On November 16, 2011, police evicted Occupy Wall Street protesters from Zuccotti Park in New York City. At 1 AM, after shutting down subway entrances and streets around the park, police moved in, destroying thousands of books from the occupation’s library, beating and pepper-spraying protesters, and ultimately arresting more than two hundred people.
Five years later, Donald Trump held a press conference in the gold-plated atrium of his tower in Lower Manhattan. With his family and aides grouped around him, the then-presidential candidate held forth as security guards shooed pedestrians away.
What connects these seemingly disparate events? Both occurred in New York’s privately owned public spaces (POPS), legal paradoxes that were born in the 1900s and have integrated themselves into the fabric of the city.
Now numbering 525, these spaces take the form of plazas, arcades, gallerias, through-block connections, pedestrian spaces, sidewalk widenings, and more; they concentrate in the commercial districts of Manhattan, before petering out in residential areas and the outer boroughs.
And while little understood — and even less studied — they stand as a meeting point where the interests of elites and the public collide.
Haute Couture and Corner Offices
POPS were born out of the same class conflict and technological change that have shaped New York City throughout its history.
Their origins are on Fifth Avenue of the early twentieth century, already the haute retail destination we know it as today. Manufacturers — whose products at the time traveled blocks, not oceans, away — preferred to locate their factories close to their Fifth Avenue clients to reduce transportation costs and facilitate transactions. But retailers had other ideas. As Jerold S. Kayden records in Privately Owned Public Space: the New York City Experience, “retailers disliked the environment created by contact between their customers and the factory workers, and the added street traffic of trucks.”
In other words, if Fifth Avenue shopping was going to preserve its aristocratic air, customers had to be shielded from seeing the people who crafted their luxury garments. So activist retail bosses banded together into the Fifth Avenue Association and demanded that the city impose building height restrictions to drive out area manufacturers.
A few miles south in the financial district, ambitious real-estate developers were taking advantage of a new architectural innovation — the skyscraper — to bring big windows and lots of light into the offices of bankers and traders. But these towering structures also cast chilly shadows on the street-level pedestrian. And while some in real estate admired the skyscraper as “a machine that makes the land pay,” others worried that its proliferation would flood the market with excess space, driving down values.
The combination of these two disputes — the garment-retail conflict and the skyscraper issue — pushed the city to intervene in the planning of private developments in 1916. The Zoning Resolution set aside different areas for commercial, manufacturing, and residential uses, and instituted height controls tailored to each place.
The city, however, was also wary of antagonizing the real-estate tycoons fueling the city’s growth. Relying on incentives rather than mandates, the resolution sought to convince developers to bring more “light and air” to the street level while maintaining — or, even better, enhancing — buildings’ profitability. If developers agreed to create plazas, walkways, and extra sidewalk space for the public, they were free to build their buildings still higher, shooting real estate values into the clouds. With the resolution, the city looked to harmonize the competing private interests of a growing commercial center and confirm the city as a comfortable place for wealthy pedestrians to visit and traverse.
The city’s aim, then, wasn’t necessarily to generate public space through zoning.
It wasn’t until half a century later that the city began using zoning as a tool to create public areas — and it did so in part because of the failures of the original law. The 1916 Resolution, and its evolution through zoning measures in 1961 and 1971, had not so much created public spaces as it had created spaces for public use.
Although a handful of developers soared above the requirements set forth in the Zoning Resolution, furnishing functional, even pleasing, spaces, most developers supplied ‘letter of the law’ plazas that complied strictly with the minimum legal requirements. Plazas could and would be open and accessible to the public . . . and yet be completely unusable in any functional sense.
They were treeless; devoid of seating; cold; and often contained hostile features like spikes. Developers got billions of dollars in vertical real estate; the public got a constellation of dead zones.
In 1975, the city responded to the glaring deficiencies by mandating additional responsibilities for owners. The new amendment imposed higher design standards; mandated accessibility for the physically disabled; required more (and more usable) amenities; brought in lighting; and introduced signage informing passersby of the spaces’ public nature.
By intervening on behalf of pedestrians, the city tacitly recognized that these spaces were, in fact, public, and that their condition affected the quality of the city’s overall “stock” of public space.
This shift succeeded in making many POPS more aesthetically pleasing and functional for ordinary pedestrians, but it failed to resolve the lingering conflict at the heart of POPS: whether a truly public space, animated by democratic principles, can be owned by a private entity. And in so doing, the city hollowed out the meaning of “public space” itself.
Homeless Not Welcome
Over the years, the most consistent victims of POPS have been the homeless. Despite the 1975 reforms — and sometimes because of them — the areas often look, and operate, more like shopping malls than your average public park or walkway. Businesses who rent space in POPS often don’t recognize the spaces’ public character, and, viewing the homeless as nuisances to their customers and image, enlist employees to harass and drive the shelterless out.
One example is Le Parker Meridien’s building at West 56th St in Manhattan, whose lavish lobby holds a cafe and bar featuring $8 coffees and $23 cocktails. In 2015, a New York Times reporter, determined to test how “public” the Knave really was, showed up with a pizza and a few friends. He was informed by the bartender that all food had to be purchased from the cafe, that outside food was “illegal,” and that they “would have to leave.” For homeless people who depend on public spaces to eat and rest, such palpable antagonism threatens their ability to carry out basic life-sustaining functions.
Similarly, the pedestrian throughways and indoor atriums that classify as POPS have been crucial to the survival of those without shelter during the harsh winter months. Convenient for the average pedestrian, heated and covered POPS are lifesaving for the homeless.
Yet during the city’s annual count of unsheltered persons — which occurred this year on a below-freezing day in February — officials instructed volunteers not to include homeless people they saw in privately owned public spaces.
Ambiguity, it turns out, still persists.
And that ambiguity has a real impact on the rights of the homeless, even in cut-and-dry public spaces. A few months after the February census, the New York Civil Liberties Union filed a complaint on behalf of Picture the Homeless, a New York–based advocacy organization. The suit alleged that, despite homeless people’s right to congregate freely in public space (and in contravention of anti-discrimination laws) the New York Police Department routinely orders them to move, sometimes multiple times a day, and threatens them with arrest or confiscates their possessions if they do not.
The bulk of this police harassment stems from formal “broken windows” policies. But it is reinforced by the commercialization, epitomized by POPS, of urban public space. Because the homeless contribute little to the consumer economy that permeates our urban geography, they represent interruptions and even threats to public order. It is for this reason that POPS developers, business owners, and law enforcement work hand in glove to target the shelterless and drive them out of the city’s opulent “public” atriums.
When occupiers decided to pitch their tents in Zuccotti Park in the fall of 2011, they forced an unanswered question: whether First Amendment protections apply in privately owned public spaces.
In fact, the city’s equivocation was part of the reason the occupation survived as long as it did. As Ben Adler noted at the time, “It is only because Zucotti Park falls into a nebulous area that the NYPD maintained . . . that they did not have full authority to eject the protesters.” That came to an end when the park’s owners, Brookfield Properties, issued guidelines for the park that included prohibitions on “tents or other structures,” “lying down on the ground,” and the “removal of objects from trash receptacles” (the latter clearly targeted at the homeless). With Brookfield firmly against the protest, Mayor Bloomberg’s police department moved in.
It’s noteworthy that Brookfield avoided banning political activity per se, instead targeting behavior that could interfere with pedestrians’ ability to engage in “passive recreation.” The startling range of proscribed activities, however, ensured that whenever someone was removed while protesting, the company would have any easy pretext to justify the expulsion.
In this way, Brookfield and the city resolved the relationship between POPS and the First Amendment in practice if not in law.
In recent years, Donald Trump has done his part to demonstrate the precariousness of ostensibly public space.
In addition to the aforementioned press conference, Trump began selling Make America Great Again caps and other campaign fare at kiosks where a twenty-foot public bench once sat.
For removing the marble bench, the Trump Organization — whose namesake pocketed $73 million from the building in 2012 alone — received fines of just $14,000. This came after the city’s previous efforts to penalize Trump failed: the billionaire first got rid of the bench around 2008, and between 2008 and 2015, incurred $2,500 in fines.
It wasn’t until summer 2016 that Trump reinstalled the seating, this time in the form of nondescript black metal benches.
In short, it took roughly seven years — and the media heat of a presidential campaign — for the Trump Organization to restore a small stretch of seating in a public area. Meanwhile, Trump carried on with his political activity in the atrium — a far cry from the draconian response directed against occupiers.
The contrast between the situation at Zucotti and Trump’s ongoing charades makes a couple things clear: first, the government is unwilling to decide whether the public retains their constitutional rights in POPS; and second, even when it’s willing to take a stand, wealthy owners can simply wage a war of attrition. In both cases, the city ultimately gets what it wants. But the public walks away without any guarantees.
In fact, since the election, Trump seems even more determined to lord his presence over New York. Not only has he been assembling his transition team from his Columbus Circle tower, but there are rumors he’ll stick around once in office and that the Secret Service will be renting an entire floor. Already this has caused significant interruptions to pedestrian life in the neighborhood; but less discussed than Upper West Siders’ ability to access the Gucci store has been the privately owned public plaza at the base of the tower. There is little doubt now that President-elect Trump’s security needs will make collective use of this space precarious at best.
The Law of the Land
In 2009, New York City councilman Dan Garodnick was confronted by building security and police outside an apartment complex in Manhattan. Garodnick was in the midst of campaigning, and asserted he had a First Amendment right to collect petition signatures in the privately owned space. Building security disagreed, and called the NYPD.
While the police ended up siding with Garodnick, the incident sparked a debate — only seven years later — at a 2016 City Council hearing on POPS. There, city agencies downplayed the need to make sure owners were keeping the spaces publicly available. As Politico reported, Patrick Wehle, the assistant commissioner at the Department of Buildings, “said that safety issues must take precedence over concerns about POPS, which is why the agency responds to complaints rather than conducts proactive enforcement.”
Wehle’s comments reflect a highly individualized approach that puts the weight of maintaining the quality and accessibility of POPS on the average passerby rather than the owners and corporations profiting off these agreements. As Garodnik’s experience shows, calls to enforcement agencies are much more likely to come from building employees grousing about pedestrian misbehavior than from concerned citizens blowing the whistle on owners.
This dynamic epitomizes the urban planning and policing philosophies of cities across the United States.
From turnstile-jumpers being fined exorbitant amounts for trying to board faulty trains to ubiquitous “see something say something” campaigns that fail to solicit tips on dangerous construction sites, the task of securing “public safety” falls squarely on individual residents — even as city governments cut back funding for basic services. What’s more, questions of homeless rights or the consequences of repressing political speech in public space are left entirely out of this framework.
When cities rely on private developers to provide public space — or worse, affordable housing — their power to regulate them largely vanishes. Multinationals receive billions of dollars in subsidies and air rights to build condos for the rich, while agencies tasked with protecting tenants’ rights, ensuring building safety, and constructing shelters and services are starved and left virtually toothless. Real estate becomes the effective law of the land, transforming residents into rentiers, public space into borrowed land, and the homeless into unproductive dead weight. Working-class people inevitably lose out.
In this context, it’s no wonder that occupations and “shutdowns” have become the most common form of dissent in urban areas. To refuse to move — to block economic circulation — represents a reclamation of popular agency in cities where transience and commercialized space cement the status quo.
As for POPS, many provide enjoyable and useful space to the millions of people who live in the city. But from their inception until today, POPS have existed to help the wealthy consciously shape New York City and restrict the proliferation of democratic spaces.
They deserve to be resisted.