The 'Publicization' of Private Space

Author:Sarah Schindler
Position: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
Pages:1093-1153
SUMMARY

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... (see full summary)

 
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1093
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.THE VALUE OF PUBLIC SPACE ................................................. 1100
B.AN ASIDE: PUBLIC SPACE AS ROMANTIC IDEAL OR
EXCLUSIONARY REALITY? ...................................................... 1104
C.THE PRIVATIZATION OF PUBLIC SPACE ................................... 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.WHAT ARE POPOS? ............................................................. 1114
B.WHY ALLOW DEVELOPERS TO CREATE POPOS IN
EXCHANGE FOR LARGE BUILDINGS? ........................................ 1116
C.INCENTIVE ZONING, CONDITIONAL USE PERMITS, AND THE
CREATION OF POPOS ............................................................ 1117
IV. PROBLEMS AND CONCERNS: A CRITIQUE OF PRIVATELY
OWNED PUBLIC OPEN SPACE ...................................................... 1120
A.LIMINALITY AND LEGAL STRUCTURES .................................... 1121
B.A LACK OF SUFFICIENT LEGITIMACY, DEMOCRACY, AND
GOVERNANCE ....................................................................... 1125
C.A LACK OF INCLUSION ........................................................... 1129
1.Exclusion Through Design ......................................... 1130
2.Exclusion Through Discretionary Enforcement
of Rules and Norms ..................................................... 1134
D.A LACK OF AUTHENTICITY ..................................................... 1138
V.PRIVATE SPACE AND ITS PUBLICIZATION ..................................... 1140
A.FRAMING POPOS AS PUBLICIZATION NOT PRIVATIZATION ....... 1140
B.BETTER LIVING THROUGH PUBLICIZATION: MAKING
POPOS MORE PUBLIC ........................................................... 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 f rom 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.

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