Occupy Wall Street Puts Spotlight on Privately Owned Public Spaces

By Jill Colvin on October 10, 2011 1:50pm | Updated on October 11, 2011 10:03am

One of Midtown's privately-owned public spaces.
One of Midtown's privately-owned public spaces.
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DNAinfo/Jill Colvin

MANHATTAN — For more than three weeks, Wall Street protesters have occupied Zuccotti Park, camped out on mattresses 24-hours a day, with no signs of packing up.

But as police spend millions on overtime and local residents’ frustrations boil, demonstrators’ ability to remain indefinitely is being aided by a little-known city program that’s now under the spotlight.

Despite its name and appearance, Zuccotti is not actually a city park, but a privately owned plaza that developer Brookfield Office Properties agreed to build and maintain in exchange for zoning concessions.

There are more than 500 such privately owned public spaces — or “POPs” — across the city, which were built as part of a program launched in 1961 to encourage developers to provide outdoor and indoor spaces for public use.

But just what authority the city, police — and even owners — have over what happens in these spaces is foggy, according to experts in city planning and zoning regulations.

As part of Brookfield’s original contract, the plaza is required to be open to the public 24-hours-a-day, seven-days-a-week. City parks, on the other hand, close at certain times.

“Whether intentionally or inadvertently, [choosing Zuccotti] was a very intelligent tactical move on their part,” said Jerold Kayden, a professor of urban planning and design at Harvard University, who co-authored Privately Owned Public Space: The New York City Experience, the definitive guide to POPs in the city.

According to Police Commissioner Ray Kelly, the regulations mean neither police nor Brookfield have the power to kick the protesters out.

“Right now, they are there and the owners of that plaza don’t have the legal right to reject them,” Kelly told reporters last week when quizzed about the city’s options, suggesting that the only way to boot the demonstrators might be through the courts.

But others say the situation is more complicated.

Kayden said that while Brookfield can't prevent the protesters — who are members of the public — from lawfully using the park, POP owners do have the right to impose reasonable rules and regulations to manage the spaces.

Manhattan has several hundred privately-owned public spaces.
Manhattan has several hundred privately-owned public spaces.
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Department of City Planning

In an effort to better control Zuccotti, Brookfield recently posted a list of regulations inside the park banning activity such as lying down on benches, sitting areas and walkways and prohibiting tarps and sleeping bags.

According to the Department of City Planning, which regulates the plazas, POP owners frequently set rules like these, which are typically enforced by private security staff.

A department spokeswoman said that it is the department’s understanding that if a member of the public fails to comply with the rules, an owner could decide to treat that failure as unlawful trespassing, which would be grounds to push them out.

But others say the regulations aren't clear cut.

“I don’t think this has ever been tested before,” said Brian Nesin, director of Friends of Privately Owned Public Spaces, a group that aims to raise public awareness about the spaces.

“It’s not very clear what the rules of operation are,” he said.

Brookfield spokeswoman Melissa Coley declined to comment on whether the company has taken or is considering taking steps to push the protesters out. But in a statement, she criticized the demonstrators for failing to heed the rules.

"Unfortunately, many of the individuals currently occupying the grounds are ignoring these basic yet necessary requirements, which interferes with the use of the park by others, including local residents, office workers and visitors," she said.

She added that as a result of the occupation, the park hasn’t been cleaned since Friday, Sept. 16.

“Sanitary conditions have reached unacceptable levels,” she said.

Raju Mann, director of planning at the Municipal Art Society of New York, who was formerly with the Department of City Planning, said that one option for Brookfield could be to file an application with that department to modify the plaza's operating hours to close at at night — a process that could take several weeks or months, he said.

Brookfield had not applied for any such modification as of Monday morning, City Planning records showed.

But Kayden argued that just because Brookfield may have the right to try to kick the protesters out, doesn't mean they will.

“Having the legal power doesn’t mean you should execute your legal power,” he said, explaining that there are obvious reasons why Brookfield would want to avoid a confrontation with members of the movement, which has now spread to cities across the country, and has attracted attention from everyone from President Barack Obama to documentary filmmaker Michael Moore.

“I think what’s going on is a tactical, even strategic calculation on everybody’s part,” he said. “Everybody understands the high stakes.”

But while he acknowledged that some might have concerns with the occupation, including the fact that other members of the public have been shut out of the park, he argued the protesters are using the space exactly as it was meant to be used.

“Political use of public space is one of the most time-honored uses,” he said, versus, for instance, using the park to eat a sandwich.

Nesin, meanwhile, said that what he’s most concerned about as tensions continue to rise that the occupation will lead owners of other POPs around the city to call for new, tougher regulations that will limit public access, which he said also happened post-9/11.

“I don’t want this to be an excuse to restrict their use,” he said.

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