LAND USE REGULATION AS A FRAMEWORK TO CREATE PUBLIC SPACE FOR SPEECH AND EXPRESSION IN THE EVOLVING AND RECONCEPTUALIZED SHOPPING MALL OF THE TWENTY-FIRST CENTURY.

• Author: Korngold, Gerald

ABSTRACT

Much has been written lately about the "death" of malls and large-scale shopping centers. The data show, however, that the great numbers of these malls and centers are not going extinct, but rather are undergoing an evolution from the fortress-type, retail-focused mall of the 1970s to a twenty-first century model better attuned to current tastes of citizens and consumers. There are indeed significant challenges, including purchasing trends, troubled brick and mortar retail, increased online sales, and living choices. But despite some shock-value headlines, the data show that the number of malls and large centers continue to increase. Moreover, owners are reconceptualizing the mall and large centers to better position them for economic challenges. New manifestations include the mall as an "experience" beyond retail, lifestyle centers, and mixed-use, town center types of shopping centers. Coupled with some indicators that the move to cities has reversed and the unknown future of internet commerce, it appears that while the mall must evolve and is doing so, quality properties are far from dead.

This Article traces the rise of, current challenges to, and responses for the mall and large-scale shopping centers. It argues that these entities have been a central locus for community interactions and that their twenty-first century iterations may make them even more important. Malls and large-scale shopping centers have become central points at the expense of downtown shopping districts, where true public space was available for free speech and expression necessary for democratic government. This Article shows that in drawing people away from the traditional downtowns, malls have consumed this key civic capital without compensating the municipality. In essence, this is no different than a developer utilizing community infrastructure such as local roads without providing compensation and creating externalities for the town to pay for. Thus, malls and large centers have an obligation to provide space for free public expression and speech in their developments.

First Amendment arguments for such space have been soundly rejected in the past. This Article suggests new approaches to establish free expression in mall spaces to address current needs and the likely increased civic centrality of some of the "new" malls and shopping centers in this century. It suggests exactions, incentive zoning, and community benefits agreements as strong alternatives, and examines the advantages and disadvantages of each to the public, government, and mall developers and owners. Some of these solutions are mandatory-imposed by government on the developer--while others are more consensual. In addition to developing the legal methods for establishing civic free space, this Article makes an additional contribution. By establishing the legal rules of the game, municipalities and developers will be able to negotiate consensual agreements that provide for public expression space but also protect the owner's business goals; such agreements that align the parties' interests may ultimately be the best solution.

"The regional shopping center must, besides performing its commercial function, fill the vacuum created by the absence of social, cultural, and civic crystallization points in our vast suburban areas." (1)

CONTENTS INTRODUCTION I. THE EVOLUTION OF THE MALL AND LARGE SHOPPING CENTER A. Shopping Districts: From Earlier to Current Times B. The Development of the American Shopping Center 1. Beginnings of the Shopping Center 2. Ascendancy of the Mall 3. Current Challenges a. Threats to Business as Usual b. Possible Mitigating Factors C. The Reality: Evolution Not Death 1. Lifestyle Centers: A More Traditional Town Experience 2. Revitalizing Troubled Malls a. Creating a New Experience b. Revamping the Retail Offerings c. Repurposing the Mall II. PUBLIC SPACE AS ESSENTIAL FOR FREE SPEECH, EXPRESSION, AND DEMOCRACY A. Public Places in the American Experience B. The Importance of Public Spaces in Democracy III. MALLS AND LARGE-SCALE SHOPPING CENTER CENTERS AS THE NEW "PUBLIC" SPACE A. Malls as a Vital Communal Gathering Place 1. Malls as a Substitute for the Traditional Downtown Experience 2. No Full Digital Substitute for Face-to-Face B. Owner Control of the Mall Environment and Experience 1. Speech, Protest, Demonstrations 2. Prohibitions on Attire 3. Broad Limits on Behavior 4. Youth Curfews and Anti-Loitering IV. TRADITIONAL AND SUGGESTED ALTERNATIVE APPROACHES BROADER EXPRESSION IN THE MALL A. Traditional Attack: The First Amendment B. New Approaches for Expression in Malls 1. The Exaction Model a. Malls as Consumption of a Public Good. b. The Legal Framework c. Postscript: Exaction Power as Prelude to Negotiated Agreement 2. Incentive Zoning 3. Community Benefits Agreements C. Administering the Public Space 1. Exactions 2. Incentive Zoning 3. Community Benefits Agreements 4. General Principles of All Operating Agreements CONCLUSION INTRODUCTION

Much has been written lately about the "death" of malls and large-scale shopping centers. (2) The data show, however, that the great number of these malls and centers are not going extinct, but rather are undergoing an evolution from the fortress-type, retail-focused mall of the 1970s to a twenty-first century model better attuned to current tastes of citizens and consumers. (3) There are indeed significant challenges, including purchasing trends, troubled brick and mortar retail, increased online sales, and living choices.

Despite some shock-value headlines, the data show that the number of malls and large centers continue to increase. (4) Moreover, owners are reconceptualizing the mall and large shopping centers to better position them for economic challenges. New manifestations include the mall as an "experience" beyond retail, lifestyle centers, and mixed-use, town center types of shopping centers. (5) Coupled with some indicators that the move to cities has reversed and the unknown future of internet commerce, it appears that while the mall must evolve and is doing so, quality properties are far from dead.

This article traces the rise of, current challenges to, and responses for the mall and large-scale shopping centers. It argues that these entities have been a central locus for community interactions and that their twenty-first century iterations may make them even more important. Malls and large-scale shopping centers have become central points at the expense of downtown shopping districts, where true public space was available for free speech and expression necessary for democratic government. This Article shows that in drawing people away from the traditional downtowns, malls have consumed civic capital without compensating the municipality. Thus, malls and large centers have an obligation to provide space for free public expression and speech in their developments.

Prior attempts to claim a public right for speech in malls had been based on the First Amendment and have been rejected by the U.S. Supreme Court because malls are private property. (6) This Article suggests new approaches to establish these spaces that offer ways to deal with the increasing civic centrality of some of the malls and shopping centers of the twenty-first century but avoids the futile First Amendment route. First, a municipality can use exaction theory to obtain a right to public space; just as the consumption of civic capital like a road or sewer system requires a developer to provide compensating land or facilities to a municipality, so should the consumption of the public good of communal gathering require the dedication of compensating space. (7) Second, incentive zoning could be employed to give the mall owner advantages in its building plans in return for setting aside public space in the mall. (8) Finally, a group of citizens could negotiate a community benefits agreement with the developer to obtain the desired space in return for general support--or non-opposition--to the mall development or redevelopment. (9) These solutions run the range from mandatory actions imposed by government to consensual arrangements agreed to by the developer, and, as will be developed below, all have advantages and disadvantages.

The Article will serve to add to the dialog by offering legal theories for the public to acquire rights to free expression in malls and large shopping centers. It will also have an additional benefit: by establishing the legal rules of the game, municipalities and developers will be able to negotiate consensual agreements that provide for public expression space but also protect the owner's business goals. Such agreements that align the parties' interests may ultimately be the best solution of what may prove to be a very long-term, shared property relationship.

Part I of this Article traces the evolution of the mall and the large shopping center, current challenges, and emerging trends and reconceptualizations of the mall to respond to economic threats, and that may make it an even more central communal location. Part II shows how free public space is essential to democratic governance, and examines the strengths and weaknesses of electronic communications in this regard. Part III demonstrates how malls and large shopping centers have been key communal gathering places. At the same time, it explains that owners of this private property control speech, expression, and behavior to a great extent--to further their strategy of maximizing the consumer experience. That Part shows that government could not impose controls in the same way on public land. Part IV critiques traditional First Amendment attempts to gain public rights of expression in malls and centers and offers three better alternatives: exactions, incentive zoning, and community benefits agreements. This Part analyzes the strengths and weaknesses of each approach, and also offers insights on the operating agreement that would...