You can't common what you can't see: towards a restorative polycentrism in the governance of our cities.

Author:Cahn, Amy Laura

Introduction I. Community Land Stewards in the Twentieth Century North American City A. Why Garden? B. Are Community Gardens "Commons"? C. Visiting the Greens 1. Philadelphia, 1937-2005 2. New York, 1974-1998 II. The Invisibility of Community-Stewarded Space A. Tax Place: Debt Is More Valuable Than a Garden 1. Philadelphia, 2005-2015 2. "Interim Use" Never "Highest and Best" 3. "Vacancy" 4. New York, 1999-2015: Deciding at a Distance B. If Invisible, the Potential Commons Is Always Out of Reach C. Enclosure Is a Threat to All Commons III. Interventions to Hold Enclosure at Bay A. Make Existing Community-Stewarded Places Visible and Expose Pathways to Access 1. Philadelphia, 2016 2. New York, 2016 Conclusion A. Root the Work in the History of the Place B. Counter Narratives About Urban Spaces C. Be Explicit About Race and Equity, Leverage Privilege, and Support People of Color in Leadership D. Ensure Voices of Land Stewards Are at the Center INTRODUCTION

"Commons" emerge out of and are enacted through sustained patterns of local use, through collective actions that give life to and re-assign the roles of urban spaces, and through individual investments of time, love, and energy. (1) Such management practices are voluntary, adaptive, inclusive, and available to all. (2) Creating commons--or commoning--makes place out of space, while asserting the "right to not be excluded" from the use of that place. (3)

A commons emerges not just within the city, but as the city itself. Cities are spaces that are intensely used and invested-in by millions of people, transformed from simply locations on a map into places with value through collective creative action. In the words of Sheila Foster and Christian Iaione, the city is "a shared resource that belongs to all of its inhabitants." (4) It draws its "wealth ... from the collective actions of [those] inhabitants." (5)

Use of shared resources is often the source of tension. The city is no exception (6) and a city's most marginalized residents often have the least acknowledged claim to place and urban space. (7) The framework of the city as commons provides a framework to respond to the question "who owns the city?" (8) at a moment when the additional issues of "who should have the benefit of the city?" and "what kind of city it should be?" (9) are deeply contested.

There are limits to the urban commons frame. Yet, as Foster and Iaione have discussed, "what the commons can do, both legally and conceptually, is to stake out the claim that some socially produced common goods are as essential to communities as water and air and thus should be similarly protected." (10)

In this Article, we contend that we must recognize and protect the commons not simply because the commons resources themselves are essential. First, it is just to ensure that the value that is created through commoning is not captured by private market actors to the exclusion and/or detriment of the residents who create that value. Second, being able to see what is a common is key to maintaining access to and enhancing the use of essential resources. (11) And finally, making visible and protecting places created through processes of commoning are equitable (re)distributive responses to a history of race-based divestment and neglect.

When Mrs. Mabel Wilson (12) moved to South Philadelphia's 2500 block of Alter Street in Grays Ferry, in 1928, she did not set out to become an urban farmer. But by the 1930s and 40s, many of Mrs. Wilson's Alter Street neighbors had died or fled the neighborhood, leaving their empty homes behind. (13) As these empty structures became dangerous to surrounding properties, the City of Philadelphia demolished them, one by one. Each left behind an abandoned parcel. (14) Thanks to the leadership of Mrs. Wilson, neighbors gathered together to transform each of those parcels into green and gardened spaces, many of which have survived, if tenuously, until this day. For several generations, these spaces have been integral as the neighborhood's commons.

Urban "commoning" (15) includes those who create the value of places by the use, distribution, and management of increasingly valuable places, from the scale of the single parcel to the scale of the city itself. The land stewards in our cities might not call them "commons," but for places that are not formally recognized, commoning offers a more just alternative to market allocation and public ownership, as well as a response to the private and public owners who originally divested from these spaces. (16)

Today, Philadelphians speak of 40,000 parcels like the abandoned ones on Alter Street. They are distributed throughout the city and concentrated in areas associated with historic disinvestment--low-income neighborhoods and neighborhoods home to predominantly Black, Puerto Rican, and immigrant communities. (17) To municipal officials and developers, these parcels became unproductive land resources once the owners of record faded from view. (18) Abandoned parcels are called "vacant," (19) but, in fact, so many are not actually empty.

Community-stewarded spaces, like community gardens, farms, and parks, have historically emerged as a direct response to abandonment, filling vacancy with neighborhood life. Located in historically marginalized neighborhoods, governed and managed without the benefit of external resources, and functioning without clear pathways to ensure legal tenure, land stewards often must operate tenuously on the edge of trespass and outside of traditional notions of private property ownership. (20)

The "commons" is best understood as a set of collective interests that support collective rights. (21) Commons are less about the use of the resource, (22) more about the right to the resource. (23) Yet, a community's rights to commons in the form of these places (24) are often not honored by outside forces. Further, a community's lack of clear rights is linked to and reinforced by the persistent lack of visibility for the common rights that emerge through use. Municipal governments often do not "see" these spaces or their creators, even as government holds legal title to the land or manages the property registration system that allows another absent entity or individual to hold title.

Invisibility heightens the risk that community-stewarded spaces will be sold and the community ejected while outside actors capture and profit from the value created through the loving labor of residents. As urban space is transformed into a commodity, whether it be through sale of a parcel or the value accrued by surrounding properties, these community spaces become the places where "enclosure"--land insecurity brought on by a market interest--is felt most directly. (25)

In this Article, we describe the mechanisms through which the community-generated wealth accumulated in our neighborhoods via community-stewarded open spaces is enclosed: captured by the market and made inaccessible to land stewards. And we present some legal and community organizing strategies to resist this enclosure. In Part I, we discuss community-managed open spaces in American cities in the context of the racialized history of twentieth-century urban space. In Part II, we explore the dimensions of invisibility that put these spaces at risk of transformation into market commodities. In Part III, we describe interventions that allow the creators of common wealth to resist its enclosure. And in Conclusion, we draw from those interventions a set of guidelines with which to move forward with accountability and in service of social justice.


    1. Why Garden?

      The existence of [vacant] areas constitutes a serious and growing menace, is injurious to the public safety, health, morals and welfare, contributes increasingly to the spread of crime, juvenile delinquency and disease, necessitates excessive and disproportionate expenditures of public funds for all forms of public service and constitutes a negative influence on adjacent properties impairing their economic soundness and stability, thereby threatening the source of public revenues. (26) Gardens and other community-managed spaces are products of a racialized history of urban space. Concentrations of abandonment and properties left in legal limbo burden already burdened places. What we refer to now as "vacant land" is the legacy of racial segregation, (27) redlining, (28) and urban renewal, (29) and more recently exacerbated by predatory lending, (30) the ensuing mortgage foreclosure crisis, and new discriminatory practices in access to credit. (31) For decades, municipal and private landowners have left acres of land in neighborhoods like Grays Ferry abandoned in cities across the Rust Belt and in the Northeast.

      The massive abandonment of individual properties in the mid-twentieth century was not coincidental, but part of a multi-faceted national housing policy that incentivized suburban and 'greenfield' housing development and purposely dis-incentivized investment in urban spaces, further disenfranchising people of color and immigrants. And this has historically been by design--the discriminatory policies and practice of investing in places that feel safe for white people to live relies on a clear separation from neighborhoods where people who are perceived as other than white live. (32) As a result, voids emerge where concentrated poverty and a lack of critical resources come together in urban centers. (33)

      One of the starkest examples of disinvestment is known as redlining. In urban centers nationwide, a Home Owners' Loan Corporation (HOLC) ratings were just one manifestation of the massive systemic barriers created to prevent Black families from obtaining access to credit and fire insurance. (34) Mortgage and insurance companies denied residents the resources needed to purchase and protect homes. (35) Lines on the HOLC maps explicitly congealed value...

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