The 'Publicization' of Private Space

The “Publicization” of Private Space Sarah Schindler * ABSTRACT: Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or “POPOS.” These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This analysis is especially important because in embracing POPOS, cities have made a tradeoff—they allow developers to construct larger buildings in exchange for the provision of this publicly accessible (yet still privately owned) space. Although POPOS are the primary form of new urban public space in many areas, legal scholars have largely ignored them, and many cities have failed to educate the public about their existence. This Article suggests that POPOS regularly fail to achieve the goals of “good” public space, in part because they are often exclusionary; they only feel welcoming to certain people, and they only permit a limited number and type of activities. Thus, this Article provides suggestions for improving POPOS, by changing the laws that govern their design and use, and importing the norms that we typically associate with public space into these privately owned spaces—a process that this Article refers to as “publicization.” In this way, this Article aspires to map a path forward so that POPOS will function as a form of public space worthy of the tradeoff that cities are making. * Edward S. Godfrey Professor of Law, Associate Dean for Research, University of Maine School of Law; 2016–2017 Visiting Research Scholar, Program in Law and Public Affairs, Princeton University. This Article has benefited greatly from comments received during the Princeton University LAPA seminar and workshops at Tulane, Colorado, Suffolk, Connecticut, Tel Aviv, and Vermont law schools. Thanks also to Princeton University’s Program in Law and Public Affairs for the time and space to work on this project. I am grateful to Alison Isenberg, Randy Beck, Kathryn Abrams, Melynda Price, James Fleming, David Rabban, Kellen Zale, Dmitry Bam, Jerold Long, Dave Owen, Christian Turner, Jeff Thaler, Vanessa Casado Perez, and Chris Odinet for their helpful comments. 1094 IOWA LAW REVIEW [Vol. 103:1093 I. INTRODUCTION ........................................................................... 1095 II. PUBLIC SPACE AND ITS PRIVATIZATION ....................................... 1100 A. T HE V ALUE OF P UBLIC S PACE ................................................. 1100 B. A N A SIDE : P UBLIC S PACE AS R OMANTIC I DEAL OR E XCLUSIONARY R EALITY ? ...................................................... 1104 C. T HE P RIVATIZATION OF P UBLIC S PACE ................................... 1106 1. How Is Public Space Privatized? ................................. 1106 2. Reasons for the Privatization of Public Space ........... 1109 III. PRIVATELY OWNED PUBLIC OPEN SPACES ................................... 1114 A. W HAT A RE POPOS? ............................................................. 1114 B. W HY A LLOW D EVELOPERS TO C REATE POPOS IN E XCHANGE FOR L ARGE B UILDINGS ? ........................................ 1116 C. I NCENTIVE Z ONING , C ONDITIONAL U SE P ERMITS , AND THE C REATION OF POPOS ............................................................ 1117 IV. PROBLEMS AND CONCERNS: A CRITIQUE OF PRIVATELY OWNED PUBLIC OPEN SPACE ...................................................... 1120 A. L IMINALITY AND L EGAL S TRUCTURES .................................... 1121 B. A L ACK OF S UFFICIENT L EGITIMACY , D EMOCRACY , AND G OVERNANCE ....................................................................... 1125 C. A L ACK OF I NCLUSION ........................................................... 1129 1. Exclusion Through Design ......................................... 1130 2. Exclusion Through Discretionary Enforcement of Rules and Norms ..................................................... 1134 D. A L ACK OF A UTHENTICITY ..................................................... 1138 V. PRIVATE SPACE AND ITS PUBLICIZATION ..................................... 1140 A. F RAMING POPOS AS P UBLICIZATION NOT P RIVATIZATION ....... 1140 B. B ETTER L IVING T HROUGH P UBLICIZATION : M AKING POPOS M ORE P UBLIC ........................................................... 1141 1. Norms ........................................................................... 1142 2. Laws .............................................................................. 1146 i. Legislation/Ordinances ........................................... 1146 a. Design ............................................................ 1147 b. Use .................................................................. 1148 ii. Courts ..................................................................... 1149 VI. CONCLUSION .............................................................................. 1152 2018] THE “PUBLICIZATION” OF PRIVATE SPACE 1095 I. INTRODUCTION There is a hidden garden on Fifth Avenue in New York that is open to the public. You cannot see it from the street; it is on the fourth and fifth floors of a tall building, and there is little signage directing you to it. The garden is not open to the public just because the building owner is generous; it is open to the public because it must be. The developer provided the garden in exchange for the right to make the building taller than it otherwise could have been. Although you now know about the existence of this garden, accessing it requires a few more steps. First, you have to enter the building and put your bags through an x-ray machine. Then you have to take the escalator, if it is open (and it is often not), or the elevator, which is sometimes manned by security guards, up to the garden. 1 Even after all of this, the garden might be closed if the weather is bad. You will have to ask a security guard to be sure. This garden is an example of privately owned public space. The private owner of this particular public space? Donald Trump. The location? Trump Tower. The mention of urban public space might bring to mind a variety of images: a grand public park like San Francisco’s Golden Gate Park, the many streets and sidewalks that traverse our cities, or a plaza in front of city hall. Historically, state and local governments owned and managed properties such as these. 2 However, in a number of cities, new public space of this sort is becoming rare; frequently, newly created public space is privately owned and managed. 3 There are numerous examples of spaces that are open to the public yet owned by private entities: malls, private university campuses, and pools that require membership. But this Article focuses on a creature developed by local governments known as privately owned public open space, or “POPOS.” 4 POPOS are typically created in one of two ways: (1) They are 1. Michelle Young, The Privately Owned Public Space Inside Trump Tower Is Already Less Accessible , UNTAPPED CITIES (Dec. 9, 2016), http://untappedcities.com/2016/12/09/the-privately-owned-public-space-inside-trump-tower-is-already-less-inaccessible. 2. Some cities now contract out management of these spaces to private, nonprofit organizations. For example, Manhattan’s Central Park is managed by the Central Park Conservancy—which also provides approximately three quarters of the park’s operating budget—under a contract with New York City. About Us , CENT. PARK CONSERVANCY, http://www.centralparknyc.org/about/about-cpc (last visited Dec. 17, 2017). 3. For example, New York, San Francisco, and London have all gained new POPOS in the past few decades. See infra notes 132–35 and accompanying text (giving data showing the prevalence of POPOS). 4. While San Francisco refers to these spaces as POPOS, New York and much of the urban planning literature refers to them as POPS: privately owned public spaces. This Article will generally use the term POPOS, but will use POPS when quoting existing literature from New York. Also, though the term as defined here is singular, it will occasionally be necessary to use POPOS to refer to privately owned public open spaces (plural). The distinction should be clear from the text. 1096 IOWA LAW REVIEW [Vol. 103:1093 offered by a private developer in exchange for a density bonus, which allows the developer to build a taller or bulkier building than would otherwise be permitted under the zoning; 5 or (2) they are required as a condition of development approval. 6 The space is still privately owned, but it is legally required to be accessible to the public. The idea behind such a tradeoff is that the public space will counteract some of the negative effects of density, such as crowding or loss of light or air. While a small number of sociologists and urban theorists have studied POPOS, they have been largely ignored by legal scholars. 7 Further, the only book on the subject was written nearly two decades ago. 8 There is a growing body of literature about the privatization of public space, which is becoming more common in urban centers. 9 In many cities, the mall replaced the town square as the place where people gather and socialize. 10 More recently, as malls have grown out of favor in some areas, developers are now building new “lifestyle centers” that often resemble stylized, traditional main streets, but are effectively outdoor malls on private property. 11 Public parks are often now managed by private non-profit entities or Business Improvement Districts (“BIDs”). 12 In some cash-strapped cities, officials have sold public land to private developers, 13 and it is common to see 5. This was the case with Trump...