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Public Space, Private Rules: The Legal Netherworld of Occupy Wall Street

Had the protest begun almost anywhere else in New York City, it almost certainly would have been shut down far sooner.

UPDATE: The private owners of Zuccotti park blinked early this morning, postponing their plans to clean the park and rescinding their request for assistance from the NYPD.

The New York Police Department's announcement that officers will remove Occupy Wall Street protesters from Zuccotti Park at 7 a.m. tomorrow is a reminder that the movement was lucky to stumble into that location. Had the protest begun almost anywhere else in New York City, it almost certainly would have been shut down far sooner.

The three-plus-week-old protest has allowed New York to make use one of its least effective policies. Zuccotti Park is one of New York’s 500-plus “privately owned public spaces,” but most are so useless and unattractive that no one even thinks of them as parks at all.

The POPS program was created in 1961 to add much-needed park space to Manhattan’s unrelenting street grid. The city offered a deal to real estate developers: create a public space on your property, and earn the ability to extend the building 20 percent higher. Zuccotti Park—originally known as Liberty Park before it was renamed after the CEO of its corporate owner—was built in 1968 under such an agreement.

Developers were quick to jump on the opportunity to squeeze more space (and thus profit) into Manhattan’s expensive, narrow land plots. Some buildings created two spaces: Zuccotti Park, for example, was built as part of the deal to construct 1 Liberty Plaza, across Liberty Street. That building got its height bonus for putting a typically useless and unattractive “plaza,” ringed with concrete pillars, around the structure itself. But in exchange for further special zoning permits, such as an exemption from a requirement that the building be set back for light and air, the company also built the park across the street.

For many years, the city government imposed no requirements on how the spaces were to be designed and decorated. Unsurprisingly, developers took that as license to do as little as possible. Thus, many POPS are nothing more than an empty swath of concrete in front of an office tower, breaking up an aesthetically consistent row of buildings. For examples of POPS at their worst, check out Park Avenue in Midtown or the building across Broadway from Zuccotti Park. A 2007 study by the New York City Department of City Planning, the Municipal Art Society and Jerold Kayden, a professor of urban planning at Harvard, found that 41 percent of POPS "are of marginal utility." At the other end of the spectrum, only "16 percent of the spaces are actively used as regional destinations or neighborhood gathering spaces."

Over the years, the city government has tightened the rules governing the design of new public spaces. Some existing ones were spruced up, including Zuccotti in 2005. “It was an amenity that could be used,” says Kayden. “It had seating areas and trees. It wasn’t a stellar, outstanding space, but it was not among the worst.

And, as the Occupy Wall Street protesters discovered, being a POPS gave it one distinct advantage over most public spaces: being privately owned means it inhabits a legal netherworld. “The law is pretty clear about using publicly owned public spaces for protests,” says Eric Goldwyn, a Ph.D. student in urban planning at Columbia University. “You need to apply for permits with the NYPD. If you want to hold a rally in Central Park, or if you want to close a sidewalk, there’s a clear process to follow, otherwise you get arrested. But with public/private spaces it’s totally unclear.” For four weeks the protesters camped out overnight, which is illegal in city-owned parks.

So by squatting in a park that is open to the public 24 hours per day, but not subject to the same laws and legal precedents as city-owned spaces, Occupy Wall Street organizers found a special niche. Brookfield, the company that owns the park, publicly complained about the protesters, but city officials maintained they lacked legal standing to eject them. Now the city has reversed course, ordering protesters to leave the park Friday morning so it can be cleaned. Afterwards, protesters will be allowed to return but prohibited from staying overnight, according to NYPD.

Unlike many privately owned public spaces, Zuccotti Park has no rules allowing Brookfield to set closing times and other rules about of public usage. Until Thursday, it appeared that Brookfield might have no recourse but to apply to the city government for permission to set such rules. Instead, the city government announced its own intention to ban staying overnight in the park, but its legal rationale is not clear.

If Occupy Wall Street protesters insist on staying overnight despite the ban, they may be forcibly removed or arrested, leaving it to the legal system to sort things out. How the courts will weigh the city's interest in keeping the park clean and usable for regular residents of the neighborhood against the benefits of using public space as for democratic discourse is anyone's guess.

It should come as no surprise that the city decided to act: Mayor Michael Bloomberg has been hostile in dealing with protesters throughout his three terms in office. In the run-up to the Iraq War and during the 2004 Republican National Convention, Bloomberg inexplicably denied reasonable protest permit requests, used metal gates to pen protesters, and had hundreds arrested without the evidence to sustain any charges. When Occupy Wall Street ventured onto the Brooklyn Bridge, the police arrested 700 non-violent protesters. But for a brief, shining moment, activists used the byproduct of a questionable city program to tie his authoritarian hands.

Photo via (cc) Flickr user BlaisOne

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