaza” (2005). Believe it or not, different rules attach to each of these categories of plaza, and their definitions reflect a relentless chronological march introducing tougher design and amenity requirements to remedy the evident inadequacies of spaces provided under existing law. The grandparent of all privately owned public spaces, the plain vanilla “plaza” introduced in the City’s 1961 Zoning Resolution, initially required owners to make the space “accessible to the public at all times,” but subsequent zoning amendments, motivated in large measure by problems associated with overnight use of spaces by homeless individuals, led the City to permit owners of the various plaza categories to apply for authorization for nighttime closings. Many owners have applied for and secured such authorizations.
No one knows for sure what the owner of Zuccotti Park would like to do with its space, although it hardly stretches the imagination to believe it may like Occupy Wall Street to, well, occupy Wall Street, and not its park. If it so desired, could the owner legally dislodge Occupy Wall Street? Could it, for example, apply for and receive an authorization from the City for a nighttime closing under existing law? The answer is a clear and unambiguous maybe. Under the letter of the law, the answer is no. Section 37-727 of the Zoning Resolution states that the “City Planning Commission may authorize the closing during certain nighttime hours of an existing or new publicly accessible open area, if the Commission finds,” among other things, that “(a) such existing publicly accessible open area has been open to the public a minimum of one year or there are significant operational or safety issues documented” and “(b) such closing is necessary for public safety within the publicly accessible open area and maintenance of the public open areas as documented by the applicant.” But because the phrase “publicly accessible open area” is a defined term in the Zoning Resolution that refers strictly and only to the four articulated plaza types (plaza, urban plaza, residential plaza, public plaza), and since Zuccotti Park is none of the above, this provision is by plain language unavailable to the owner or City. The spirit of the law, and an accommodating City interpretation, would suggest that owners of Zuccotti Park should enjoy the same ability to apply for an authorization of a nighttime closing as owners of similar plazas created pursuant to the existing zoning categories.
Could Brookfield impose its own rules of conduct that would limit or even prohibit Occupy Wall Street from using the space, effectively rendering the current use a trespass? To answer this question, I need only quote a passage from Privately Owned Public Space: The New York City Experience, a book I wrote more than a decade ago in collaboration with the New York City Department of City Planning and the Municipal Art Society of New York:
The Department of City Planning has taken the position that an owner may prescribe “reasonable” rules of conduct. In determining the definition of reasonable, the Department has looked to the rules of conduct applicable in City-owned parks for general guidance. Thus, for example, the Department has considered a dog leash requirement, a ban on the consumption of alcoholic beverages, or a prohibition on sleeping in an indoor space to be reasonable. On the other hand, suggestions by owners that they be allowed to exclude “undesirable” persons on some basis other than improper conduct, or to set limits on the amount of time a member of the public may sit in or otherwise use a space, have been considered unreasonable…Other fact patterns have and will arise to help sharpen the notion of reasonableness…What about rules against listening to a radio, playing a musical instrument, or in-line skating? May an owner bar political candidates, organizational representatives, or activist individuals from seeking signatures for a petition or from handing out literature?
The open question remains, then, could the owner adopt a rule allowing it to oust or severely limit the activities of Occupy Wall Street? Surely any rule crudely prohibiting political activity within the space should fail the reasonableness test. And there is no need to impress the U.S. Constitution’s First Amendment Free Speech clause to support this argument, especially since the First Amendment applies only to government, not private, action. And if it did apply, by deeming Brookfield effectively, a government actor, content-neutral rules regulating the time, place, and manner of political activity would likely be constitutionally legitimate. Instead, one need only recognize that there is hardly a more time-honored use of public space than as platform for political activity. Cities are about expression of ideas, and what better way, even in this digital age, to express ideas than to gather in one place, body to body, and express them.
Ironically, it is Occupy Wall Street’s enormous success that presents the greatest legal challenge. Its footprint of occupation is, to state the obvious, dominant. Yes, people unassociated with Occupy Wall Street may (and do) pass through the space, wander about, chat with movement members, take photographs, eat a sandwich, and read a book. But this recitation glosses over the reality that Zuccotti Park has been literally taken over by one group in a way that could easily mitigate the enjoyment of the public space by other members of the public. For those seeking the quiet, passive enjoyment of what had been, they are out of luck. For other groups, political or otherwise, that may be inspired to seek a public space home of their own (think political competitors, flash mobs, organized skateboarders), they face a no vacancy sign. Brookfield’s privately owned public space has become privately owned, de facto, by Occupy Wall Street.
This should not, I hope, offend Occupy Wall Street. Its members are equally members of the public with a right to use Zuccotti Park, and they have exercised that right with civility, humanity, and conviction. But as time goes by, they should ask themselves whether, in satisfying their own needs, they are preventing multiple publics from doing the same. First in time should not become first in right, now and forever more. One potential solution would involve a scheduled reduction of their footprint over time, freeing up part of the space for other users. After all, Speakers’ Corner in London’s Hyde Park is just that, a corner of Hyde Park. Spatial pluralism may be a dilution, but it respectfully responds to the needs of many publics seeking to take advantage of Zuccotti Park.
The City, privately owned public space owners and their representatives, civic groups like the Municipal Art Society, and other interested individuals should seize the moment to commence a public conversation on how best to utilize New York’s remarkable archipelago of plazas, arcades, and indoor spaces scattered throughout downtown, midtown, and the upper east and west sides of Manhattan. As recounted in Privately Owned Public Space, far too many of these spaces have been disappointments, effectively orphaned by private and public inattention or worse. Occupy Wall Street was one of the first to recognize that an orphan is a terrible thing to waste.
Jerold Kayden is the Frank Backus Williams Professor of Urban Planning and Design and Director of the Master in Urban Planning Degree Program at the Harvard University Graduate School of Design. In 2005, he founded Advocates for Privately Owned Public Space (APOPS), a not-for-profit organization.