Marquette Law Review Volume 97 Article 5 Issue 2 Winter 2013
DIY Urbanism: Property and Process in Grassroots City Building Celeste Pagano Florida Coastal School of Law, [email protected]
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Repository Citation Celeste Pagano, DIY Urbanism: Property and Process in Grassroots City Building, 97 Marq. L. Rev. 335 (2013). Available at: http://scholarship.law.marquette.edu/mulr/vol97/iss2/5
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* AGANO P
ELESTE C DIY URBANISM: ) 2/15/2014 ELETE D PROPERTY PROPERTY AND PROCESS OT OT N O (D
IN GRASSROOTS CITY BUILDING -10
This Article is the first to examine the trend from a legal perspective. In recent years, a range of grassroots interventions have claimed and M K AGANO C Y shaped the use of urban space. Community gardens, unsanctioned public art, temporary crosswalks, miniature lending libraries—these projects and more have been termed “insurgent “guerilla uses of urbanism,” public space.” “tactical I urbanism,” choose Yourself” the urbanism or to term describe “DIY” these or phenomena in “Do-It- order to emphasize their bottom-up and often ad hoc nature. aims Accomplishing and a variety of existing interventions on share a in use engagement of in common changing urbanthe space. fluid common spectrum an of orientation legality, toward DIY community urbanist versions of this piece were presented at the 2012 *Celeste Local Government Pagano, Law Works-in-Progress Visiting Associate Professor, Florida conference Coastal at School Marquette of Law Law. School and Earlier at the 2013 annual meeting Law, of Property, the and Association Society of at the University of Minnesota Law School. I the extend thanks participants to in both conferences for their visions Dalley, and Sarah Schindler for their helpful and comments, and to law librarian Kathleen Brown insights, to Carla Spivack, Paula work. extraordinary for their Hines Tami assistant research and my
P Because many DIY urbanist interventions are at least initially illegal, they raise thorny issues of law and legitimacy. This Article first situates DIY urbanism in the development, context then of democracy that tackles other these projects raise. contemporary questions illegal, DIY strengthen trends urbanist of civic actions, even values, in when enhance legitimacy, community,remedy urban and may deficits legality, serve to in acceptance of and DIY urbanist actions existing into the mainstream canon of democratic urban development tools processes. reflects the inherent other legal flexibility regimes Ultimately, that have developed in to protect the property enduring values the of law and community despite shifting societal circumstances. 34609-mqt_97-2 Sheet No. 65 Side A 03/17/2014 11:30:34 03/17/2014 A Side 65 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 65 Side B 03/17/2014 11:30:34 M K PM
C Y 4:42
DIY [97:2 [97:2 ...... 376 RBANISM AND THE THE AND RBANISM U ...... 363 EW
N EMOCRACY D MARQUETTE LAW REVIEW LAW MARQUETTE EGITIMACY L ) 2/15/2014 ...... 337 ...... 341 ...... 386 ELETE D ISTORY OFISTORY THE H OT OT N O ESPONSE (D
RIEF R 363 ...... of DIY Urbanist Acts A. Normative Acceptance 369 ...... of NormativelyB. Legalization Acceptable Acts A. A Brief History of the New Urbanism ...... 341 ...... A. A Brief History of the New Urbanism 349 ...... B. The DIY Response 356 ...... Urbanism C. Aims of DIY -10 ISOBEDIENCE ANDISOBEDIENCE UESTIONS OF UESTIONS B
ONCLUSION D Q
A C NTRODUCTION
I
AGANO III.
336 336 I. P II. V. IV. 34609-mqt_97-2 Sheet No. 65 Side B 03/17/2014 11:30:34 03/17/2014 B Side 65 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 66 Side A 03/17/2014 11:30:34
, 7 12 PM
in in , ERM ITIES , Oct. 4:42 C
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EMAKING OF , TLANTIC TLANTIC R , N.Y. , A ]. (Jan. 7, 2012, 11:00 11:00 2012, 7, (Jan. CTION A informal seating seating informal
8 ALON Id. (Feb. 17, 2010, 4:17 AM), AM), 4:17 2010, 17, (Feb. “tactical urbanism,” “tactical ERM , S 11 , http://betterblock.org/how-to- -T Better Block temporary bike lanes lanes bike temporary 9
337 337 LOCK RBANISM HORT B U S
: RBANISM AND THE U ETTER , D.I.Y B RBANISM HE U , T NTRODUCTION I Near West Side School Field House Torn Down Despite
UERRILLA UERRILLA DIY URBANISM DIY I. G
(Aug. 17, 2013), http://articles.chicagotribune.com/2013-08- http://issuu.com/streetplanscollaborative/docs/tactical_urban
10 .
miniature lending libraries offer books from from books offer libraries lending miniature
: even temporary “town halls” pop up on vacant vacant on up pop halls” “town temporary even 5 3 ACTICAL ACTICAL skate parks take form under freeway overpasses; freeway under form take parks skate RIB 6 T T art spaces fill abandoned storefronts that would would that storefronts abandoned fill spaces art
An Ode to New York’s Glorious DIY Sidewalk Seating Culture
2 . PACE 45, 45–46 (Jeffrey Hou ed., 2010). ed., 2010). Hou (Jeffrey 45–46 45, Visions of Post-Industrial Milwaukee Luring Artists to Lend Life to Empty Storefronts 2 ) 2/15/2014 Taking Place: Rebar’s Absurd Tactics in Generous Urbanism S note 4, at 1. note at 4, 1. HI
overlooked school buildings become community- become buildings school overlooked , 1 DIY Urbanism: Themes , C (Feb. 28, 2013), http://www.theatlanticcities.com/neighborhoods available at ITIES ELETE The Rise and Fall of Oakland’s Bordertown Skate Park C D supra YDON ,
UBLIC . OT OT ITIES L P N at 46. C O at 16. Guerilla gardening is gardening activity on any land that users have have users that land any on activity gardening is gardening Guerilla 16. at YDON (D IKE IKE
29 (2012), 29 -10 ]. .How to Build a Better Block Better a Build to .How Smaller projects also abound: guerilla gardens bloom on formerly .M . Id. . See id. 4 4 11. Joni Taylor, 2. Naomi Nix & Peter Nickeas, In recent years, grassroots interventions have claimed and shaped 9. Sarah Goodyear, 12. L 3. Diane Cardwell, 5 6 7. Nate Berg, 8. Blaine Merker, These projects and others like them are loosely linked under a 1. Emma Mustich, 10 M K TLANTIC TLANTIC HANGE ONTEMPORARY AGANO C Y NSURGENT Community Community Protests A appropriated for that purpose without legal possession or license. or license. possession legal without for appropriated that purpose the use of urban space. The diverse range of projects encompasses some space. The diverse range of projects the use of urban that are large and ambitious: abandoned factories find new productivity as urban farms; variety of titles, including “DIY [u]rbanism,” 13, 2009, at A24. at A24. 13, 2009, build-a-better-block/ (last visited Oct. [hereinafter 2013) 24, materialize on pavement. blighted median strips; /2013/02/ode-new-yorks-glorious-diy-sidewalk-seating-culture/4817/ /2013/02/ode-new-yorks-glorious-diy-sidewalk-seating-culture/4817/ [hereinafter Seating C C arrangements offer respite to passersby; http://www.salon.com/2012/01/07/visions_of_post_industrial_milwaukee/. AM), 2013] 2013] otherwise stand vacant; P http://diyurbanism.blogspot.com/2010/02/themes-it-is-much-quoted-fact-that-by.html. http://diyurbanism.blogspot.com/2010/02/themes-it-is-much-quoted-fact-that-by.html. gaete-field-house. ism_vol_2_final 17/news/chi-whittier-school-chicago-fieldhouse-protest_1_whittier-elementary-school-gema- sponsored libraries; lots. (Sept. 19, oakland/128/. 2011), http://www.theatlanticcities.com/arts-and-lifestyle/2011/09/skate-park- I unused phone booths; parking spaces become temporary urban parks; 34609-mqt_97-2 Sheet No. 66 Side A 03/17/2014 11:30:34 03/17/2014 A Side 66 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 66 Side B 03/17/2014 11:30:34
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See J.L. 233– C Y
. PACE 4:42
ISIBLE S Regional Regional V ICH ORDHAM . 231, F M note 8, at Though
18 EV 22 UBLIC R
P , supra supra L. “insurgent “insurgent
this Article is , (June 9, 2010), 2010), 9, (June . NVISIBLE 14 I 21 , 43 U. UL SSEMBLY AND THE ITES A C ESIGN D , 87 T NSURGENT [97:2 [97:2 N I ’ AKING THE in SS , A M Although several valuable valuable several Although in 19 , Trespassory Art and street art, street and REEDOM OF Of Backyard Chickens and Front Yard REE REE F 20 ONTEMPORARY
: C F ’ , and “insurgent [use of] public public of] [use “insurgent and ARK 16 P 37, 53 (Leonie Sandercock ed., 1998). 1998). ed., Sandercock (Leonie 53 37, Occupying Occupying Public Space, 2011: From Tahrir Square to 18 (Ronald Shiffman et al. eds., et Shiffman 2012). al. (Ronald 18 – EMAKING OF R ISTORY UCCOTTI In fact, “Occupy” protestors sometimes sought both. Urban Urban Agriculture and Other Green Uses: Remaking the 3, 17 H Z . “user-generated urbanism,” “user-generated . 225, 229 (2010); Patricia E. Salkin & Amy Lavine, 13 MARQUETTE LAW REVIEW LAW MARQUETTE PACE AW S L ) 2/15/2014 Spaces of Insurgent Citizenship
. note 4, at 1. note at 4, 1. (Not) Your Everyday Public Space EYOND LANNING LANNING User-Generated Urbanism P RB note 13, at 13. 13. at 13, note ELETE B UBLIC D Section II.C Section P supra Section II.C. II.C. Section in , 42 U . 599, 616 (2011); Sarah B. Schindler, “pop-up urbanism,” “pop-up OT OT
RBANISM AND THE , , supra 15 N U infra EV infra O
YDON (D
17 L. R
-10 . . See . See 14. Bmilligan, ‘ 15. James Holston, 16. L 20. Catherine J. LaCroix, 13. Jeffrey Hou, 21. Randall Bezanson & Andrew Finkelman, 17. Hou, 18 Purely expressive motives underlie some of these interventions, such 19 ULTICULTURAL ULTICULTURAL (2012). (2012). M
CCUPATION OF UERRILLA NVTL AGANO 34 14. Foodsheds: Foodsheds: Are Our Local Zoning and Land Use Gardens: The Conflict Between Local Governments and Locavores Regulations Healthy? space.” http://freeassociationdesign.wordpress.com/2010/06/09/user-generated-urbanism/. http://freeassociationdesign.wordpress.com/2010/06/09/user-generated-urbanism/. squatters who claim property for exclusive use, DIY urbanists create seek spaces to to be shared in common. Second, DIY urbanist projects share an orientation toward changing either directly or the by inviting further character community action or participation. of urban Some illegal space, DIY actions represent deliberate forms of protest, such as breaking in pursuit of intentional law specific societal changes. urbanism,” as art installations that invite commentary about the urban spaces they inhabit. Other actions have chiefly utilitarian food to goals, meet such community needs. as growing Though their goals two features. First, they use all share or appropriateinterventions urban may differ, these space for common, as opposed to private, use. Thus, in contrast to O Shrinking City E G A 338 338 “guerilla urbanism,” P urbanism, most notably urban gardening articles have been written about discreet strands of what I term DIY some of the characteristics of certain DIY urbanist actions overlap with other protest movements, urbanist interventions are including distinct from broader the acts of protest their in specific Occupy that goal is to change the movement, use of space in cities, DIY as effecting changes in other laws and policies. opposed to Zuccotti Park Karen A. Franck & Te-Sheng Huang, 34609-mqt_97-2 Sheet No. 66 Side B 03/17/2014 11:30:34 03/17/2014 B Side 66 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 67 Side A 03/17/2014 11:30:34
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26 In this paper, I I paper, this In 23 Three years later, later, years Three 25 . 27, 28 (2012); Jesse Merriam, EV R 339 339
L.
. E Painting Painting Your Own Crosswalk: Crime or , 65 M Art Crimes?: Theoretical Perspectives on Copyright http://emeryville.granicus.com/MetaViewer.php?vie Lydon, Lydon, Roberts on the Future of Tactical Urbanism 2, 2 (2011). (2011). 2, 2 (June 5, 2013), http://www.theatlanticcities.com/comm 2013), 5, (June Y ’ DIY URBANISM DIY OL ITIES note 4, at 34–35, 37. at 4, 37. 34–35, note P
C & available at available
L.
(May 31, 2013, 4:00 PM), http://www.gcbl.org/blog/2013/05/lydon- PM), 4:00 2013, 31, (May supra . , ) 3/10/2014 M note at 4, 16. AKE TLANTIC note 7; Memorandum from Dep’t Pub. Works to Patrick D. O’Keeffe, .-A at 16, 34; Sarah Goodyear, Goodyear, Sarah 34; 16, at note 7. 7. note L ELETE ]; Marc Lefkowitz, YDON , A FR id. D And some projects, having gained formal legal status, status, legal formal gained having projects, some And supra , A , L 24 ,
LUE OT OT supra supra supra J. B N O YDON (D ITY
245, 247 (2010); Jamison Davies, Davies, Jamison (2010); 247 245, Berg, L C -10 . . . See, e.g. . See, e.g. 26 24 22 23 25. Berg, Part II of this Article provides the background necessary to The legal character of DIY urbanist actions can change: some DIY urbanist interventions exist along a curiously fluid spectrum of ERKELEY M K REEN EFORM AGANO C Y w_id=2&clip_id=350&meta_id=20089. w_id=2&clip_id=350&meta_id=20089. understand the genesis and goals of the current DIY urbanist trend. roberts-on-the-future-of-tactical-urbanism. ute/2013/06/painting-your-own-crosswalk-crime-or-civic-opportunity/5791/ [hereinafter ute/2013/06/painting-your-own-crosswalk-crime-or-civic-opportunity/5791/ Painting Crosswalk G use the term “DIY”—short for Do-It-Yourself—urbanism to encompass the broad range of phenomena described above, and the term “guerilla” urbanism to distinguish a subcategory of DIY interventions that break processes. or skirt democratic regulations, laws, ignore actions with illegal origins gain formal legal that status find purchase become embraced later. by local governments, like a once- Innovations illicit urban garden now maintained by the City Department. of New York’s Parks Painting Black Spaces Red, Black, and Green: The Constitutionality of the Mural Movement B 13 R 2013] 2013] the first piece of academic legal writing to describe other contemporary DIY urbanist phenomena and the first piece of any kind to explore the the trend overall. role of and political legal legality. Some interventions proceed with the permission of the private landowners or public entities that control bear the the imprimatur of spaces groups of urban used, planning professionals and working some in cooperation with city officials, activists, business owners, and artists. P City Manager (Sept. 7, 2010), 7, 2010), (Sept. City Manager of-way, organized, they managed to negotiate with and secure a sublease with negotiate managed to of-way, organized, they from the City of Oakland to use the land as a park. lose it again. When the creators and Park, located in a California Transportation advocates Authority (CalTrans) right- of Bordertown Skate Protection for Illegally-Created Graffiti Art vandalism, or violate local zoning and building codes. Other actions are outright illegal in that they involve trespass or however, the lease expired and the city elected not to renew it. not city elected and the expired lease however, the Civic Opportunity? 34609-mqt_97-2 Sheet No. 67 Side A 03/17/2014 11:30:34 03/17/2014 A Side 67 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 67 Side B 03/17/2014 11:30:34 . M K PM
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27 Acceptable Acceptable Deviance and Property Rights MARQUETTE LAW REVIEW LAW MARQUETTE ) 2/15/2014 ELETE D OT OT N Mark A. Edwards, O (D
-10 . See 27 Part IV tackles these questions of legality, concluding that although But DIY urbanist interventions, particularly those of questionable Part III then explores questions of legitimacy, or normative AGANO the democratic process, strengthen democracy overall, in several DIY ways. creating First, urbanist by change involving at acts citizens in the promote grassroots strengthen communities. level, and they Second, DIY foster urbanist civic actions done values illegally and amenity in a publicly-owned space, why not simply petition City Hall? If urban gardens have instead of unlawfully value, entering on land why to which they do not not have to purchase or leasepossession, simply band together their own land? Is legal have community gardeners, it ever acceptable to break the law instead of pursuing change through the channels provided by the democratic process and the marketplace? If so, why? Do we embrace zoning and trespass, building codes vandalism, whenever an activist and or a a group feels that disregard an for urban space could be put to better use—and if not, where do the line? we draw these illegal uses of urban land may initially perform an end-run around legality, also push us to process. confront basic If questions people of want the a democratic new crosswalk, artwork, or some other 457, 459 (2010). (2010). 457, 459
urbanist intervention gains acceptance or approbation turns less on the act and the character more on the nature of the action and of the legality of the space used. Innovations that make new public use of unused or underused urban space tend to endure whether they are originally legal or not. The then most interventions gain successful legal formal of these status and may even be replicated elsewhere. This reflects existing legal theories about legitimacy and legality, which normative suggest acceptability and that, legality of where an the action diverge, it is likely to change. is activity, that and not the the law, 340 340 First, it traces the history of the new urbanism movement as a reaction to the shortcomings of earlier generations of urban planning. examines Next, it the role complement to the new of urbanist vision and small, a movement’s reaction weaknesses. to Third, it describes some some bottom-up of the of goals achieved the interventions by as DIY both urbanist instrumental, or (as occurs most often)two. a combination of the interventions, a whether chiefly expressive, chiefly acceptance by the surrounding community. Whether a particular DIY P 34609-mqt_97-2 Sheet No. 67 Side B 03/17/2014 11:30:34 03/17/2014 B Side 67 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 68 Side A 03/17/2014 11:30:34
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94 (1961). 94 (1961). EFENSE OF – DIY D 293 ITIES C SSAYS SSAYS IN They create so- create They —Jane Jacobs E 29 L.J. 1897, 1933 (2005). (2005). 1897, 1933 L.J.
: ITY ALE C MERICAN A 341 341 , 114 Y , 114 IQUID RBANISM AND THE AND RBANISM L
U REAT G EW N IFE OF OF IFE ESPONSE L
ROUND IN A R G DIY URBANISM DIY
Bottom-up city building, including the DIY DIY the including building, city Bottom-up Democratic Disobedience Democratic EATH AND 31 OMMON D note 15, at note 39. 15,
, C 28 HE ISTORY OFISTORY THE ) 3/10/2014
131 (2010). 131
, T , H ERN supra 48. A. A Brief History of the New Urbanism 56, – H ELETE D In fact, people engage in citizenship in many ways not not ways many in citizenship in engage people fact, In RIEF ACOBS OT OT at 47 at ATT J 30 N B UTURE
M Holston, O Daniel Markovits, Markovits, Daniel F A (D
ANE
-10 II. . See .J . See id. . See . See RBAN 30 32 31 29 28 Healthy cities are built gradually, by accretion, as people make Though DIY urbanist interventions vary in their aims, forms, The Article concludes by noting that, to the extent that interventions M K U AGANO C Y decisions about how to use the space in which they live. “The form of grassroots democratic ideal of citizen participation. legality, and levels of community acceptance, what they have in common in common they have acceptance, what community levels of legality, and is a engagement. grassroots They embody a nature “bottom-up” approach to urban In and design. contrast an to governments, impulse large urban toward urban planners, development detriment expression of designs or and vulnerable implemented large communities, by developers, DIY often urbanism represents to a the acceptance, are often still worth trying, and in origins. illegal have even if they some cases preserving, urbanism described in this Article, allows for that to happen. (whether legal or illegal) inappropriate for are the not landscape, they useful are adequately imposition to managed of by community the the norms. community Because, or on interventions balance, improve are DIY cities urbanist and enhance democracy, innovative tactics and that are experimental, but have not yet gained widespread
2013] 2013] often point to—and may even democratic process. take steps to remedy—deficits in the P AN “City building that has a solid footing produces change.” continual and gradual called “spaces of toward insurgent the citizenship,” state countering citizenship. an as orientation the only legitimate avenue for activities of mediated by the state. 34609-mqt_97-2 Sheet No. 68 Side A 03/17/2014 11:30:34 03/17/2014 A Side 68 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 68 Side B 03/17/2014 11:30:34 M K PM
HE HE L.J. T
C Y . A A 4:42
40
: HEORY RB DIY DIY UILDING T U 32 (1987) 34 B N I ESIGN RONTIER F The bias was D ITHOUT ITHOUT 37 ORDHAM W RBANISM note 35, at 706. 706. at 35, note RBAN U 20 F
, U [97:2 [97:2 EW supra supra N RABGRASS
: C
, OMMUNITIES C HEORY OF T EW ACKSON OMMUNITY 13 (2nd ed. 1974). ed. (2nd 13 J N C
UILDING 116 (1985); Aoki, Aoki, (1985); 116 B T. ., A ITIES : OOD C G
TATES S 36 AKING HE T M ENNETH ESIGN OF ESIGN . “[T]he piecemeal character of growth [is] a necessary
] NITED ITY ITY D
, Id. U Race, Race, Space, and Place: The Relation Between Architectural , C MARQUETTE LAW REVIEW LAW MARQUETTE LEXANDER ET AL ) 2/15/2014 LANNING LANNING A HEORY note 15, at 37, 41–43. note at 15, 41–43. 37, ACON P RUG T
B , F
note 35, at 705–06, 712.
ELETE N. The differing utopian visions were all grounded in the the in grounded all were visions utopian differing The E. D EW supra supra 35 30 (2006); K (2006); 30 N RANT OT OT These buildings lacked adequate sanitation and were prone and were These buildings lacked adequate sanitation
supra N 38 G Keith Aoki, A O ERALD DMUND HRISTOPHER (D ILL
It is an essential condition of what Christopher Alexander has has Alexander Christopher what of condition essential an is It RACTICE 33 122–23 (1999). (1999). 122–23 -10 .E .C . See City air was also notoriously polluted from burning coal. burning from polluted notoriously also was air City P 39 37. G 36. Holston, Some planners proceeded from a distinctly anti-urban bias, building 33 34 38. J 39. Aoki, From the 1920s through the mid-twentieth century, American urban 35 ALLS UBURBANIZATION OF THE AGANO their visions around the ideal of pastoral, natural settings. of pastoral, their visions around the ideal construction of entire neighborhoods of dangerous tenement housing— cramming twenty or more families into effort a to building squeeze the on greatest one possible financial lot—in return an out real estate. of valuable understandable, arising as a reaction to cities the during fetid the rise conditions of of industrialization. many The rapid into influx of cities workers during the Industrial Revolution had spurred the private AND planning followed a proposing several different spatial configurations for human settlements, series of shared movements a and common faith ideals environment. in that, the deterministic while effects of the physical urbanists making modest improve cities in alterations this incremental manner and to strengthen the fabric local community. of the physical environment 699, 700, 729, 769 (1993). 729, (1993). 769 699, 700, W S
belief that planning itself could alleviate intractable social problems, and that an architect or planner could create way. the right building things utopian social conditions by 342 342 [a] city,” determined by the multiplicity wrote of decisions made by the people who live influential in it.” urban planner Edmund Bacon, “is P Modernism, Post-Modernism, Urban Planning, and Gentrification precondition of wholeness.” wholeness.” of precondition called “wholeness” that such decisions be made “piecemeal” such that neighborhood growth and change occur gradually, over time. to burning down in fires, making them live. singularly unhealthy places to [hereinafter 34609-mqt_97-2 Sheet No. 68 Side B 03/17/2014 11:30:34 03/17/2014 B Side 68 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 69 Side A 03/17/2014 11:30:34
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1952 NVTL 4:42
42 EBELLION IN , 111 E Adopting Adopting R FTER THE 48
A & The Garden Garden The 44 EARS Y (June 7, 2012, 4:04 AM), AM), 4:04 2012, 7, (June DEALISM I
, IFTY IFTY F
NLINE : The physical dangers of of dangers physical The O 41 343 343 OLITICS AIL AIL P MOKE
: S M
note 35, at 716–18. at 716–18. 35, note , IG IG http://history.lshtm.ac.uk/BigSmokeNS.pdf; http://history.lshtm.ac.uk/BigSmokeNS.pdf; B supra HE T
ARDENING Howard’s original vision was one of a a of one was vision original Howard’s ., G 43 available at Some of the first towns built on Howard’s Howard’s on built towns first the of Some DIY URBANISM DIY 45 ADICAL ADICAL , R note 38, at 69. 69. at 38, note ) 2/15/2014 AY note 38, at 38; Aoki, Parts of the Garden City idea spread further but were were but further spread idea City Garden the of Parts K Toxicologic and Epidemiologic Clues from the Characterization of the C 47 Hell with the Lid Taken Off’: The Pictures of Bygone Pittsburgh and its note 35, at 715, 736. 736. 715, at 35, note ELETE supra supra M , D RIMBLECOMBE ET AL supra , 21, 30, 33 (2005), (2005), 33 30, 21, B . 1209, 1209 (2003). A similar fate also afflicted Pittsburgh during this era. OT OT Residents lived in cooperative housing or in flats designed designed flats in or housing cooperative in lived Residents supra N 34–35 (2011). (2011). 34–35 46 O at 35–36. 35–36. at at 33–34. 33–34. at 34. at 39–40. at MOG ERSP RANT EORGE S ETER (D ACKSON
P G -10 . . Id. . Id. . Id. . Id. ARDEN G 42. Aoki, 43 It is no surprise, then, that planners and architects presented a series 44. G 40. J 45 46 47 48 41. P M K EALTH ONDON AGANO C Y 1952 London Smog Fine Particulate Matter in Archival Autopsy Lung Tissues Most famously, English planner Ebenezer Howard proposed “Garden Cities”—small central cities with satellite towns each in a with pastoral housing, setting, a provide the residents with employment—as a healthful alternative to the defined town center, and crowded squalor enough of the cities. industry to of alternatives to city life with the goal of moving people to the country. uses at the time. specifically for single women, a radical departure from prevailing land cooperative community where the presence of the garden commons would and encourage shared association, not exclusivity. Andrew Andrew Hunt et al., residents-choking-clouds-smog.html. residents-choking-clouds-smog.html. Lawrence Lawrence Conway, ‘ Residents Choking Under Clouds of Thick Smog www.dailymail.co.uk/news/article-2155742/Hell-lid-taken-The-pictures-bygone-Pittsburgh- THE L H 2013] 2013] thick layer of coal dust and smog that settled week over London period for in a 1952 two- killed 12,000 people, darkened and by coal dust that persons walking reports on the street in daylight had describe air so to grope along the walls to find their way. P model became meccas for radicals of all kinds, including feminists and suffragists. crowded slums and successive waves of the immigrants who lived perceived in them places to live. and dangerous dirty, bad, being perceptions of cities fueled moral middle-class degeneracy ascribed to diluted in form to make them suited for a broader market. Howard’s physical model in the absence of its accompanying political City was also intended to provide a variety of housing types, including some suitable for the poor. 34609-mqt_97-2 Sheet No. 69 Side A 03/17/2014 11:30:34 03/17/2014 A Side 69 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 69 Side B 03/17/2014 11:30:34
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C Y 4:42 (1986)
The The 27 54 at 37. at 37.
Id. at 733. 733. at ESIGN
Id. D 50 These ideas ideas These
53 52 RBAN U [97:2 [97:2 Driven by a belief in the the in belief a by Driven technological advances made the 51
HEORIES OF T
: PACE S note 35, at 736–37. note at 35, 736–37. OST One critic later attributed to Burnham a a Burnham to attributed later critic One L 55 supra supra INDING INDING MARQUETTE LAW REVIEW LAW MARQUETTE , F note 35, at 704, 711–12, 805. 805. 711–12, 704, at 35, note ) 2/15/2014 note 32, at 24, 93. 93. at 24, 32, note note 38, at 37–40. Another important part of Howard’s original original Howard’s of part important Another 37–40. at 38, note at 731–32. note 35, at 730. Delayed until Delayed 730. at 35, note Market forces drove the development of streetcar streetcar of development the drove forces Market Id. ELETE 49 supra RANCIK supra D supra supra T , , supra at 14, 39, 41; Aoki, Aoki, 41; 39, at 14, OT OT N Aoki, Aoki, id. O
at 709–11. Keith Aoki attributes this motive to both Frank Lloyd Wright (in the the (in Wright Lloyd Frank both to motive this attributes Aoki Keith 709–11. at RANT OGER (D ACOBS
Aoki, -10 . Id. . . See . See 53 54. J Other planners championed different improvements to ailing cities, 52 55 Even as Howard’s Garden Cities caught the imaginations of 49. G 51. R 50 AGANO horizontal Broadacre City) and Le Corbusier (in Corbusier Le vertical the City) Radiant and City). Broadacre horizontal not all of them turning away from the city itself. Daniel Burnham and other planners who became part Beautiful of movement what advocated is clearing now away mixed-use, known high-density “slums” as to the City make way for facilities grand (theaters, tree-lined libraries, avenues city and halls, stately and civic museums). developers developers in England and North America, France’s Charles-Édouard Jeanneret, better known as Le Corbusier, advocated rebuilding Europe under a different model, the “Radiant City.” skyscraper possible, Le Corbusier’s towers eventually took hold, but in a form far from what he envisioned. had (employing French the term “La Ville Radieuse” when discussing the City”). “Radiant
344 344 vision, developers gave us socially and economically isolated suburbs of winding roads and cul-de-sacs that are familiar throughout much of the country today. P buildings, boulevards, and plazas seen in U.S. cities today. “social myopia” because he “seemed to assume that placing impressive influenced urban planners and resulted in many of the grand public majestic architecture of City Beautiful, however, did the little to improve lives of substandard housing, moved into whatever other the crowded, substandard urban housing remained available. poor who, once evicted from crowded, project was land reform that would allow the developments. of Garden-City-inspired in was element most omitted iterations socialization of the benefits of his plan; this suburbs and comfortable, satellite communities around U.S. cities; this poor. to the choices available the housing did little to alter power of technology to solve social ills, Le Corbusier proposed housing people in enormous vertical countryside. towers These set would promote efficient amid circulation of acres people give all residents ample and access to light of and air, replacing the unhealthful gardens and streets. on urban and crowded conditions then prevalent 34609-mqt_97-2 Sheet No. 69 Side B 03/17/2014 11:30:34 03/17/2014 B Side 69 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 70 Side A 03/17/2014 11:30:34
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note 32 Thus, Thus, 58 supra , ACOBS The Death and Life note 35, at 732. In addition, following following addition, In 57 supra supra 345 345 note 34, at 2–3; J supra The same tower design, of steel steel of design, tower same The , 59 HEORY T
56 DIY URBANISM DIY EW Yet in the very first sentence of that book, book, that of sentence first very the in Yet 65 N , Jacobs advocated a now-familiar urban ideal
In her seminal 1961 book, book, 1961 seminal her In 64 ., A note 32, at 24–25, 89–90; Aoki, Aoki, 89–90; at 24–25, 32, note ) 2/15/2014 note 32, at 3–4. note 32, at 35, 111, 129. supra , ELETE D supra supra Broad, empty plazas came to dominate the spaces around around spaces the dominate to came plazas empty Broad, , , 61 OT OT N Rather than being set in bucolic pastoral surroundings, these pastoral surroundings, these set in bucolic Rather than being ACOBS J O 60 at 720. 720. at n.125. 732 731–32, at 732. at at 711. 711. at 819. 789, 775, at LEXANDER ET AL (D ACOBS ACOBS
63 -10 . Id. . Id. . Id. . Id. . See . Id. . Id. 65. J More recently, urban planning has evolved in response to criticisms 63. J By the mid-twentieth century, the modernist International Style of 58 59 60 61 62 56 57 64. A M K AGANO C Y of earlier trends, as voiced by Jane Jacobs and the ideas of Christopher Alexander and others. massive, ahistorical monoliths with no decorative flourishes had become the dominant accepted form of architecture. and glass instead buildings. of concrete, became the model for large office mid-century office towers and earlier Beaux Arts landmarks alike. World War I, a new generation of architects came who, having worked into for the government to develop the housing for workers profession in industries supporting the war effort, had a new receptiveness to idea the of large government interventions in housing markets. at 3–4. at 3–4. Jacobs also very clearly signaled a battle: “This book is an attack on vertical towers like those preferred model envisioned for public housing. by Le Corbusier became the towers often ended up surrounded parking by lots. other towers and asphalt and
2013] 2013] exteriors on a town would work to cure internal social problems,” which case. be the did not prove to P Where they went unused, the vast expanses of vacant plazas and parks that resulted from planners’ traps various and death top-down traps,” lacking efforts urban vitality became and filling crime. “vice the void with of Great American Cities of socially and economically vital cities with safe sidewalks contact between promoting neighbors, bustling parks attracting a variety of users, and neighborhoods characterized by streets a and public spaces. network of lively, mixed-use 34609-mqt_97-2 Sheet No. 70 Side A 03/17/2014 11:30:34 03/17/2014 A Side 70 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 70 Side B 03/17/2014 11:30:34
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L. S ’ OHN , CNU (2001), J Celeste Celeste Pagano,
. T See , 83 S Meanwhile, new new Meanwhile, 70 [97:2 [97:2 These large developments developments large These 72 She posed her vision as a a as vision her posed She 66 Charter of the New Urbanism
Yet the very new urbanism movement that that movement urbanism new very the Yet note 48, at 88, 99. 99. 48, at 88, note 69 MARQUETTE LAW REVIEW LAW MARQUETTE supra , ) 2/15/2014 note 32, at 3. note at 32, 3. note at 32, 293. note 38, at 3. The Charter of the Congress for New Urbanism, a at 88. at 73 ELETE RANT D supra supra supra id. supra , , , G , ,
OT OT N O at 88–89. 88–89. at at 6. 6. at at 3. The declines Jacobs described also coincided with the growth of suburbia, RANT
(D ACOBS ACOBS
67 See, e.g. Id. In many cases, entire new communities have been designed and and designed been have communities new entire cases, many In -10 . See, e.g. . Id. . Id. 71 67. J 68. G 71. 72 73. 74. Congress for the New Urbanism, Since then, in development circles, the new urbanism movement has 69 70. J 66 AGANO Proceed Proceed with Caution: Avoiding Hazards in Toll Road Privatizations statement of principles set forth by some of the chief proponents of new urbanism, encourages development for environmental sustainability. coalesced to develop “compact, mixed use, walkable, and relatively self- contained communities” using “traditional patterns that facilitate walking architecture and that create strong urban identities.” and building cash. enabled by the rapid development of the Interstate Highway System. urbanism has often led to developer-driven, large-scale the changes, top-down and sudden imposition massive influxes of of grand plans, counterpoint to decades of centralized urban planning before. that had come http://www.cnu.org/sites/files/charter_english1.pdf. developed developed using new urbanist principles. have had mixed impacts, some in direct conflict with the stated goals of the movement. (2009). 351, 357 346 346 current city planning and rebuilding.” P was spurred by the writings of Jacobs and others has evolved to develop features very much at odds with her vision. In her critique of the then- prevalent trends of urban development, Jacobs also took on the scale of sheer planning and the upheavals generated by “[c]ataclysmic money pour[ing] into an area in concentrated form.” However, developers’ embrace of new urbanist principles has frequently does in many ways resemble political Jacobs’s urban ideal. leaders Developers unquestionably created some very pleasant and places to live and work, and motivated have taken steps by to reverse some of the negative side effects new of generations earlier of planning. urbanist principles have On the surface, the neighborhoods new accessible to urbanist pedestrians and vision transit as of well as vibrant, to cars mixed-use city 34609-mqt_97-2 Sheet No. 70 Side B 03/17/2014 11:30:34 03/17/2014 B Side 70 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 71 Side A 03/17/2014 11:30:34
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in , Oct. 1st Planning - FOR FOR . PARTHEID , 40 E Federal Federal The Truman A 76 NST : I
OCUS , F MERICAN , A Like the Garden City- Garden the Like 75 Suburbs, even those with with those even Suburbs, 66–67, 69–70, 73–74 (1993); Aoki, Aoki, (1993); 73–74 69–70, 66–67, note 77 atnote 77 334–35. 79 347 347 ENTON D
supra A. NDERCLASS U ANCY N
. 295, 334–35 (1999). (1999). . 334–35 295, & DIY URBANISM DIY Race, Race, Space, and Place: The Geography of Economic EV R
87, 90–91 (Margaret Dewar & June Manning Thomas eds., eds., Thomas Manning June & Dewar (Margaret 90–91 87, L. AKING OF THE ASSEY Decline-Oriented Urban Governance in Youngstown, Ohio Together, these factors contributed to white flight flight white to contributed factors these Together, M M 78 ) 2/15/2014 (Sept. 23, 2011), 2011), http://lawprofessors.typepad.com/land_use/2011/09/s 23, (Sept. note 38, at 190–91; Charles M. Haar & Michael Allan Wolf, IEGO IEGO
D S. note 35, at 761–62; McFarlane, McFarlane, 761–62; at 35, note Seaside at 30: Conference at ND on New Urbanism, Sept. 29th ELETE LOG AN D supra B , BANDONMENT OT OT supra N A , Winter 1978–79, at 1 (describing “white flight” to the suburbs and its effect on , 36 S , 36 ROF Laura Schatz, Laura Schatz, O Jim K., P “White “White Flight” to the Suburbs: A Demographic Approach OUGLAS RANT (D
10419, 10419, 10419 (2010). The most famous example of an entirely new urbanist Aoki, SE
FTER See . -10 . See . U A note 35, at 761–62. 761–62. at 35, note . EP OVERTY 77. Audrey G. McFarlane, 76 79. D 75. G 78 The impacts of these developments on central cities are new. nothing P M K R
ITY AND EGREGATION AND THE AGANO C Y and Law: Shaping the Legal Environment of Land Development and Preservation cities). Development supra Blakeslee, pedestrian-oriented pedestrian-oriented design and traditional styles suburbs nonetheless. of architecture, Whether are they centric strip feature malls and housing developments or charming sprawling towns crafted arrays of car- development is Seaside, Florida, which served as Show the location for the movie L easide-at-30-conference-at-nd-on-new-urbanism-sept-29th-oct-1st.html. 2013) (describing suburban flight as contributing to the decline of Youngstown, Ohio); Jan programs, including the Interstate Highway System, home federally-insured mortgages, encouraged and subsidized the and development of middle-class suburbs. the home-mortgage interest deduction, (and later, middle-class flight of all races) from inner cities, accelerating the collapse of segregation along racial and economic lines. core city neighborhoods and hardening regional ON S L. C externalities—unintentional, externalities—unintentional, harmful costs not borne themselves—on their by core cities, the even as residents suburbs of the suburbs have continued to enjoy the amenities their core cities provide. 2013] 2013] led to the creation of new towns and suburbs, drained often on wetlands, greenfields or where the movement’s does not outweigh the trend environmental harms of the towards energy consumption smaller lots generated by large houses and long commutes. inspired developers of an earlier generation, new sacrifice urbanist pieces developers of their original vision profitably) accommodate the rest. in order to economically (and The growth of suburban communities has long generated negative P At the same time, state laws enabling local exclusionary lack of zoning viable public transportation and kept those a suburbs largely closed to low-income people. 34609-mqt_97-2 Sheet No. 71 Side A 03/17/2014 11:30:34 03/17/2014 A Side 71 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 71 Side B 03/17/2014 11:30:34 , M K PM
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In a a In 85 Seventh Generation [97:2 [97:2 . 505, 539 (2012). 539 . (2012). 505, EV The most famous new new famous most The R 83
L.
. Annexation Annexation and the Mid-Size Metropolis: ITT P note 74. 74. note
Even new urbanist mixed-use mixed-use urbanist new Even
84
81 86 supra
, 73 U. , 73 Spring 2002, 2). at 2002, Spring MARQUETTE LAW REVIEW LAW MARQUETTE Christopher J. Tyson, Tyson, J. Christopher
, ) 2/15/2014 note 38, at 188–89 (quoting Richard Milgrom, Milgrom, Richard (quoting 188–89 at 38, note note 38, at 49–50. note 29, at 130 (quoting Hindi Iserhott, organizer for the City Repair As one critic observed, “Making suburbs pretty does does pretty suburbs “Making observed, critic one As ELETE see see also 80 D supra supra ETWORK “[T]he movement’s focus on the built environment masks masks environment built the on focus movement’s “[T]he , , supra supra 82 N OT OT , N at 27; O at 6. 6. at at 27, 187. 187. 27, at RANT ERN RANT (D
-10 . Id. . Id. . Id. LANNERS LANNERS 84 85 Further, although the Charter of the Congress for the New 86. H 81 82. New Congress the Urbanism, for 80. G Large-scale new urbanist projects thus replicate the errors of 83. G AGANO project in Portland) (internal quotation marks omitted). omitted). project Portland) marks in (internal quotation separation by race and urbanism income,” another in real consequence practice segregation. of is new the perpetuation of racial and income Urbanism affirms an ideal that “neighborhoods should be diverse in use and population” and dutifully notes a problem in society’s “increasing 151 P 151 previous generations of deterministic planners, with whom they share a faith in top-down planning as the answer to urban problems. Both the deeper issues of structures social rather equity than and challenging power,” them. replicating old power segment that can afford it, new urbanist developments create pockets of affluence far beyond the reach of ordinary working people. developments developments located in traditional center city neighborhoods can have a gentrifying effect. experience and making it available as a product only to the thin market By commodifying a certain type of urban
348 348 with pedestrian-friendly historicism by town new inequality urbanists, suburbs squares can and environmentally contribute and to segregation, economic unsustainable transportation. carefully-rendered resource patterns depletion, of traffic, development and and P New Insights in the Age Mobile of Capital not undo injustice or stop sprawl.” not undo injustice pointed example, when one of the developing employees small-scale urban of amenities in Portland, a Oregon, was community asked group if she lived in the None of us really do.” expensive. neighborhood, she replied, “No I don’t. It’s too urbanist developments are suburban enclaves purchase creating a by lifestyle the for industry, well-to-do, group in homes, a or sanitized other pleasant land version environment uses of devoid out of of urban synch life. with their 34609-mqt_97-2 Sheet No. 71 Side B 03/17/2014 11:30:34 03/17/2014 B Side 71 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 72 Side A 03/17/2014 11:30:34
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Expert Expert WAKENING WAKENING 93 A
: 6 (2006). 6 RBANISM RBANISM AND THE U OMMUNITY C EMOCRACY Where Garden City, City, Garden Where D 89 UERRILLA 349 349 G It is no wonder, then, that that then, wonder, no is It BUNDANT
: 92 A
107–08 (2010). 107–08 (2010). 90 HE COLOGICAL PACE T note 8, at 36, 44. 36, 44. note 8, at E S
, supra supra
LOCK , UBLIC B P DIY URBANISM DIY ESIGN FOR ESIGN ITES C Reformers in the Garden City, Radiant City, City, Radiant City, Garden the in Reformers EIGHBORHOODS B. The DIY Response , D 87 ETER N P
In order for vibrant cities to develop, some some develop, to cities vibrant for order In 91 & ESTER ) 2/15/2014 NSURGENT NSURGENT H note 4, at 2, 7. at 2, 7. note 4,
I note 38, at 51–52, 199. Latino Urbanism in Los Angeles: A Model for Urban Improvisation T. note 35, at 711, 735. 735. 711, at 35, note NIGHT ELETE K D in in supra supra AMILIES AND AMILIES C , ONTEMPORARY , , F OT OT C M supra N O at 735. 735. at RANT ANDOLPH YDON (D OHN
R -10 . Id. . OWER OF P DIY urbanism has arisen in part as an alternative to, and in part to 88. Aoki, 89 90. L 87. G 91. James Rojas, DIY urbanism proposes a series of small, alternative strategies to 93 92. J M K EMAKING OF AGANO C Y fill gaps left by, these broader trends in development spurred by the new urbanism movement. Radiant City, and City Beautiful proponents would have cleared large swaths of dense urban neighborhoods leaving the residents nowhere to low-income go, new former urbanism as it is actually practiced either creates places where the poor cannot areas afford where to they live are or such gentrifies that afford to remain. the few low-income individuals can long engaged citizens and “experts” so often distrust planners each other. too strategies often designed approach to benefit neighborhoods outside with constituents or preconceived to counter R
2013] 2013] new urbanists and earlier implementing generations building and of zoning planners code changes believed kinds and of that building developments, certain planners by could alleviate long-standing problems societal plaguing cities. City Beautiful, and new urbanist movements thus have in common the flaw that their plans, at least as implemented, leave no for practical the room poor. Per one misconception critic, that by eliminating the blighted conditions Le in which poor Corbusier and Burnham shared people the lived, one could eliminate poverty and its attendant problems. P THE processes need to begin from the bottom up. development policy rest on Manythe flawed assumption that failures only experts can in urban determine what a neighborhood needs. bring about change in cities in ways that, while gradual, may prove vital to long-term change in neighborhoods. and Reinvention The planners’ utopias were never realized. 34609-mqt_97-2 Sheet No. 72 Side A 03/17/2014 11:30:34 03/17/2014 A Side 72 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 72 Side B 03/17/2014 11:30:34
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B 95 12 (2008). Thus, allowing allowing Thus, 96 EACH B [97:2 [97:2 HE ELONGING 29 (2011). Authors Benjamin Benjamin Authors (2011). 29 , T (Nov. 1, 2011, 6:35 AM), AM), 6:35 2011, 1, (Nov. B OS K PACES S change eschew overly planned,
MITHSIMON AILY AILY S UBLIC P TRUCTURE OF note 98, at 30. Another interesting note: some , D S S ’ HE ITY The most private of spaces, the home, is is home, the spaces, of private most The T
supra note 92, at 118–19. : C 99 REGORY , G FOIA Request Reveals Zuccotti Park Owners Brookfield
& ORK Parks and clubhouses located in gated gated in located clubhouses and Parks supra supra “Ain’t No Sunshine”: Examining Informality and State Open , Y 100 The division between private space and various various and space private between division The Successful community development initiatives initiatives development community Successful 97 94 MARQUETTE LAW REVIEW LAW MARQUETTE EW OMMUNITY LOCK ) 2/15/2014 MITHSIMON N C
B S ,
HEPARD note 29, at 59. 59. at 29, note & S & ELETE D LOCK 27 (2007). 27 (2007). at 28–50. at 28–50. – supra B OT OT , NIGHT N Florida v. Jardines, 133 S. Ct. 1409, 1415 (2013). (2013). 1415 Ct. 1409, S. 133 v. Jardines, Florida O K ONTESTING at 30. 30. at HEPARD C ERN ENJAMIN C ETER (D See
: -10 . 623, . 626 623, . Id. 99 100. 101. S 98. B 94. Patience A. Crowder, 96. P 97. H Urbanists who promote grassroots DIY urbanist interventions allow for resident-driven changes to 95. M EV R
TREETS AGANO privately-owned privately-owned spaces are actually common. Occupy Wall Street took advantage of such a space in Zuccotti Park. Nyceve, Properties Heavily Taxpayer Subsidized Meetings Acts as the Anti-Public Norm in Inner-City Redevelopment Deal Making areas’ weaknesses. areas’ weaknesses. proceed from the perspective of leveraging a neighborhood’s strengths, deficits. on its perceived rather than honing in using its gifts, legal and physical spaces for DIY urbanism is all the more important in urban areas that have experienced residents allow decline, them as to focus the on their actions capabilities taken rather than by on the happen at the small scale. because community members decide to use their gifts. DIY urbanist activities bloom precisely Shepard Shepard and Gregory Smithsimon provide a public space, valuable depending on factors typology like who of controls the space nine and who different is excluded See generally id. from types it. of L. S 350 350 perceived urban ills. P the place from which we can exclude anyone and may engage in nearly any activity we like. though they may bear some of the physical marks and may allow some of the same uses as some play), are public definitively private. They are spaces closed to those segments of (walking, the congregating, even public and those activities that their owners choose to exclude. communities and pedestrian plazas in privately-owned outdoor malls, kinds of public space continuum are is many different physical, legal, and sociological variants. a continuum, not Private spaces are controlled by individuals and entities who a may decide dichotomy; within the who uses the space and how. awkward public spaces in favor of spaces that people actually use—what urban activist and author Matt Hern simply public, calls spaces. “common,” as opposed to 34609-mqt_97-2 Sheet No. 72 Side B 03/17/2014 11:30:34 03/17/2014 B Side 72 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 73 Side A 03/17/2014 11:30:34
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He He
The The T HROUGH 110 103
T : ]. OUR T ANGUAGE L UIDED UIDED ANGUAGE G
L A
: “Without common land ATTERN ATTERN P 109 ATTERN ATTERN 351 351 But even these are not all all not are these even But OSTON
P
B 104
: Public parks, plazas, and and plazas, parks, Public ., A 105 RAIL T Id. Additionally, few public spaces are are spaces public few Additionally, note 98, at 71. 71. at 98, note 107 supra REEDOM REEDOM , F DIY URBANISM DIY HE T
, 337 (1977) [hereinafter A [hereinafter (1977) 337 LEXANDER LEXANDER ET AL note 29, at 59. 59. at 29, note A ) 2/15/2014 note 96, at 159; Marc L. Roark, Homelessness, Place, and Identity: Identity: and Place, Homelessness, Roark, L. Marc 159; at 96, note MITHSIMON note 29, at 56. S
supra supra & , ELETE They may bear no physical or cultural connectivity to to connectivity cultural or physical no bear may They ANTZARIS supra D 106 supra supra , M , ERN OT OT ONSTRUCTION N at 30. at 29. at H C O
. NNA ERN , LOCK HRISTOPHER HEPARD (D Id.
12 (2010). (2010). 12 .Id . Id. . See -10 107 108. H 102. S Urban streets, sidewalks, and parks are ostensibly public. 106. B 103 104. 105 110. C Common spaces are places that are welcoming to all and are actually 109. A M K ISTORY UILDINGS AGANO C Y How Individuals Use Space to Project Identity file (on author). proposal) with grant (unpublished in the Face of City Gentrification 4–5, 15 boulevards may be spectacular to behold and win awards for landscape design even as their physical configurations, or the methods of policing them, discourage congregating. people, or certain people, from lingering or H B http://www.dailykos.com/story/2011/11/01/1032061/-FOIA-requests-reveals-Zuccotti-Park- owners-Brookfield-Properties-heavily-taxpayer-subsidized#. Per a deal it open. to keep had Park Zuccotti of owner with the city, the 2013] 2013] same is often true of the spaces surrounding large buildings in cities. P what Hern would call “common.” actually conceived and constructed in common by together. neighbors working used by people who may not know each other, from and who in one fact differ another in race, culture, age, or socioeconomic status. no social system can survive,” Christopher Alexander wrote. the surrounding neighborhood. government-owned government-owned park is an example spaces of described in Shepard the and Smithsimon’s most typology, as it public is owned of by the public government and excludes no one. colonial times, where residents of small New England towns grazed their livestock on a commons in the middle of the town, the idea of commons is as important for urban life today as ever. Though we tend to think of urban “commons” as a feature distinct to Urban plazas may be publicly segment or privately of owned, the open to landowner public, chooses a to welcome. broad or Physical markers alone do open not always communicate the private or public status of different urban plazas. only to those whom the private 34609-mqt_97-2 Sheet No. 73 Side A 03/17/2014 11:30:34 03/17/2014 A Side 73 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 73 Side B 03/17/2014 11:30:34
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First, First, DIY DIY Yet Yet , 33 U 111 116 113 Modern 112 (upholding a city Nicholas Blomley, Blomley, Nicholas
see also [97:2 [97:2 (9th Cir. 1996)
at 128–29. 128–29. at
note 98, note Great public spaces are participatory— are spaces public Great 115 supra , MARQUETTE LAW REVIEW LAW MARQUETTE note 93, note at 93, 385. ) 2/15/2014 MITHSIMON note 96, at 15. Block states that to create change we need to change S
& ELETE supra supra supra , Id. D , OT OT Actions such as the placement of sculptures, plantings, or or plantings, sculptures, of placement the as such Actions N 917, 929 (2012). (2012). 929 917, at 337. 337. at 117 337–38. at O ESTER LOCK HEPARD (D
. Id. . Id. . Id. 114 -10 113 114. B 116. H 111 112 Instead of large-scale developments that ignore or erase local 117. Roulette v. City of Seattle, 97 F.3d 300, 306 Commons do not arise solely by government fiat. Rather, they are 115. S EOGRAPHY AGANO created and stewarded, not simply admired, by their users. benches on sidewalks directly confront that primacy by taking a portion of the space away from walking or passing functions and rededicating it to beauty or leisure. Placement of decorative elements (e.g., yarnbombs on existing street fixtures; flower boxes plantings or in parking meters) abandoned challenges the newspaper dominant frame and joy. indirectly inviting pause, observation, by connection to history and culture, small DIY projects can embrace what some call “cultural planning,” involving local communities and created by the people who use them as they appropriate space for public “Reclaim the Streets” provided called use. A New York City movement a particularly assertive example dance of parties at intersections with this the express intention of when claiming the they streets staged for use by the elaborate people. G
352 352 identified two specific social functions served by common land. P the conversation. the conversation. common spaces allow people to feel comfortable outside of their private territory and thus these system; and spaces second, common land serves as connect a meeting place. people to the larger social life provides fewer opportunities for people to speak face-to-face, truly and public space—that is, common space—is dwindling. communication and dialogue are an essential component of community engagement, making it essential to retain occur. places where dialogue can urbanists who leave physical marks/changes on public space, or shift subtly the uses of them, likewise courts expand have the upheld city commons. ordinances asserting For the primacy example, for of sidewalks walking and passage, sidewalks. making it illegal to sit or lie down on ordinance that forbids sitting or lying down on public sidewalks); and Rabbits, Trees, Public Colored Dangerous Sitting: Police, Sidewalks, and City the 34609-mqt_97-2 Sheet No. 73 Side B 03/17/2014 11:30:34 03/17/2014 B Side 73 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 74 Side A 03/17/2014 11:30:34
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ITY IVIC IVIC C C 4:42
: If no no If HE 123 T ORK available at
in W , 120 EMOCRACY D Community Community Gardens and Urban AKING AKING 353 353 M
note note 29, at 69. For an example of civic , supra supra , UTNAM P
(describing (describing nightly debates in the public square in ERN D.
In selecting which projects to support, support, to projects which selecting In (1993) 124 DIY URBANISM DIY
OBERT note 123, at 33. at 33. 123, note 6 note 76, at 17, 33. 33. at 17, 76, note While some designers depart from the usual usual the from depart designers some While at 162.
note 96, at 159–60. In order for this to work, Cunningham and 121 at 161. However, Cunningham and Spencer’s design process is note 29, at 69; Colin Mercer, Cultural Planning for Urban Urban for Planning Cultural Mercer, Colin 69; at 29, note supra Id. TALY I supra Id. ) 2/15/2014 note 96, at 160; H , An unworked garden squanders labor and resources. resources. and labor squanders garden unworked An supra supra note 29, at 56, 59. 59. 56, at 29, note supra , 125 , ELETE ODERN supra supra D supra supra , LOCK ERN M , OT OT An excellent example of using both common space and and space common both using of example excellent An N H at 56. at 56. 118 (quoting Gwenne Hayes-Stewart, Executive Director of Gateway Greening). Greening). Gateway of Director Executive Hayes-Stewart, Gwenne (quoting at 24; Laura Lawson & Abbilyn Miller,
O ERN LOCK Top-down programs intended to involve communities on the the on communities involve to intended programs Top-down (D
BANDONMENT 122 . Id. . Id. . See . Id. A -10 122. Organizer and author Peter Block describes a radically different process used by 124. Lawson Miller, & 125 DIY urbanist interventions also foster community. Most urban 123 118 121. B 119. H 120 M K FTER RADITIONS IN AGANO C Y engagement engagement in public space, see R development development work is done by professional urban consultants, planners, and designers, architects, with perfunctory levels of community input built into the process. Agriculture as Antithesis to Abandonment: Exploring a Citizenship-Land Model This is in keeping with the history of social innovations: innovations local tradition is a renovated laneway in Vancouver, British Columbia. of of the design. B Bologna, Italy). Bologna, designers Ken Cunningham John and Spencer, a process in which citizen input forms the base local level can fail simply because there is no community buy-in. A Development and Creative Cities 8 (2006) (unpublished manuscript), T 2013] 2013] traditions. P process with radically citizen-oriented planning, meaningful community input into project selection and design from the early stages of a project is rare. Spencer incorporate many community-building and conflict resolution meetings they techniques facilitate. into the the exception, not the rule. one local sustains and maintains a project, it fades away. For example, a nonprofit organization called Gateway Greening supports almost all of the community gardens in support St. than Louis, it but can it fulfill. gets more requests for Executive Director Gwenne Hayes-Stewart seeks those that are backed by community involvement: “‘If it is not grassroots, and if money is top down, it is not going to work. Residents are tired of being told what is good for them.’” In revitalizing incorporating murals a and plantings added by local narrow residents, the to the community. place useful a vibrant style project created DIY- alleyway between two buildings and http://www.academia.edu/773280/Cultural_planning_for_urban_development_and_creative_ci ties. 34609-mqt_97-2 Sheet No. 74 Side A 03/17/2014 11:30:34 03/17/2014 A Side 74 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 74 Side B 03/17/2014 11:30:34
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2 C Y 4:42 EOPLE
RT AND P Cultural A HE T CONOMIES
: ELPING E OBERT PUTNAM H
Holston and and Holston : Abundance- 131 128 Lia Ghilardi, , http://www.grameen- ANK [97:2 [97:2 CONOMY So too, when citizens citizens when too, So B LACEMAKING E USTAINABLE USTAINABLE 126 see see also S , P Encompassing a wide wide a Encompassing note 15, at 48; R 127 OCAL HARING HARING 65–66; 65–66; RAMEEN L HIBLEY
S supra S
, G G. AND AND , (Aug. 6, 2010), http://urbantimes.co/2010/08/c 6, 2010), (Aug. IMES OBERT AW IN THE DIY urban interventions create needed needed create interventions urban DIY note 92, at 1 (1995). (1995). 1 L R
. T 130 In fact, people engage in citizenship in in citizenship in engage people fact, In & RB 132 NTERPRISE supra
E , , U RACTICING RACTICING LOCK MARQUETTE LAW REVIEW LAW MARQUETTE note 127, at 3; Holston, OMMUNITIES OCIAL P B
C note 15, note at 15, 39. S , ) 2/15/2014
note 96, at 25–26. The Grameen Bank is a prime example of the the of example prime a is Bank Grameen The 25–26. at 96, note , & CHNEEKLOTH RSI S supra supra
O ELETE , supra supra supra D H. , RSI UILDING OT OT NIGHT DIY forms of urbanism fit into this emerging model of of model emerging this into fit urbanism of forms DIY B O N K at 39–40. 39–40. at 129
O C LOCK YNDA ANELLE (D
A Short History of Grameen Bank OOPERATIVES
. Id. . See .J . Id. C -10
132 133 127 130. L 126. B 131. Holston, Thus, another new form of community activism is arising in the face A bottom-up form of city-building creates what anthropologist 128 129. M UILD RACTICE OF AGANO Planning for Place Making Part 2 Part Making Planning Place for of many cities, contending that arises from an orientation toward the state as the only legitimate avenue an impulse toward central for activities planning of citizenship. other planning scholars eschew the centralized, state-centered planning generate small interventions in their physical space, their projects can matter endure. is high, and such stake in the many ways not mediated by the state; bottom-up building, including the DIY urbanism described in this Article, allows for that to happen. info.org/index.php?option=com_content&task=view&id=19&Itemid=114 info.org/index.php?option=com_content&task=view&id=19&Itemid=114 (last updated Jan. 2013). 1, space for connection and dialogue within communities. James Holston calls “spaces of insurgent citizenship.” P B 354 354 imposed from above, even with substantial capital investments, may fail, and many innovations that begin small and grow slowly movements that bring about great social change. become large P latter. local community with a focus on local abundance. variety of associations and activities, the sharing economy promotes (2012). placemaking, providing new connected ways world for to people community in which they live. also in a engage modern, with tech- the physical space of the ultural-planning-place-making-part-2/ (discussing cultural on focus a assets). local centered community organizing focuses on the gifts already present the in people, history, and structures of the increase existing place and satisfaction works to through processes. participating in cooperative creative of what many see as localized, a permanent and shift grassroots toward sharing a economy. more cooperative, 34609-mqt_97-2 Sheet No. 74 Side B 03/17/2014 11:30:34 03/17/2014 B Side 74 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 75 Side A 03/17/2014 11:30:34 PM
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(2000). (2000).
18 The Street – 2013 Report 16 OMMUNITY C 355 355 MERICAN note 11; Emily Badger, Badger, Emily 11; note Today, those infrastructure infrastructure those Today, A 137 supra Models of State Intervention in Distressed (May 7, 2012), http://www.theatlanticcities.co 2012), 7, (May Small-scale urban projects, again, again, projects, urban Small-scale — 138 . 881, 882 (2012). The 2013 Report Card for EV ITIES EVIVAL OF R R C
L.
. DIY URBANISM DIY IN , ASCE (2013), http://www.infrastructurereportcard.org/a/do (2013), ASCE , C
TLANTIC , A , OLLAPSE AND OLLAPSE note 93, note at 93, 256. 8, ) 2/15/2014 A Tale of Four Cities Practicing civic engagement thus engenders civic civic engenders thus engagement civic Practicing note 15, at 46. , 80 U. C note note 35, at 711; Taylor, 136 note 35, at 711. allowing some flexibility or breathing room in how we we how in room breathing or flexibility some allowing HE ELETE supra supra T 134 supra
, : D supra supra OT OT City Beautiful proponents believed that a properly-planned properly-planned a that believed proponents Beautiful City N 135 LONE O ESTER A (D
-10 Too often, cities only look to big-budget projects to revitalize a There . . . . neighborhood are projects simply to go around. not We want enough to encourage small, low-risk, of those 137. Aoki, 138. Omer Kimhi, 134. Holston, 135. H On a more practical note, some small-scale interventions are 136. Aoki, M K OWLING AGANO C Y America’s Infrastructure disseminated by the American Society of Civil Engineers gives the nation an overall grade of D+, citing “a significant backlog of overdue “pressing maintenance” need for and modernization” a of infrastructure. Am. Soc’y of Civil Eng’rs, engagement. engagement. necessary simply because large-scale changes are expensive. The Beautiful movement City eventually lost steam because the pressing need for road, transit, and sewer infrastructure left limited funding available for grand concourses, libraries, and the like. allow people to use their urban spaces enables those natural features of an evolving society to thrive. Spaces can be made flexible, so that many environments can serve abandoned more or underused than pockets of one adaptation, urban which space purpose; can in creative make turn way resilience. enhances use for both of democratic and ecological m/neighborhoods/2012/05/street-hacker-officially-embraced/1921/. m/neighborhoods/2012/05/street-hacker-officially-embraced/1921/. Localities Fiscal Affairs B 2013] 2013] Human indeterminacy; social life includes contradiction, ambiguity, and P this by practicing civic engagement in their creation of small spaces for daily interaction. urban environment could itself instill civic values; DIY urbanists invert Wharton: work around that deficiency. As noted by Memphis Mayor A. C. projects are crumbling, and state and local governments are scrambling to pay for basic services; large-scale centralized redevelopment is not in the immediate plans of most cities. Card for America’s Infrastructure Card America’s for cuments/2013-Report-Card.pdf. Hacker, Officially Embraced 34609-mqt_97-2 Sheet No. 75 Side A 03/17/2014 11:30:34 03/17/2014 A Side 75 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 75 Side B 03/17/2014 11:30:34 M K AM
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141 America’s A greater A greater 142 note 77, at 332–33. 332–33. at 77, note supra [97:2 [97:2 note 110, at 243–45. at 243–45. 110, note These interventions can can interventions These 2 (Feb. 2013), 2013), (Feb. 2 http://sfpavement 140 supra supra , http://www.timessquarenyc.org/ , http://www.timessquarenyc.org/ , ARKS P TO QUARE S
ANGUAGE 139 L IMES , T AVEMENT http://www.innovatememphis.com/wp-content/uploads http://www.innovatememphis.com/wp-content/uploads note 140. 140. note , P , ATTERN ATTERN P
(May 20, 2010, 4:40 PM), http://www.forbes.com/2010/05/20/ PM), 4:40 2010, 20, (May supra , ., A C. Aims of DIY Urbanism MARQUETTE LAW REVIEW LAW MARQUETTE available at ORBES ) 3/16/2014 , F , note 29, at 46. Times Square itself is, of course, the ultimate U.S. U.S. ultimate the course, of is, itself Square Times 46. at 29, note Thus, allowing some flexibility for community community for flexibility some allowing Thus, 143 ELETE Public Space Projects Space Public D , supra , OT OT N O LEXANDER ET AL ET LEXANDER ERN (D
. See, e.g. . PublicProjects Space -10 San Francisco Manual Parklet Francisco San community-driven community-driven improvements all across our city that can add change. long-term up to larger, Though some of the DIY urbanist interventions considered in this 139. Press Release, Memphis Mayor’s Innovation Delivery Team, Mayor Wharton 140 143. A 141 142. H All of this goes to say that cities need small-scale change. Of course AGANO Article are purely instrumental, expressive and most others perform message about a are specific need in a community and simultaneously move chiefly dual utilitarian functions—they or communicate a tourists and suburbanites, places where the cost of housing and cultural amenities is out of reach for the majority of urban residents. many of these changes gentrified areas are or in market-driven downtown and entertainment districts located appealing in to already- number of projects, each more localized to a particular neighborhood, can be conceived citizenry, especially and in out-of-the-way realized corners of cities through being that, regional while the destinations, not can develop engagement into neighborhoods. focal of nodes for local healthy it is possible for a city changes or in a top-down fashion, a and some do. private developer to institute small-scale members to engage in these smaller improvements innovation allows throughout a for city, so healthy that its development may proceed in a gradual and continual population. way appropriate to the local setting and top-tourist-attractions-lifestyle-travel-magic-kingdom-disneyland-times-square.html. With McFarlane, generally see of centers, such development regard the to
356 356 P Announces Announces New Initiatives in Neighborhood Econ. Vitality Plan quotation omitted), marks (Nov. 10, 2012) (internal /2013/01/MEM-Press-Relase-Nov10.pdf. be successful, as when the Times Square Alliance and commissions architects artists to design community-building uses of the space. Dep’t, about-the-alliance/public-space-projects/index.aspx (last visited Oct. 22, 2013); (last Oct. about-the-alliance/public-space-projects/index.aspx 2013); visited 22, S.F. Planning toparks.sfplanning.org/docs/SF_P2P_Parklet_Manual_1.0_FULL.pdf. toparks.sfplanning.org/docs/SF_P2P_Parklet_Manual_1.0_FULL.pdf. tourist destination for domestic and international visitors alike. Top Tourist Attractions Valaer Murray, 34609-mqt_97-2 Sheet No. 75 Side B 03/17/2014 11:30:34 03/17/2014 B Side 75 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 76 Side A 03/17/2014 11:30:34 , PM
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corner, corner, 147 this 357 357 , http://www.cowparade.com/our-story/ In an increasingly disconnected disconnected increasingly an In note 23. ARADE 146 P the message. Rather than relying solely supra OW , is , C DIY URBANISM DIY They encourage connection, dialogue, and and dialogue, connection, encourage They 145 note 8, at 49 (demonstrating urbanismthat tactical involves using note 29, at 56. 56. at 29, note Seattle History of a Pig, a Piggy Bank, and Pigs on Parade Our Our Story
) 2/15/2014 Id. supra neighborhood? neighborhood? note 13, at 1. 1. 13, at note note 13, at 6. 6. 13, at note supra supra Painting Crosswalk , ELETE D this ERN supra supra OT OT The projects thus push city dwellers to confront basic basic confront to dwellers city push thus projects The N H Merker, DIY urbanist artworks aim precisely to generate discussion. discussion. generate to precisely aim artworks urbanist DIY “[T]he health of public space is closely tied to the health of democratic life: they they life: democratic of health the to tied closely is space public of health “[T]he 144 (May (May 7, 2009), http://www.examiner.com/article/seattle-history-of-a-pig-a-piggy- O Following the example of dozens of cities around the world world the around cities of dozens of example the Following 148 (D See
149 The pig exhibit in Seattle, like much public art, was not without without not was art, public much like Seattle, in exhibit pig The . Id. . See -10 150 block, or 149. Hou, 150. Sara McGrath, The expressive elements of DIY urbanism arise from an impulse 144. Goodyear, 145. 146 Some DIY urbanist interventions are, above all, a form of 147. Hou, 148 M K XAMINER XAMINER AGANO C Y E bank-and-pigs-on-parade; bank-and-pigs-on-parade; require one another.” another.” require one change). public to space seek toward creating physical spaces for people to pause each and other interact with in the city. questions of land use: How should we shape our cities? How should we manage the balance between the needs of people on foot and the needs of people in cars? What vision of urbanism is best suited for this expression. The intervention on words on paper (or pixels on a screen) urban to convey ideas about space how should showing. be used, tactical urbanists communicate by (last visited Oct. 24, 2013) (discussing how there have been have over fifty cities staged worldwide that CowParade events Brussels, Buenos Aires, Boston, since Paris, and Milan). CowParade spin-offs have ranged widely, 1999, including Chicago, including New Baltimore’s York “Crabtown City, Arizona’s Tokyo, Project,” “Javelinas on Vancouver’s Parade,” and “Orcas dozens of in others. the Rob Hiaasen City,” & Glenn Sedona, McNatt, corner. engagement with public space and other members of our communities, and therefore enhance democracy. Such was the impact of one sculpture that appeared on a Seattle street
2013] 2013] toward filling that crosswalks where it is dangerous to cross need. the street, DIY urbanists seek to Through demonstrate how interventions they improved. think like their temporary urban environments could be P society in which public life is interventions represent a powerful contemporary counterforce. undergoing an alarming erosion, these that have participated in sculptures of “CowParade,” cows painted an or decorated by exhibition local Seattle created artists of its own or spin-off, “Pigs businesses, on fiberglass Parade,” in 2001 and again in 2007. 34609-mqt_97-2 Sheet No. 76 Side A 03/17/2014 11:30:34 03/17/2014 A Side 76 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 76 Side B 03/17/2014 11:30:34
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124 338
, C Y . COM HITE . “Herd “Herd Watch 12:53 HOULD EV
W S R ASE
L.
. , PB Pigs on Parade EB ICHAEL ICHAEL (Nov. 1, 2010), , 92 N mounds of teddy teddy of mounds (June 29, 2012), 2012), 29, (June Sept. Sept. 9, 2000, at 1D; Ian 156 OMPANIES THAT
COM , . C [97:2 [97:2 9 (2011); John Intini, Intini, John (2011); 9 OST , http://www.pbase.com/ http://www.pbase.com/ , P KBW so-called “ghost bikes”— “ghost so-called IVABILITY Javelinas Javelinas on Parade ADE BY COM . 155 Smoked Smoked and Aged—Country Kind of Simple handmade crosses crosses handmade Simple M , W 154 ASE (Balt.), Jan. 22, (Telegraph), at 2005, 1A; , L KLAHOMA O , Aug. 13, 2001, at 8; Jaclyn Asztalos, INCINNATI UN , PB , S S ’ C
, ISTAKES ISTAKES IME IME HE M
: -T . 1, 47 (2005). 47 . 1, , T LD EV ACLEAN O R
, M L.
LUNDERS Dead Dead Sorrow: A Story About Loss and a New Theory of B B.U.
(2002); (2002); Carole L. Philipps,
MARQUETTE LAW REVIEW LAW MARQUETTE Private Memorials on Public Space: Roadside Crosses at the In this case of expressive intervention, one one intervention, expressive of case this In TORIES TORIES OF , 85 Watchdog Warns Government over Poor Data on Road Deaths 95 ) 3/10/2014 153 Intended as an anti-consumerist statement mocking mocking statement anti-consumerist an as Intended , S note 13, at 1. 1. 13, at note 152 ARKETING ARKETING ELETE ARY One night, someone weighed in on the controversy in a a in controversy the on in weighed someone night, One D M ETTER D B 151 supra OT OT Orcas in the City-Vancouver 2004 N
O Pigs Pigs Decorate Uptown Lexington (D AVID
NOWN . Id. . Id. -10 , BBC (May 23, 2008, 6:10 AM), http://news.bbc.co.uk/cbbcnews/hi/newsid_7410000/ne 6:10 AM), 2008, 23, BBC (May , K 152 153 154. Amanda Reid, 155. Andrew J. McClurg, 151. Hou, 156. Anne Gulland, Another type of expression that has become more pervasive in AVE AGANO NTERNATIONAL NTERNATIONAL Intersection of the Free Speech Clause and the Establishment Clause About Buffalo” Raising Money for Roswell bears, flowers, notes, and candles turn the sites where children have Out—Edmonton Out—Edmonton Wants Your Bison stripped-down bicycles painted entirely where cyclists have white—mark been killed street by motor corners vehicles; jachurch/orcas_in_the_city jachurch/orcas_in_the_city (last visited Oct. 24, 2013); Ham—Kentucky Ham—Kentucky Celebrates Its Own Pig Gig the “Pigs on Parade” event, the artwork also of a deposit before placing art requirement the city’s illegal way, flouting used public space in an on the sidewalk. I http://www.pbase.com/wailee6/javelinas http://www.pbase.com/wailee6/javelinas (last visited Dec. 8, 2013). Seattle was not selecting alone porcine civic in representation; fiberglass pigs have also visited Bath, England; Cadiz, Kentucky; Cincinnati, Ohio; and Lexington, North Carolina. M James Church, Church, James (2013). Wrongful Damages Death H http://www.wkbw.com/news/local/Herd-About-Buffalo-Raising-Money-for-Roswell- 106438823.html. Feasting on Crab Sculptures by the Bushel 358 358 controversy. P memorialize the victims of car accidents; BMJ 1167, 1167 (May 2009). (May 2009). 1167 1167, BMJ Curcio, http://livability.com/Lexington/nc/attractions/pigs-decorate-uptown-lexington; Bath in wsid_7415400/7415462.stm. My home at the time I wrote this piece, Oklahoma City, shares with Edmonton, Alberta, and Buffalo, New York, the common distinction of having honored the North American bison—though only Edmonton name. referred to D the animal by its proper uniquely expressive way by installing an eight-foot long metal pig on a public sidewalk. recent years is spontaneous memorials. unsanctioned sculpture of a pig made a more pointed social statement, and spurred a wider discussion, than written article or letter to the editor alone. could have been achieved by a 34609-mqt_97-2 Sheet No. 76 Side B 03/17/2014 11:30:34 03/17/2014 B Side 76 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 77 Side A 03/17/2014 11:30:34
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RBAN 4:42
U They They 161 IVERSITY IVERSITY IN D and larger more more larger and 157 359 359 In addition, spontaneous spontaneous addition, In 162 OSSIBILITY AND P Spontaneous memorials can be be can memorials Spontaneous
: Transforming Transforming Public Space into Sites of 158 , right here, on the streets that you 150. 150.
PACE S here note 154, at 137–38, 177. 177. 137–38, at 154, note OOSE DIY URBANISM DIY L note 157, at 157, note note 157, at 137, 140, 145, 152. 145, at 140, 137, 157, note The sight of a roadside memorial or ghost ghost or memorial roadside a of sight The in supra , 163 note 154, at 138–42 (describing the role of roadside memorials memorials roadside of role the (describing 138–42 at 154, note
supra supra note 155, at 40, 46–47. 46–47. at 40, note 155, supra ) 2/15/2014 note 154, at 145. 145. at 154, note supra supra ELETE Roses individually wrapped in cellophane do not not do cellophane in wrapped individually Roses D The existence of these communal spaces allows allows spaces communal these of existence The at 145–46; Reid Reid 145–46; at 159 supra 164 OT OT N at 45; Reid, Reid, 45; at 152. at at 138. 138. at at 135. 135. at O (D
Id. Paxson, Franck &
. Id. . Id. . See id. . . Id. 166 -10 132, 144 (Karen A. Franck & Quentin Stevens eds., 2007). 2007). eds., Stevens Quentin & Franck A. (Karen 144 132, 162 166 160. 161. McClurg, 163. Paxson, Franck & 164 165 157. Karen A. Franck & Lynn Paxson, 159. Reid, 158 M K IFE AGANO C Y in the bereavement process). in bereavement the serve a healing purpose for survivors. bicycle where a pedestrian or cyclist addition has to memorializing the been individual, the display killed raises the viewer’s is sobering. awareness In of a problem in their immediate being killed surroundings—People by guns (or by are cars) individuals, including groups like children “who ‘speak’ in might a not public otherwise forum,” to express their their individual voices own through contributions of drawings, notes, and memorabilia. unattractive. elaborate displays of objects, areas near signs, mass tragedies or disasters. and memorabilia accumulate at L 2013] 2013] fallen to gun violence to places of remembrance; P compose lovely displays; stuffed toys left in urban environments quickly accumulate grime; photos and written notes smear and fade in the rain. But despite the arguable shortage of aesthetic value of the displays, the use of public space for DIY memorials serves multiple human values. Mourning and Free Expression memorials often become places of communal gathering, “vital spaces for a participatory and inclusive community democracy,” members can where participate in a the signs speech wide activity variety or of leaving of memorabilia tragedies to in the express future. their hope of preventing similar about that. travel—and may spur action—Let us, as a community, do something Memorial spaces can even allow for dialogue when agree. the voices do not fulfilling the deep-seated human longing to be remembered. First, the displays dignify and honor the person or people killed by 34609-mqt_97-2 Sheet No. 77 Side A 03/17/2014 11:30:34 03/17/2014 A Side 77 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 77 Side B 03/17/2014 11:30:34
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C Y (Ben (Ben
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5, IAMI IAMI NEW , M ERKELEYSIDE , B 64, 74–75 (quoting a
NTERVENTION NTERVENTION I [97:2 [97:2 note note 76, at ETHINKING R
: supra supra
, IJACK H The effect is immediately aesthetic, as the the as aesthetic, immediately is effect The Eschewing private galleries and instead instead and galleries private Eschewing 171 BANDONMENT ULTURAL ULTURAL 169 A C
In a city with over 30,000 abandoned homes in in homes abandoned 30,000 over with city a In in Detroit Art City: Urban Decline, Aesthetic Production, Public 167 , MARQUETTE LAW REVIEW LAW MARQUETTE Other artistic interventions may be less overtly overtly less be may interventions artistic Other FTER Inside the Mind of an (Anonymous) Yarn Bomber 170 ) 2/15/2014 A Preface
ELETE ITY D C The Object Orange artists are part of a movement of of movement a of part are artists Orange Object The
OT OT 168 at at 69, 75 (quoting another “Detroit Demolition Disneyland” manifesto) N HE
at 67. Using a similar tactic, citizens in Miami tackled pervasive weeds springing springing weeds pervasive tackled Miami in citizens tactic, similar a Using 67. at O T Id. (D
in . Id. . Id. . See id. -10 , (Nov. 25, 2011, 9:30 AM), http://blogs.miaminewtimes.com/riptide/2011/11/weed_bomb AM), 9:30 2011, 25, (Nov. 169 168 171. Tracey Taylor, 172 170. Ben Parry, 167. Andrew Herscher, In another purely expressive intervention, from 2005 to 2006, a AGANO up in vacant lots and dilapidated sidewalks with the medium of spray paint. Michael Miller, “Weed Bombing” Transforms Downtown’s Urban Blight into Psychedelic Bling (internal quotation omitted). marks group of artists launched what they called Object Orange, in which the artists selected abandoned Detroit houses “‘whose most striking feature [was] their derelict appearance’” and caked every square inch facades of (including any remaining their doors and windows) with a thick layer of bright orange paint. manifesto of Object Orange’s predecessor group, “Detroit Demolition Disneyland”). Demolition “Detroit group, manifesto of Orange’s Object predecessor resulting “yarnbombs” add color and interest to the urban space. political in their involves encasing urban purposes. objects—bike racks, statues, tree branches—in colorful The custom-knit wraps. phenomenon of “yarnbombing” TIMES Parry et al. eds., 2011) (internal quotation marks omitted). marks 2011) quotation (internal Parry al. et eds., (July 20, 2010, 10:00 AM), http://www.berkeleyside.com/2010/07/20/inside-the-mind-of-an-
inserting art into public space where people will interact with it as they go about their daily lives is central to the message of so-called “cultural hijackers” who combine art generated and cit[ies].” social action while shaping “user- 360 360 various states of disrepair, the artists’ stated purpose was “to accentuate something that landscape.” has wrongfully become part of the everyday P self-titled “weed-bombers” simultaneously transform catching streetscapes and make the a pointed commentary about the lack offending of maintenance of city vegetation property. into eye- ing_transforms_downto.php. ing_transforms_downto.php. Using startling neon shades of orange, pink, lime, and blue, the Interest contemporary artists who do not see art as a sphere separate from rest the of social life, but activism, rather using art approach as cultural their activism. work These intervention from artists with a engage view toward a in the relationship urban between stance the artist and of the (collective) audience. anonymous-yarn-bomber/. anonymous-yarn-bomber/. Although the artists who create the preference yarn for keeping installations art in may the express community where a people will see it, 34609-mqt_97-2 Sheet No. 77 Side B 03/17/2014 11:30:34 03/17/2014 B Side 77 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 78 Side A 03/17/2014 11:30:34 PM
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A 8–9. 8–9.
ITY ITY at C Id. HE T in , Introduction 361 361 Some of this happens legally, through a a through legally, happens this of Some 9. 174
DIY URBANISM DIY 7,
173 ) 2/15/2014 note 76, at 76, note In those instances, residents responded to to responded residents instances, those In These individual, instrumental uses of private land, land, private of uses instrumental individual, These 175 ELETE 176 D supra One census tract in the Brightmoor neighborhood, in which 56% of the the of 56% which in neighborhood, Brightmoor the in tract census One This quote from one anonymous yarnbomber is yarnbomber revealing: anonymous one from This quote
, OT OT N at 9. at O (D
. id. See . See id. . Id. -10 craft of knitting. . . We . like to put up a bunch at once so that it show is and more pedestrians can of stroll an among art them. Like a knitting . forest.I’d . . like to art little galleries comment. as a to next start putting bombs yarn I like to see knitting that is a comment on the art and history of the great art and I like yarn bombing visually—knitting looks so good on impersonal urban environment. I love being able to change a a street with color, it’s a harsh metal pole in an surprising power. Politically I like art being out on the street instead of elite in a more. . . Also setting. it gives people overlooked for . audience art. . . I like to see yarn a bombing little with content to it; a lot of pleasure, especially little kids, an 173 Other more purely instrumental motives drive some uses of urban 175 176 Given the public nature of the spaces used, even those urban 174. Margaret Dewar & June Manning Thomas, M K
BANDONMENT AGANO C Y space. In Detroit, where tens of thousands of residential lots are vacant, many residents have taken control of lots adjacent to their own homes, using the expanded swimming pools space or gardens. for home additions or outbuildings or residential lots stood vacant, nearly 250 lots had been so used or consolidated. consolidated. or been used so 250 had residential lots lots stood nearly vacant, A
2013] 2013] the yarnbombs do not express itself. presence of the art goals beyond those achieved by the P city program that transfers title to homeowners for consolidation, some and illegally. Id. abandonment by taking control of and private remaking space. the environment as status of skateboarding or parks or public space. interventions with a strong utilitarian component are often intended, at least in part, as expressive. The goals of some urban gardens, for including illegal squatting in its various forms, are distinct from the more in its various squatting including illegal public-oriented actions that are contrast, the focus residents of turn this gardens, paper. the vacant motive is still instrumental—the neighborhood new When, possessors do intend in lots to use into the community land for because they a invite other productive members of use—but the community not to participate necessarily the in garden. exclusive, Chiefly instrumental When uses skateboarders in Oakland construct parks for their own use in the occur on public land space as under freeway overpasses, practical motives—the need for a place well. to skate—likely outweigh any desire to make a statement about the 34609-mqt_97-2 Sheet No. 78 Side A 03/17/2014 11:30:34 03/17/2014 A Side 78 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 78 Side B 03/17/2014 11:30:34
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The The 183 Each of of Each 180 In Better Block Block Better In 181 [97:2 [97:2 note 29, at 56. 56. at 29, note supra , These include “sustainable food food “sustainable include These ERN 178 , H see, e.g. see, But many guerilla gardening interventions interventions gardening guerilla many But note 76, at 87, 92, 95, 99 (explaining how Youngstown note 123, at 19. at 19. 123, note 177 note 35, at 700. note 10. 10. note note 4, at 13. 13. 4, at note supra supra MARQUETTE LAW REVIEW LAW MARQUETTE supra ) 2/15/2014 note 4, at 16; at note 16; 4, note at 4, 16. supra supra supra , , Volunteers create temporary landscaping and build build and landscaping temporary create Volunteers ELETE Aoki, Aoki, supra supra , Schatz, D 182 , ,
OT OT YDON N L
In Dallas, the temporary transformations of the first Build a a Build first the of transformations temporary the Dallas, In O YDON YDON see also see 184 (D L
. .Better Block .Better . Id. . See id. . See, e.g. . See -10 179 182 183 184 178. L 177. Lawson Miller, & 180 181 Larger, more formal projects like the Build a Better Block project AGANO have expressive aims, both aesthetic and political, with projects designed aims, both aesthetic and political, have expressive to beautify ugly streetscapes with tidy landscaping, to bring weedy lots to bloom with attractive flowers, concrete urban environments, to and “to raise awareness” for a wide range “introduce more greenery” into of social and environmental issues. systems, urban storm-water aesthetics, and management, the power improving of short-term, neighborhood collaborative local action.” Better Block project included closing a full lane replacing to vehicle it traffic with and landscaping and a bike lane painted with temporary interventions, groups of local activists reimagine a few blocks of urban landscape by temporarily transforming urban them spaces. into vibrant, walkable
these initiatives adopts global problems. or even solutions for greater regional a local strategy to generate dialogue also and have a mix of utilitarian and expressive goals. 362 362 example, include the straightforward utilitarian aim of providing fresh produce to city dwellers. P seating and bike storefronts with racks; temporary “pop-up local [shops]”; and spill retailers out existing onto businesses the and sidewalk with extra artists seating and landscaping. fill abandoned pop-up shops, the artists, and the civic groups that participate do so not for the money to be made that but weekend to demonstrate possibilities: They show the wider community what demonstration can block or be another like done, it, whether to create on pockets the the city. of vitality in community members take matters into solutions); their own hands to implement large-scale urban Other DIY urbanist interventions grapple with transportation, abandonment large and decay, urban and issues gentrification. of 34609-mqt_97-2 Sheet No. 78 Side B 03/17/2014 11:30:34 03/17/2014 B Side 78 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 79 Side A 03/17/2014 11:30:34 PM
4:42 ETTER
B HE In some some In , T 189
note 10. supra
, 363 363 186 EGITIMACY L What Helps or Hinders Nonprofit Developers in at 12. at 12.
see Better also Block see DIY URBANISM DIY note 174, at 9. at 9. 174, note note 4, note Similar projects have now taken place in in place taken now have projects Similar UESTIONS OF UESTIONS 185 Q
supra Prototyping Cycle Prototyping Tracks Cities Dominated in Auto supra , III. ) 2/15/2014 note 4, at 13; at note 13; 4, YDON ELETE supra D , L , A. Normative Acceptance of DIY Urbanist Acts OT OT Cities that have seen rapid population decline often have a a have often decline population rapid seen have that Cities N 188 at 7–9; Margaret Dewar, Dewar, Margaret 7–9; at O YDON (D In space with little competing actual use—termed here here use—termed actual competing little with space In
. See, e.g. . Id. 187 (July 16, 2013), http://betterblock.org/prototyping-cycle-tracks-in-auto-dominated- -10 187 Whether a DIY urbanist intervention is formally legal turns on 185. L 188. Thomas, Dewar & 189 Whether a particular DIY urbanist intervention gains acceptance Uncontested space, in the context of this Article, is any easily 186. Andrew Howard, M K LOCK AGANO C Y cities/. space. wider community succeed in altering property regimes—they change, in some way, the relationships between respect to their rights to urban space. people in the community with questions of property particular law intervention is and normatively municipal acceptable community, however, to regulation. is the a surrounding broader matter. Whether DIY urbanist acts depends Normative on a the acceptance nature of the of space used and on purpose or the utility of the action, and whether the use interferes with the preexisting beneficial use by another user or group of users in the same with the surrounding community turns largely on the utility of and the the contested or use uncontested nature of the space in which it occurs. The community’s acceptance, in turn, ends up influencing the legality of the act. Guerilla urbanists whose illegal acts become embraced by the underused or uncontested space—DIY urban interventions will often be viewed as legitimate whether or not they are legal. and endure with wide normative acceptance B 2013] 2013] cornstarch-based paint. abroad. and one dozens of cities nationwide P surfeit of abandoned properties, defined by that sociologists as are properties no (eventually) longer on being which property used taxes are or not being maintained paid. by the owner, and accessible urban place, whether privately or publicly owned, that no one is actively using. Some privately-owned spaces are uncontested because they are underused or because they were abandoned by those who have legal title. 34609-mqt_97-2 Sheet No. 79 Side A 03/17/2014 11:30:34 03/17/2014 A Side 79 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 79 Side B 03/17/2014 11:30:34
, M K PM
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A DUARDO E QUATTERS ITY S C Flowers in the OW 281, 285–86 (2004) HE H
: T in Blomley, See generally
148 (2010) (discussing the the (discussing (2010) 148 , [97:2 [97:2
note note 13, at 13. Jeffrey Hou note 13, at 13. Where these EOFORUM UTLAWS O See id. See supra supra note 9. , 36 G WNERSHIP O supra supra ROPERTY , 9. These uses raise few objections objections few raise uses These
, P AW OF L 192 ATYAL K
note 174, at 9. at 9. 174, note ]. note 174, at note 174, K. 193 Sidewalk Sidewalk Seating MPROVE THE note 4, at 16, 25, 46; Hou, I supra supra MARQUETTE LAW REVIEW LAW MARQUETTE ONIA S ) 2/15/2014
note 76, 174, 177. 177. 76, 174, note supra Thus, though title may rest in private hands one day day one hands private in rest may title though Thus,
& , 190 ELETE
, Goodyear, D supra ROTESTERS , YDON Id. OT OT P Both actions are technically illegal (trespass law applies to to applies law (trespass illegal technically are actions Both L N O Flowers in the Bathtub the in Flowers 194 EÑALVER EÑALVER (D Dewar & Thomas, Thomas, Dewar &
AND AND P , . See, e.g. . . See 191 -10 193 The usefulness and beauty of the act matters. In one Detroit census 190 191. In Detroit, as noted elsewhere, the city has allowed many of these properties to 194. Thomas, Dewar & In uncontested space, the nature of a DIY urbanist intervention 192 OISÉS BANDONMENT IRATES AGANO reclamations involve physical alterations to the urbanism. of DIY examples successful transformative and environment, they can comprise the most dumping. tract with over a thousand vacant lots in 2010, twenty of those lots had been transformed to gardens and another 166 had become sites of illegal strategy of acquiescence in outlaw property actions); Nicholas [hereinafter likely to gain community acceptance are DIY urban interventions that reclaim uncontested space in new, instrumental ways available to all— for example, miniature lending libraries, place street to furniture providing sit, a and urban whether they are legal (as with an amenity on one’s own land or on a lot gardens. used by permission) or illegal (as with amenities placed phone booths, on sidewalks, in or on vacant lots). By tacit acquiescence or abandoned by active participation acceptance the of project. in the use, the community demonstrates matters in establishing whether it will face normative approval. Most M P Reusing Vacant, A Abandoned, and Contaminated Property? 364 364 cases, these properties may government entities that hold tax liens, and, if unsold be at auction, remain subject to public property. foreclosure by the local P the vegetable-planter and technically the instrumental (a place couch-dumper to put alike) garbage is and a “use,” albeit both an are defines reclaiming as “adaptation and reuse of abandoned or underutilized urban spaces for new and collective functions and instrumentality.” Hou, and in public hands the next, if the city fails to exercise stewardship or transfer ownership to someone who will, the character of a property as abandoned—and the character of the space as uncontested—stays same. the transfer to private hands by selling them at a low price to adjoining landowners who expand their property. Bathtub: Boundary Crossings at the Public-Private Divide 34609-mqt_97-2 Sheet No. 79 Side B 03/17/2014 11:30:34 03/17/2014 B Side 79 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 80 Side A 03/17/2014 11:30:34
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351, 351, 4:42 , L.A. Y
Art Art
’ 201 10. OL – P
.
633, 634, 648 UB P (Dec. (Dec. 31, 2012),
&
. EFORM But one use is is use one But R ITIES ITIES
195 note 174, at 9 C EGIS L J.L.
.
J.
supra
196 , ICH M TLANTIC TLANTIC
365 365 , A 3 N.Y.U.
, , 26 U. Even legal activities that are are that activities legal Even 200 Of yarnbombing, one critic rather rather critic one yarnbombing, Of 202 Dewar & Thomas & Dewar
Community Development Through Gardening: State Group Group Protests Graffiti at Furniture Warehouse
DIY URBANISM DIY The same activity that might be seen as as seen be might that activity same The 203 The Writing on Our Walls: Finding Solutions Through 197 note 198, at 650. at 198, note note 167, at 72. at 167, note note 200 (quoting Amanda Erickson). Amanda note (quoting 200 ) 2/15/2014
supra 35. supra supra ELETE supra supra – , Phil Sneiderman, D , Jane E. Schukoske, Urban Trends We Hope Die in 2013 OT OT N Gómez, Gómez, at 650 (“Graffiti has been called everything from destructive vandalism to art.”); art.”); to vandalism destructive from everything called been has (“Graffiti 650 at at 634 at O (D
. Johnson, . See, e.g. .In Detroit, the city tolerates both beneficial and harmful illegal land uses by neither neither by uses land illegal harmful and beneficial both tolerates city the Detroit, .In . See . See, e.g. . Herscher, . Marisa A. Gómez, . Id. . Id. -10
, Apr. 21, 1990, at B3 (explaining that community members protested commissioned 203 201 196 202 Because beauty is subjective, the use of uncontested spaces for 195 197 198 200 199 M K IMES AGANO C Y expressive activities can face tension. Purely expressive interventions, particularly artistic or personal expressions, are often rejected or at the very least controversial. and Local Policies Transforming Urban Open Space http://www.theatlanticcities.com/arts-and-lifestyle/2012/12/urban-trends-we-hope-die- as nuisance). a yarnbombing (describing Erickson) Amanda 2013/4240/ (quoting purely expressive encounter resistance. Murals can draw criticism, even when painted legally with the permission of the property owner. artistic expression by some is seen as blight by others. At one extreme lies graffiti, a purely expressive form of intervention in urban space. trunks with twee stripes?” 365 (2000) (explaining that on privately owned vacant lots, gardeners may for face trespass). prosecution “interfer[ing] with [residents’] stewardship and takeover of property without ownership,” nor laws. enforcing antidumping codes blight or Distinguishing Graffiti Art from Graffiti Vandalism colorfully wrote: “It gets insulating wet perfectly and functional grimy handrails and after mildew bike and mold. the racks And for what—covering first in up perfectly attractive a tree rain tube storm, of T murals).
2013] 2013] unglamorous one; this is why landfills make money). normatively acceptable because the activity enhances the of blight. seen as a sign activity is while the other community, P (1993). is subjective; though many will appreciate its presence, murals often the generates controversy. content of Sara Johnson, Despite a strong counter-current embracing street considered by many a art, negative form of vandalism graffiti indicative of blight. is still Unsanctioned murals and artistic similar—appreciated expressions by like some yarnbombing as others are street as “mere art, [graffiti]” they or are worse. disparaged by 34609-mqt_97-2 Sheet No. 80 Side A 03/17/2014 11:30:34 03/17/2014 A Side 80 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 80 Side B 03/17/2014 11:30:34
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[97:2 [97:2 Self-Guided Tour–Oklahoma City
., ERV S Expressing the height of this this of height the Expressing 207 ARK P L ’ AT After objection from the community, the the community, the from objection After note 157, at 147. at 147. 157, note 211 note 155, 47–48. at 155, note supra MARQUETTE LAW REVIEW LAW MARQUETTE As with the Object Orange, the artist’s purpose purpose artist’s the Orange, Object the with As Views of the normative value of the Heidelberg Heidelberg the of value normative the of Views note 167, at 71. 71. at 167, note ) 2/15/2014 Some cities have chosen to retain aspects of DIY DIY of aspects retain to chosen have cities Some 205 206 supra 47. 210
Expressive uses thus hold a much more ambivalent ambivalent more much a hold thus uses Expressive supra supra ELETE , http://home.nps.gov/okci/planyourvisit/self-guided-tour.htm (last visited 74. 45, 208 D – Though the displays are banned in several states and are are and states several in banned are displays the Though OT OT 209 N McClurg, McClurg, at 73 at 72. at 44– at at 143, 145, 147; U.S. N U.S. 147; 145, 143, at
O After the annual Oklahoma City Memorial Marathon, many many Marathon, Memorial City Oklahoma annual the After (D 212
. Id. . Id. . Id. . Id. . See . Id. . Id. -10 211. Paxson, Franck & 212 206 207 208 209 210 205 204. Herscher, Detroit’s Detroit’s Heidelberg Project provides an even starker example of Some forms of DIY urbanism so serve human values that they are AGANO Nov. 9, 2013). 9, Nov. 2013). the tension faced by purely expressive DIY urban interventions. memorials at the sites of mass Building tragedies. bombing in At Oklahoma the City, site as of the landscaped the official beautifully memorial was Murrah being designed constructed, planners and originally intended to clear away the formed messier after spontaneous the tragedy. memorials that had normative frame than widely-accepted instrumental uses open to all. to all. instrumental uses open normative frame than widely-accepted resistant to removal. This is particularly true of spontaneous memorials. roadside National Memorial was to draw lots, of houses, the abandonment—of attention to of of cars, personal property. designers instead left a Fence,” where section to of this day fence visitors objects. known pause to as leave the photos, notes, “Memorial and sometimes removed by authorities, the larger displays tend to reappear in various forms.
and visitors streamed to the site. 366 366 Project were installations were eyesores sharply and junk even as the divided: artist gained acclaim neighbors complained that the P dichotomy, the City of Detroit responded to the neighbors’ complaints by bulldozing those foreclosed of properties the around installations awarded the that same Guyton were time achievements. on a that city-owned the “Spirit city council of Detroit” award for his artistic runners pin their race numbers to the fence in tribute to victims and There, artist Tyree Guyton installed an assemblage of found objects and some paintings on a group Heidelberg of Street. abandoned properties on and around 34609-mqt_97-2 Sheet No. 80 Side B 03/17/2014 11:30:34 03/17/2014 B Side 80 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 81 Side A 03/17/2014 11:30:34
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This This 216 EMAKING OF But the the But R Therefore, Therefore, 215 214 (Apr. 18, 2013), 18, (Apr. LOG http://www.edra.org/sites/de B note 216, at 27. 27. at 216, note RBANISM RBANISM AND THE 367 367 U ARKER available at supra supra M Chen, Chen, ILE ILE note 21, at 266. at 266. 21, note UERRILLA The quest for approval to use space space use to approval for quest The G
, M : 219 supra supra see also see 101, 105 (2007), 105 101, (2007), DIY URBANISM DIY N ’ PACE This example perfectly captures the purpose purpose the captures perfectly example This S SS note 8, at 21, 21, 24, 27. 21, 27. 24, at note 21, 8, 213 note 7; . A ES supra supra Dancing in the Streets of Beijing: Improvised Uses Within the Urban UBLIC
, ) 2/15/2014 supra R P Streets Versus Parks: Skateboarding as a Spatial Practice in New York note 7. 7. note ITIES ELETE C ESIGN D , Berg, Berg, ,
supra supra The park faced less opposition than most skateboarding skateboarding most than opposition less faced park The OT OT . D N Bezanson & Finkelman, & Finkelman, Bezanson 217 O NSURGENT I
(D
NVTL Yet when they use plazas shared with other segments of the the of segments other with shared plazas use they when Yet in . See . See id. . See id. . See, e.g. . Where Is My Treasure? -10 , 220 215 216. Berg, 217 218 219. Caroline Chen, 220 213 214. Chihsin Chiu, Instrumental interventions appear to raise serious problems of In some cases, even unpopular activities may face little community , 38 E , 38 M K ONTEMPORARY AGANO C Y System fault/files/publications/EDRA38-Chiu_1.pdf. fault/files/publications/EDRA38-Chiu_1.pdf. City many cities ban skateboarding Bordertown Skate in Park actually garnered community certain approval. public places. public, users like skateboarders garner more complaints—even if to be. they have a legal right places where they are skating in legitimacy only when they take place in truly contested space, space that more than one group of users claims. Where space is contested, a new use of the space is likely to face normative disapproval, whether the new of the DIY acceptance. aspect of the memorials and demonstrates opposition when its performed in uncontested space. Skateboarding wider faces less general approval than other forms of exercising, in part because it is practiced mostly by teenagers and young people with suspicion, who and because skateboarding is may noisy and, at its be worst, can viewed damage railings and other improvements to public space. C
may have had a great deal to do with the fact that, in using space under a freeway overpass, the skaters had found a location was that using. no one else 2013] 2013] survivors of the tragedy. P under freeways may entail numerous legal barriers, but fewer normative ones. activities precisely because it was located in an uncontested space. http://milemarkerblog.com/tag/okc-memorial-marathon/. http://milemarkerblog.com/tag/okc-memorial-marathon/. Similarly, user-generated takeovers of the space under overpasses have taken place in cities around the world, such as when groups of Tai Chi practitioners gather with drummers under to an overpass perform in Beijing. their daily exercise 34609-mqt_97-2 Sheet No. 81 Side A 03/17/2014 11:30:34 03/17/2014 A Side 81 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 81 Side B 03/17/2014 11:30:34
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R The The
. 223 UB P L note 23; ’ AT , N supra supra , http://www.austinte , GOV . [97:2 [97:2 EXAS T note 98, at 41–42, 149–50 (demonstrating USTIN note 23 (describing two different city Painting Painting Crosswalk , A This is also true whether the the whether true also is This New users face disapproval where where disapproval face users New In contested space, temporary temporary space, contested In supra 221 222 , 226 supra supra , Goodyear, , http://chicagocriticalmass.org/about (last visited Nov. 10, MITHSIMON ASS S
note 10; M note 27, at 486. at 486. 27, note & MARQUETTE LAW REVIEW LAW MARQUETTE Some result in enduring change, but many do not. do not. but many change, Some result in enduring ) 2/15/2014 supra supra 227 , Painting Crosswalk The City of Austin, Texas, already has a similar similar a has already Texas, Austin, of City The RITICAL HEPARD ELETE C 224
. D , S HI Exercise is generally a welcome activity in a public park; park; public a in activity welcome a generally is Exercise OT OT N Edwards, 225 , C
O (D
.Fitness Boot Camps May Get the Boot in Santa Monica, Calif. Monica, Santa in Boot the Get May Camps Boot .Fitness .Better Block .Better . See . See, e.g. .Commercial Use of Dedicated Parkland Dedicated of Use . Id. .Commercial -10 223 227 221 222 In another example, when activists paint crosswalks, use cones to 226. Goodyear, 224 225 AGANO that people disapprove changes in public and private space). private in space). public and changes that disapprove people Critical Mass Critical only when a park becomes so crowded that other neighbors general acceptance. use disturbed does the activity lose find their build traffic bump-outs, or paint temporary bike lanes on busy roadways that they believe should be made safer to cyclists and pedestrians, they co-opt a space already used by cars. The space is not vacant. The needs of the various groups of users of the drivers—conflict, space—pedestrians, and cyclists, and they may need traditional to democratic be mediated processes. through more ordinance. contested space is public or private. they quite legally make use of public space in a way that infringes on the use of others. Contested uses of public parks provide a good example. Recently, the City of Santa Monica, California, considered a proposal to ban or regulate paid group exercise classes in a popular park. xas.gov/department/commercial-use-dedicated-parkland (last 2013). visited Oct. 23, xas.gov/department/commercial-use-dedicated-parkland by citizens). responses painted crosswalks to
368 368 use is technically legal or illegal. P Mass bike rides, and Better Block demonstration projects serve then as a catalyst for community action and open negotiation with planning and traffic authorities. space-appropriating strategies like citizen-painted crosswalks, Critical (Jan. 15, 2013, 5:47 PM), www.npr.org/templates/transcript/transcript.php?storyid=169414500. PM), www.npr.org/templates/transcript/transcript.php?storyid=169414500. (Jan. 5:47 2013, 15, 2013). their children. park had become such a popular destination for fitness enthusiasts that the presence of numerous instructors, made students, local residents feel and that insufficient space their remained for them equipment and 34609-mqt_97-2 Sheet No. 81 Side B 03/17/2014 11:30:34 03/17/2014 B Side 81 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 82 Side A 03/17/2014 11:30:34
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Id. 4:42
In his 229
234 , Mark Edwards (2d Cir. 2000). 2000). Cir. (2d
369 369 There, the city’s bulldozing of urban urban of bulldozing city’s the There, 235 DIY URBANISM DIY note 27, at 491–92. at 491–92. 27, note Thus, breaking the laws in those small ways ways small those in laws the breaking Thus, supra 231 This reflects larger patterns at work in the the in work at patterns larger reflects This 228 ) 2/15/2014 ELETE To cite two of Edwards’s examples, motorists driving a a driving motorists examples, Edwards’s of two cite To Edwards, Edwards,
D Acceptable Deviance and Property Rights , 232 B. Legalization of Normatively Acceptable Acts at 459. 459. at OT OT N id. This is certainly true in DIY urbanism. Interventions may may Interventions urbanism. DIY in true certainly is This at 461. 461. at 461. 457, at 461. at 485. 461–62, at
O 233 (D
. See . Id. . Id. . Id. . Id. . See, e.g. -10 229 230 231 232 233 234. The danger in having a large swath of human activity 235. technically illegal Envtl. N.Y.C. Justice Alliance v. F.3d 214 Giuliani, 67 65, but Normatively acceptable acts of guerilla urbanism sometimes become 228 In the rarer instances where DIY actions consisting of “acceptable Acts of acceptable deviance from the law tend not to draw M K AGANO C Y generally accepted is that this leaves room for selective or discriminatory enforcement. formally legalized. 486. deviance” have deviance” been have it the enforced, is enforcement, often not the initial action, which draws criticism. urbanism context was the Giuliani administration’s crackdown on illegal One notorious example urban gardens in New York City. in the DIY constitutes acceptable deviance. enforcement. recent piece, provides a helpful four-quadrant rubric that conceptualizes acts two along axes: legal/illegal and normatively acceptable/unacceptable.
2013] 2013] evolution of law in general and of property law in particular. P few miles an hour above the speed limit or, in the real property context, musicians performing on busy sanction. street corners, are unlikely to face gardening on a roadway defacing public property, and trespassing to garden on median a vacant lot may may violate violate rights a to private regulation property, the against negative reaction, and the laws are typically not enforced. action does not draw a strong violate a variety of laws, but do so in a way that elicits neither an outcry from the neighbors nor the intervention of legal authorities. Throwing Frisbees in by the property park removing and weeds may “defacing” be technically illegal but behavior. This is particularly true of actions that beautify land. Though normatively acceptable or even welcomed enforcement is rare. Edwards posits that “[w]here the behavior legality and social diverge, acceptability of some deviance is socially acceptable” and 34609-mqt_97-2 Sheet No. 82 Side A 03/17/2014 11:30:34 03/17/2014 A Side 82 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 82 Side B 03/17/2014 11:30:34 M K PM
C Y AILY AILY 245 As As 4:42
D 243
, N.Y. In a similar similar a In 237 After all, they they all, After 238 [97:2 [97:2 The government was was government The
239 Though the plaintiffs plaintiffs the Though 241 236 , http://www.ecotippingpoints.org/our-stories/ These exceptional instances of of instances exceptional These 240 485. ROJECT
While the Bordertown Skate Park’s Park’s Skate Bordertown the While 500 Gardens Saved in City Housing Deal P 244 The Community Gardening Movement in New York City: The OINTS MARQUETTE LAW REVIEW LAW MARQUETTE P note 27, at ) 2/15/2014 note 7. 7. note at 491–92. 491–92. at Actions that are de jure illegal but viewed as legitimate legitimate as viewed but illegal jure de are that Actions supra ELETE IPPING 242 id. T D ,
supra supra OT OT CO N at 68; Michael Saul, at 459. 459. at 500. at
O , E (D
. Id. . See id. . Id. . Id. . Id. . See, e.g. . Id. Sept. Sept. 19, 2002, at 6 (discussing how Mayor Giuliani insisted that the land should be -10
, 239 240 241. Edwards, 238. Amanda Suutari, 236 237 242 243 244 245. Berg, Some DIY urbanist interventions, both legal and illegal, end up Edwards also notes that in some contexts where law and normative EWS AGANO indepth/usa-new-york-community-garden-urban-renewal.html (last visited (last Oct. 2013). 24, indepth/usa-new-york-community-garden-urban-renewal.html acceptance by the local community rested on the uncontested nature of the space, the lack of normative disapproval in turn made it possible for the project to gain supporters and become (temporarily) legitimized. having a transformative effect, becoming city-sanctioned or private- with the outdoors, and healthy food production. acceptance diverge, “it is ultimately the law, rather than the that changes.” behavior, had transformed a trash-strewn eyesore into a space that served multiple human values by creating a space of beauty, community, connection seen as worse than useless. ultimately lost that legal battle, they did win public sympathies, and the next mayoral administration changed course on the issue. First Decade N developed for housing, but in 2002, Mayor Bloomberg signed gardens). 500 community an agreement that protected 370 370 gardens in order to make way for more lawsuit lucrative attempting land to uses spurred enjoin a the destruction. P enforcement occur; however, overall, where behavior is formally illegal acceptable, enforcement is rare. but normatively way, when New York City attempted to evict guerilla gardeners from an unused lot that it owned but had not maintained, citing fear of liability, public sympathies rested squarely with the gardeners. and normatively acceptable by the community often become legal. Edwards’s model predicts, as various tactics adopted by DIY urbanists spread, more eventually become legitimized, finding their way into the mainstream urban development canon such that legal to means replicate them become available. 34609-mqt_97-2 Sheet No. 82 Side B 03/17/2014 11:30:34 03/17/2014 B Side 82 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 83 Side A 03/17/2014 11:30:34
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EX 4:42 , T
In the the In 248 371 371 But the video and photos photos and video the But 250 note 8, at 45–46. at 8, 45–46. note Building a Better Block in Oak Cliff Additionally, several cities have have cities several Additionally,
The City of San Francisco now now Francisco San of City The 253 247 252 supra This Saturday! BBOKC in the Farmers Market note 4 at 15, 20. at 15, 4 note DIY URBANISM DIY The event lasted only two hours, the length length the hours, two only lasted event The 249 (May 1, 2013), http://www.betterblockokc.com/this-saturday- supra
, note note 10; Robyn Ross, OKC Similar events now happen annually in dozens of of dozens in annually happen now events Similar ) 2/15/2014 YDON note 4, at 15; Merker, Merker, at note 15; 4, note 8, at 45. note 136. supra Typically featuring a platform at sidewalk level with with level sidewalk at platform a featuring Typically L 246 , 254 Better Better Block OKC, LOCK ELETE
supra supra , B supra supra D , OT OT N at 20. at
O YDON (Dec. 18, 2012, 1:20 PM), http://texasobserver.org/building-a-better-block-in-oak- PM), 1:20 2012, 18, (Dec. ETTER
(D Better Block Badger, Badger,
B
251 . Id. . Id. . See generally . See, e.g. . . Id. , -10 250 251 252 249. Merker, 247 Some PARK(ing) Day inspired innovations have become so 246. 248. L 253 254 Some temporary demonstration projects become permanent M K BSERVER AGANO C Y original action, a San Francisco-based collective temporary park, called complete Rebar with sod, built a bench, a and a potted tree, the within lines of one on-street parking space, inviting passersby to make use of the transformed space. instituted formal programs through which sponsor local the construction business of a owners parklet in can the parking spaces their businesses. in front of cliff. District! successful as to become permanent. O Day began as one movement toward turning brief on-street parking spaces into parks. 2005 event that spawned an international 2013] 2013] sector-sponsored projects with organizers of the first Better formal Block project initially sought city approval, government approval. but when that failed to materialize, went ahead The with the weekend-long event as planned. fixtures, enveloped in the more government formal regulation and property market success. law For mechanisms example, PARK(ing) of P posted from it struck an immediate chord, and have inspired hundreds of imitators, to the point annually that with PARK(ing) parking-space-based Day interventions is in world. now cities “celebrated” around the allows residents to apply for permits spaces to semi-permanent “parklets.” to convert one or two parking of time allowed on the parking meter. cities, some in conjunction with more recognized groups like the Urban governments. city Land Institute and bbokc-in-the-farmers-market-district/ bbokc-in-the-farmers-market-district/ (promoting the 2013 Better Block in Oklahoma a dealer). local car from sponsorship by supported City, 34609-mqt_97-2 Sheet No. 83 Side A 03/17/2014 11:30:34 03/17/2014 A Side 83 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 83 Side B 03/17/2014 11:30:34 M K PM
C Y As As 4:42
260 These have have These 255 [97:2 [97:2
261 The phenomenon has has phenomenon The 256
259 : Even where PARK(ing) Day interventions interventions Day PARK(ing) where Even 257 note 8, at 46–47. 46–47. 8, at note MARQUETTE LAW REVIEW LAW MARQUETTE , http://rebargroup.org/walklet (last visited Oct. 2013). 22, http://rebargroup.org/walklet , ) 2/15/2014 note at 4, 41. supra supra EBAR ELETE supra D , , R Tactical Urbanism OT OT N Merker, Merker, at 23. at at 49. at
O YDON (D And the success of these miniature public parks has in turn turn in has parks public miniature these of success the And
. Id. . Walklet . Id. . Id. . See . Id. 258 -10 effort in 2007, but has blossomed into an organization influential non-profit that Environmental Protection Agency, the has Oregon Department Environmental of Quality, Patagonia, and the Multnomah Soil received and Water Conservation Districts. It is also supported by many other grants businesses, from organizations, government departments and schools. the Depave therefore provides a great U.S. example of unsanctioned how short-term initiatives efforts within a very short amount of time. can become sanctioned, long-term Depave began as an unsanctioned, self-organized neighborhood 255 256 260 261 257 258 259. L Another initially-guerilla effort that has gained wide acceptance is AGANO described in have not led to a formal mechanism for adopting the changes long-term, organizers continue to put their energies into creating these temporary, tiny urban oases, doing property so precisely to invite the public in to consider the best parking use of urban spaces space. instead of on private inspired larger park-making efforts. Depave—a Portland, Oregon group that removes unnecessary paving to decrease stormwater runoff and to create new parks and gardens.
372 372 inviting seating and vegetation, the indicating parklets that they sometimes are public property bear and that signage one does not patronize the neighboring businesses to have use the amenities. to P Like many other urbanists, good “depaving” ideas has gained that wide enough have acceptance bubbled to receive up from guerilla a market-ready product. traveled a full spectrum of acceptance, from uncertain a legality, quirky to intervention of a movement embraced worldwide, to city policy widespread enough to spur the development of by citizens and activists been such a success and are now replicated in enough cities that Rebar now produces a modular unit called a “Walk-let” sized as a installation parking-space- available for purchase. 34609-mqt_97-2 Sheet No. 83 Side B 03/17/2014 11:30:34 03/17/2014 B Side 83 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 84 Side A 03/17/2014 11:30:34
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4:42
. 816, 884 (1994) . 447, 448 (2001). . (2001). 448 447, EV EV While instances instances While R R
(explaining that adverse 264
L. L.
note 201 (describing how property ORNELL ORNELL 373 373 , 49 UCLA , 49 supra supra note 263, at 448 , 79 C
Whose Land is it Anyway?: It’s Time to
262 supra 267 note 263, at 448. 448. at 263, note supra DIY URBANISM DIY
265 note 200; Sneiderman, Impert, Impert, note 4, at 11–23 (describing different DIY projects that focus on So-called “yarnbombs” do indeed fade, tatter, and and tatter, fade, indeed do “yarnbombs” So-called note 27, at 460–61, 486. ) 2/15/2014 See supra 268 supra ELETE supra D , OT OT N This is, of course, for problematic environmentally sensitive pieces of land. The at 462. 462. at Johnson, Johnson,
O YDON As Edwards predicts, the next step is often for the activity in in activity the for often is step next the predicts, Edwards As Under this idea, if an owner does not care for a property property a for care not does owner an if idea, this Under (D
266 263 . Id. . See . Id. . Id. -10 266. Edwards, 267 268 Conversely, Conversely, crowds of exercise classes in Santa Monica and Ultimately, this exploration of legitimacy reveals that the kinds of 262 263. Walter Quentin Impert, Comment, 264 Finally, uses of space that are both formally illegal and normatively 265. L M K AGANO C Y possession law encourages a productive use of use land). productive a possession law encourages skateboarders in plazas join Edwards’s street preachers and day laborers in the “legal-but-normatively-unacceptable” rubric. quadrant of Edwards’s interventions interventions that historical gain patterns in property law. The general law of adverse possession, example, for has acceptance proceeded on the theory that unused land reflect represents lost utility. deeply-rooted Reconsider Sovereign Immunity from Adverse Possession Adverse Immunity Sovereign from Reconsider has possession and makes productive use of the land. enough to use it, instead of letting the land lie unprotected, fallow then and title the should borders eventually pass to the one who actually putting public spaces to a better use); Impert, unacceptable unacceptable tend to disappear. normative disapproval, whether because of the DIY controversial nature urbanist of the acts or activities the contested nature of the that space on which they occur, face tend to fade with time. of squatting on an requirements urban of lot an continuing principles long adverse enough and possession to values statute meet that sympathies are the underlie rare, (and adverse the in possession productive users of land. same some turn public cases, government policy) in favor of
2013] 2013] grants from both governmental entities and other cities. in can now be replicated private corporations and P protection). I refer to the workings of one roots of the common values of underlying both DIY adverse urbanism and Anglo-American possession doctrine generally. property law here only to expose the (explaining that the law of adverse possession operates at the expense of environmental question to be banned or regulated. be banned or question to best use of a coastal wetland, for example, might indeed be no direct ecological use resources at and all, to to protect preserve inland communities from flooding. John G. An Sprankling, Environmental Critique of Adverse Possession 34609-mqt_97-2 Sheet No. 84 Side A 03/17/2014 11:30:34 03/17/2014 A Side 84 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 84 Side B 03/17/2014 11:30:34
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C Y To To . 347, . 531, 4:42
271 AME EV EV D R R
. Property Property in
L. ]. For more on CON OTRE E 3.1 (8th ed. 2011);
. Property’s Morale, § M Thus, where it it where Thus, 71 N
ORNELL ORNELL , 272 AW L , 57 A note 27, at 500; Carol M. M. Carol 500; at 27, note [97:2 [97:2 , 90 C supra . 577, 578–80 (1988). . (1988). 578–80 577, NALYSIS OF EV A R
L.
Edwards, Edwards, Property and Expropriation .
note 271, 441. at 271, note TAN note 123, at 29–30 (describing how government government how (describing 29–30 at 123, note CONOMIC A Theory of Property E
, , 40 S , 40 supra , supra Property Property as the Keystone Right? OSNER P
note 193, at 138–40; Nestor M. Davidson, These adjustments may appear routine, in in routine, appear may adjustments These Toward a Theory of Property Rights . 1607, 1658 (2010); A. 269 MARQUETTE LAW REVIEW LAW MARQUETTE EV Property and Expropriation: Themes and Variations in American . 1, 1 (2000) [hereinafter supra R ) 2/15/2014
, EV L. ICHARD ICHARD Property’s Morale R Carol M. Rose,
ELETE R . 437, 441 (2011); Nestor M. Davidson & Rashmi Dyal-Chand,
D , Lawson & Miller, L. , However, the history of American property law has been been has law property American of history the However, ATYAL EV OT OT 270 K N
R
TAH O see also & ORDHAM L.
(D .
. See, e.g. . See, e.g. -10 ICH Crystals and Mud in Property Law Property in Crystals Mud and , 78 F . 329, 330–31 (1996). (1996). . 330–31 329, 270 269 272. Davidson, 271. Carol M. Rose, DIY urbanists using space in illegal ways can change the formal law Property law regimes succeed where they effectively balance , 2000 U EV EÑALVER AGANO programs assist urban gardeners with obtaining legal permission to use vacant lots). legal to vacant permission use obtaining with gardeners programs urban assist the need for flexibility P in property law, especially during times of transformation, see Crisis 347 (1967); may be necessary to institute pollution controls to preserve the health of a community, or to regulate floodplain development to prevent will be adequate and appropriate avenues for adjustment and response when such adjustments uncertainty, such assurances are even more are important. needed. In times of transition and successfully live in communities, people also need to know that there R graffiti). over paint owners rights to land are transferred by lease or sale, regulations exceptions are are drafted, and relaxed, the new uses may even be appropriated for commercial purposes. 374 374 eventually get removed with time, and unwanted street art gets painted over. Likewise, expressive interventions intended debate—like primarily the to spark Seattle pig temporary. sculpture and ghost bikes—tend to be in modest but meaningful ways, as the initial lawbreaking leads to a new conception of the space community as acceptance, property. their programs arise, When permits legal are granted the for previously-forbidden status activities, illegal changes—new uses gain municipal P 110 M Rose, hindsight, but each represents a legal and sociological shift in a property regime. stability and flexibility. certainly to One provide stability essential in the expectation purpose that one’s others of will honor legitimate property claims law investment. is to property to provide a stable basis for Abraham Bell & Gideon Parchomovsky, that of a series of adjustments and expropriations, large and small. Law 552 (2005); Harold Demsetz, 34609-mqt_97-2 Sheet No. 84 Side B 03/17/2014 11:30:34 03/17/2014 B Side 84 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 85 Side A 03/17/2014 11:30:34 PM
, 94 4:42 (Apr. (Apr.
DIY DIY Top Top Built 277 IMES T
. RB An embrace embrace An U 276 ” , Property regimes regimes Property 274 Josh O’Conner, O’Conner, Josh Moreover, flexibility in 273 see also 375 375 ; Id. note 271, at 15–16, 18–19, 21, 23. Recent supra
(Dec. 28, 2012), http://urbantimes.co/magazine/2 2012), 28, (Dec. , note 98, at 54. 54. at 98, note at 774. 774. at 275 Id. IMES supra . T . , DIY URBANISM DIY RB The Social-Obligation Norm in American Property Law , U , Conventional Conventional Planning vs. “Tactical Urbanism ) 2/15/2014 MITHSIMON S
& ELETE D . 745, 753 (2009). Modern property theorists recognize a stronger norm of Property and Expropriation OT OT EV N R at 754, 780. 780. 754, at
O HEPARD L. (D
. Id. -10 277. S 273. Rose, 274. Gregory S. Alexander, DIY urbanists who are finding their own ways to implement local Public space is increasingly subject to forces of privatization, Property law also reflects the reality that those owning property in 276. Josh O’Conner, 275 M K ORNELL AGANO C Y 16, 2012), http://urbantimes.co/magazine/2012/04/coventional-planning-vs-tactical-urbanism/. The author intended this chiefly as a nod towards a trend in planning that encompasses local culture as opposed to just mass-market solutions. 2012 from Trends Environment 012/12/top-built-environment-trends-from-2012/ 012/12/top-built-environment-trends-from-2012/ (discussing how new residents moving cities into seek “a more nuanced and provide it themselves”). socially connected sense of place—even if they have to consider many values beyond those encompassed in the expectations of individual owners; the institution of property protects community values as well as individual investments. of DIY urbanism, then, rejects a valuation of land individual’s based solely security on an of expectations place in the and social cultural, instead values its location in the physical, in its use community. and enjoyment, and
2013] 2013] catastrophe downstream, a transparent rulemaking process and mechanisms stable such as compensation legal or grandfathering regimes for softening the burden regime of those regulations provides on the individuals whose property is affected. both a response to challenges preserves a greater security of expectation that life in a physical space, or in a community, will continue to be livable for all. communities bear some obligations to one another. P community obligation at work in rights. property govern enactments that a wide range of common law doctrines and legislative times times have brought other disruptions: investments; market physical forces failures that alter that their land; or destroy rapid social the and economic undermine changes value members’ that places of in the people’s community. These, too, call for fairness transparency. and responses handled with C change represent change part represent of a broader reorientation toward community that is happening in urban areas. addition Residents to are owning or acting renting to individual ensure plots own some stake of the communities in which [they] that live.” of in land, they “actually whether by outright ownership transfer regulation or of by the increasingly activities restrictive that may occur within the space. 34609-mqt_97-2 Sheet No. 85 Side A 03/17/2014 11:30:34 03/17/2014 A Side 85 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 85 Side B 03/17/2014 11:30:34
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395 C Y 4:42
18, 48 (1968). (1968). 48 18,
IVIL DISOBEDIENCE C [97:2 [97:2 ISOBEDIENCE D IVIL EMOCRACY C D ALDEN AND W
, ISSENT AND HOREAU D T note 193, at 284. 284. at 193, note AVID supra , D ISOBEDIENCE ANDISOBEDIENCE note 4, at 11–13, 15–17, 19–21 (describing various DIY projects MARQUETTE LAW REVIEW LAW MARQUETTE ONCERNING D
ENRY ) 2/15/2014 , C At least in theory, citizens of a democracy contract contract democracy a of citizens theory, in least At supra (1854).
, H , note 13, at 15. 15. at 13, note IV. 282 ELETE D ORTAS In this they appear to embody the credo: better to ask for for ask to better credo: the embody to appear they this In supra YDON OT OT F Rather than approaching a private landowner and and landowner private a approaching than Rather N L 281 See, See, e.g. at 7. at 280 O BE As they do this, DIY urbanists bring needed flexibility to the the to flexibility needed bring urbanists DIY this, do they As (D Flowers in Bathtub the
279 . See . Id. -10 279 280 281. Hou, 282. A Up until now, this Article has not addressed the challenge to the rule 278. At first blush, this might appear troubling. Part of living in a AGANO of law that is raised by illegal DIY urbanist acts. actions—including, A arguably, significant the subset of most DIY transformative are ones— done processes. guerilla-style, skirting regular democratic and market to abide by the ground rules of elected representation and due process, Of course, a great deal proposition. of political philosophy has been devoted to debating this very forgiveness than permission. permission. forgiveness than democracy means that sometimes we need to obey laws that we do not particularly like. (Penguin Books 1983) Books (Penguin
particularly the shrinking arena of urban public, land carries truly with accessible it to values the beyond those urbanist imposed by interventions markets; DIY recapture space values. for The the eventual acceptance realization creation common signals property. the successful of new of of many illegal those DIY urbanist acts 376 376 urbanist interventions push back against the segmentation of privatized space. They take space that privatized is space and subject reestablish it to as open conversion to the public. into Interventions policed as or simple as benches essentially reclaim creates or a appropriate encroachment commons. of space private activities in Police (e.g., sleeping) a often into way public seek space. that to prevent the cities and balancing related property endeavors rights. of building Land, P that aim to expand public space). that space). public aim expand to negotiating negotiating to use the land, bringing a proposal before a city council and requesting money to fund it, petitioning the school board and accepting the results, or bringing department and obtaining permission before building, a guerilla urbanists plan before simply act. a zoning board or building DIY urbanists turn this on its realm. head by seeking to expand the public 34609-mqt_97-2 Sheet No. 85 Side B 03/17/2014 11:30:34 03/17/2014 B Side 85 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 86 Side A 03/17/2014 11:30:34
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: note HYY 4:42 OCKE
L , W IGHT R supra supra OHN Guerilla Guerilla 284 THER O Arts on South VERY VERY E And of course, those those course, of And 288 377 377 17 (2d ed. 1998) (citing J (citing 1998) ed. (2d 17 UARDIAN UARDIAN OF G IGHTS R HE T
(Peter Laslett ed., 2d ed. 1967)); Rose,
., R J 380
note note 3; Brianna Watts-El et al., , Permitting some illegal activity to persist persist to activity illegal some Permitting DIY URBANISM DIY at 48. at 48.
ROPERTY note 123, at 20. at 20. 123, note 285 LY P E at 113–14, 150–51. 150–51. at 113–14,
supra W. supra , http://www.whyy.org/hamiltoncommons/artsonsouth.html (last note 282, ) 2/15/2014 OVERNMENT at 29–30, 34 (Michigan and St. Louis). On the other hand, it could just note 284, note G AMES AMES ISTORY OF ELETE supra supra H id. , J In cities with many vacant properties, then, it should at at should it then, properties, vacant many with cities In , D , Cardwell, OMMONS , C 287 OT OT supra supra , N O Despite this, some guerilla urbanist interventions perform an an perform interventions urbanist guerilla some this, Despite LY ORTAS (D
283 Some city and state entities have established formal procedures procedures formal established have entities state and city Some EDIA . See, e.g. . See, e.g. . See, e.g. 286 REATISES REATISES OF -10 M T
288 285. E 283. F 284 286. Lawson Miller, & 287 Additionally, plenty of community groups instituteAdditionally, manage plenty to of legally community . M K ONSTITUTIONAL WO UB AGANO C Y as well be argued that the roots venture in of guerilla modern urbanism, just community as gardening innovations as like the recently. a more done have Depave Day, and Better whole Block project, began PARK(ing) as a end-run around zoning and building codes; even placing a sidewalk bench may on violate a a stricture against erecting structures in right-of-way. a public Other actions violate which the has sanctity been of described private as property, foundational to democracy. through which neighbors may properties acquire for leases community gardening on illegal purposes; roots. or not title all to gardens vacant have P C 2013] 2013] accepting that in this process sometimes our own prevail. preferences will not P who own property or can obtain the permission of property owners can perform all sorts of interventions, from a lending sidewalk-fronting library miniature at the foot of one’s own lawn to house-sized murals these exposition theories). of helpful a (providing 271, at 332–33 might be seen as unraveling the threads use. of urban land philosophy goes” with an “anything of order and replacing them bottom-up changes in their gardening movement, urban for environments. example, is cities. well The established in community many U.S. Zoning and building codes, park regulations, and the like exist (at least in part) to enforce order. urbanism, to the extent it disregards dangerous form legal of anarchy, processes, the first might step on appear a slippery slope a to peopleerecting homes on the front lawns of their vacationing neighbors. community garden. In another example, artists’ groups wishing to take over vacant storefronts coordinate leases collaborate with commercial landlords. with cities and nonprofits to least in theory not be difficult to legally access one on which to plant a visited Oct. 20, 2013). 2013). Oct. 20, visited T 34609-mqt_97-2 Sheet No. 86 Side A 03/17/2014 11:30:34 03/17/2014 A Side 86 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 86 Side B 03/17/2014 11:30:34
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Morality They create create They 292 note 27, at 460. These and many many and These 289 [97:2 [97:2 supra supra Adam Adam L. Alter et al., Additionally, regardless of the the of regardless Additionally, 290 See See generally Though they avoid formal governmental governmental formal avoid they Though 291 note 282, at 14–15; Edwards, Edwards, at 14–15; 282, note note 28, at 1902. supra supra MARQUETTE LAW REVIEW LAW MARQUETTE , note 27, at 462. supra ) 2/15/2014 supra supra ORTAS ELETE D , F OT OT N Markovits, at 1936–37. 1936–37. at Public spaces are subject to myriad picayune regulations to to regulations picayune myriad to subject are spaces Public
O 294 Reasons people break the law start with the practical: simple simple practical: the with start law the break people Reasons (D
293 . See . Id. . Id. . See, e.g. -10 294. Edwards, 289. Thanks to Jess Owley for providing the lovely example of the library maintained at 290 291 292 293 Before confronting questions of illegality, it is helpful to know As it turns out, many instances of DIY urbanist lawbreaking point to All of this raises two related sets of questions. First, why do some AGANO reasons for the illegality of the action, many acts of DIY urbanism are in fact democracy-enhancing.
ignorance of the another. law is one; the unlikelihood of enforcement is 378 378 adorning the walls, at least to the extent that zoning and building codes and homeowners’ association regulations permit. P the foot of a lawn in Milwaukee, Wisconsin. Wisconsin. the of lawn Milwaukee, foot a in for use of urban space and happening through legal channels. prevent localized innovations from point to the democratic deficiencies that spaces for community. They simultaneously demonstrate possibilities individualist, individualist, anarchist impulses and nothing more? Second, illegal does nature the of guerilla urbanist actions serve any purpose in society? How do the illegal ways mechanisms of law, and do their illegal acts serve any legitimate purpose that people use space relate in a democracy? to the formal flaws in democratic processes in cities. processes, well-executed DIY urbanist interventions actually strengthen the conditions needed for healthy local democracies. other legal forms of DIY urbanism originate at the grassroots level but community aims. to accomplish the legal channels proceed through DIY urbanists act in ways they know to be illegal or, at with the indifference to very the possible least, legality or illegality of their acts? Why do some gardeners simply plant on underused strips of land, instead of seeking owner or city permission? Is all guerilla urbanism spurred by people elect illegal rather than examining legal channels various for forms their achieved activity. through of formal In channels DIY with those urbanism without done awareness illegally and (or of done or comparing regard patterns emerge. those for These their patterns potential reflect existing illegality), people literature a about obey why the few law, what break. laws people obey, and what laws people 34609-mqt_97-2 Sheet No. 86 Side B 03/17/2014 11:30:34 03/17/2014 B Side 86 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 87 Side A 03/17/2014 11:30:34
298 PM
. 819, 4:42
EV (July (July 21,
. ROBLEMS R P Y ’ ORG . OC S
& AW AW Did the architects architects the Did ARDENING 296 G , 41 L EIGHBOURHOOD EIGHBOURHOOD N
the site, and don’t attract attract don’t and site, the : 379 379 UERILLA CTION , G A improve In some cases, the appropriate appropriate the cases, some In 300 The gardener dispatching this advice advice this dispatching gardener The 299 The behaviors proscribed by these these by proscribed behaviors The OMMUNITY 295 C
DIY URBANISM DIY Legality of Planting 182–83 (2008). (2008). 182–83 , DIY Frisbee Toss a Vancouver Parks No-No; Except When Players are , Sept. 8, 2007, at B5. at 2007, 8, Sept. , ELP ) 2/15/2014 note 8, at 45–46. UN -H note 29, at 65–66 (mentioning former a Board 29, with note Parks conversation at (mentioning 65–66 S ELF ELETE S supra D supra ICHARDSON Part III.B. , OT OT R N O ERN IZ IZ Perhaps. More to the point: did they care? Probably not. It It not. Probably care? they did point: the to More Perhaps. PM), http://guerrillagardening.org/community/index.php?topic=1156.0 (responding ANCOUVER (D
297 . Supra , V -10 OMMUNITY 5:28
C 298 299. Egregius, Comment to 300. L 295. H 297. Merker, Just as people routinely disobey regulations that they do not know Though some DIY urbanist acts may arise merely from ignorance of 296. Chantal Eustace, M K AGANO C Y too much (negative) attention.” to a question about the legality of legality planting). the about to question a (or are not certain) exist, DIY urbanists will favor illegal methods when enforcement is unlikely. How likely are DIY urbanists to face criminal sanction and prosecution? As predicted by the Edwards model above, enforcement is unlikely when the illegal act is normatively acceptable. regulations, while illegal, are widely accepted; the regulations therefore are routinely violated and rarely, if ever, enforced. sanction. great would result in any this act was unlikely that Influences How People Apply the Ignorance of the Law Defense 2013] 2013] which most of us are blissfully unaware. throw For a example, it Frisbee is in illegal to activity all but requires one park a in permit. Vancouver—and there, the P 2008, AND 819 (2007). 819 (2007). been planting their shrubbery and possible criminal sanction would have swiftly followed. attention” on someone’s front lawn, “negative the law or the unlikelihood choosing of to enforcement, most circumvent guerilla democratic urbanists legal deficits in channels their cities. are in fact responding to was, of course, describing a place on normatively uncontested space. acceptable behavior We can taking be sure that, had these activists at Rebar violate any regulation when they laid down sod, a potted tree, and a bench, turning a metered parking space into a “parklet” for hours? two Or, as stated succinctly by forum, a in poster response on to the a Guerilla newbie’s simple Gardening question web about legality: “There’s rule a ignored/accepted, as long as you only to follow though: assume it’s forbidden, but at Queen Elizabeth and then They’d Better Watch that They Don’t Start Singing Guitars and Playing Commissioner, Spencer Herbert). Herbert). Spencer Commissioner, 34609-mqt_97-2 Sheet No. 87 Side A 03/17/2014 11:30:34 03/17/2014 A Side 87 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 87 Side B 03/17/2014 11:30:34
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in in ALT ALT , C Y S 4:42
note 7. 7. note New New HE 305 , T supra supra EMAKING EMAKING OF R Further, the the Further, , May 12, 2013, at 15; 301 IMES T
[97:2 [97:2 note 198; Berg, , N.Y. supra
308 RBANISM RBANISM AND THE U at 81, 82. 82. at 81,
UERILLA G
Tasty, Tasty, and Subversive, Too note 300, at 184. at 184. 300, note
note 8, : 303 Claiming Residual Spaces in the Heterogeneous City MARQUETTE LAW REVIEW LAW MARQUETTE In other cases, broken systems of local governance governance local of systems broken cases, other In note 20, at 259–60; Sneiderman, Sneiderman, 259–60; at 20, note supra supra PACE supra supra
, S ) 2/15/2014 note 238. 302 And of course, the fear of lawsuits is valid, as as valid, is lawsuits of fear the course, of And note 7. 7. note 304 supra supra Other legitimate concerns of cities are the need to to need the are cities of concerns legitimate Other ITIES ELETE Guerilla Grafters Bring Forbidden Fruit Back to City Trees supra supra C D , Wilson v. City & Cnty. of S.F., 344 P.2d 828 (Cal. Dist. Ct. App. 1959); 307 UBLIC supra supra OT OT P N Richardson, at 207. 207. at O (D See
. See, e.g. . Id. -10 306. Suutari, 307. Berg, 308. Schindler, 305 As a result of all of these perfectly good reasons from the city’s point 303. 304. Patricia Leigh Brown, Cities may in fact have good reasons to wish to rein in some DIY 301 302. Erick Villagomez, ONTEMPORARY AGANO NSURGENT Calder v. City & Cnty. of S.F., 123 P.2d 897 (Cal. Dist. Ct. App. 1942); Morrissey v. City & Cnty. of S.F., 286 P. 433 (Cal. Dist. Ct. App. 1930). Ct. 1930). App. 433 P. S.F., (Cal. Dist. 286 of Cnty. of view, gaining permission from local government before taking DIY on initiative can a be an outsized hassle, involving astonishing amounts of red tape, precisely because of the legitimate concerns cities may have. officials have opposed ornamental pear and trees plum the because fallen, rotting fruit poses a slip- grafting of and-fall fruit-bearing hazard. branches onto urbanist actions. DIY urbanists and their local municipalities often fail to work together effectively because new actions may raise health and safety concerns and expose cities to new liability. City public works Lonny Lonny Shavelson, (Apr. 7, 2012, grafters-bring-forbidden-fruit-back-to-city-trees. 7:00 AM), http://www.npr.org/blogs/thesalt/2012/04/07/150142001/guerrilla- C 380 380 channels for gaining permission simply do not exist. have blocked people’s access to solutions for local problems, and to self-help. turn instead they P channels that do exist are a poor fit for the small, eclectic projects DIY urbanists conceive. I thousands of people sue cities for personal injuries York each City year. attempted to evict guerilla gardeners from an unmaintained liability. city for the same reason, citing fear of by the vacant lot owned artwork, which tends to be controversial. consider the cost of ongoing maintenance of potential any installation, for and the objections from neighbors, particularly with respect to When the City Bordertown of Skate Oakland declined Park, engineering to it renew plans cited the requirements. the and lease inadequacy for their of the the failure skaters’ to meet certain bonding 34609-mqt_97-2 Sheet No. 87 Side B 03/17/2014 11:30:34 03/17/2014 B Side 87 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 88 Side A 03/17/2014 11:30:34
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Only Only 316 note 310; note 310. 310. note supra VPSN volunteers supra supra 310 , http://vancouverpublicspace. 381 381 Eventually, the city allowed allowed city the Eventually, ETWORK 313 Activists observing VPSN’s VPSN’s observing Activists N 317 The city initially approved the the approved initially city The note 310. note 310. 312 PACE . S supra supra UB P DIY URBANISM DIY note 309 and accompanying text. text. accompanying and 309 note supra , ANCOUVER ) 2/15/2014 note 29, at 56; E-mail from Adam Vasilevich, note note 29, at 56 (discussing the actions of the Vancouver Urban Design note 29, at 56; E-mail from Adam Vasilevich, note 29, at 56. The group targeted a trash-strewn alley consisting of of consisting alley trash-strewn a targeted group The , V 309 ELETE D supra supra supra supra supra , , , , OT OT N About VPSN About note 309 and accompanying text. text. accompanying and 309 note
O ERN ERN ERN ERN (D H
. Id. . About VPSN . supra -10 , 312. E-mail from Vasilevich, Adam 313. E-mail from Carl Johannsen, Coordinator, Vancouver Urban Design Forum, to 314. E-mail from Vasilevich, Adam 315 316. H 310. H 309 311. H 317 M K AGANO C Y VPSN Dave Rieberger, City of Vancouver (June 1, 2006, 9:04 AM) (on file with author). (on AM) 9:04 2006, 1, (June of City Dave Vancouver Rieberger, after an overwhelming show media of response, and public emails did the support city agree to including keep and, maintain a eventually, petition, the laneway improvements. the project to continue under VPSN the installed the city’s pavers, planted own grass, and liability “invited insurance, the and passersby to paint murals to cover the graffiti” communitywith donated paint. and broken asphalt bordered by graffiti-covered walls, located steps from a public transit stop used by many in the community.
2013] 2013] One early experience of the Vancouver Public Spaces Network (VPSN) exemplifies this. P ca/index.php?page=about ca/index.php?page=about (last visited Oct. 22, 2013) (discussing how the Space Vancouver Network is a Public grassroots organization that encourages and executes creative projects to environment). urban the enhance Forum, although the actions Network); E-mail from Adam Vasilevich to Tami Jo Hines (Sept. were 6, 2012, 11:37 AM) (on file in fact author); with completed by the Vancouver Public Space intended to resurface the bordering a lane grassy with strip and interlocking to paint removable over pavers the graffiti with murals. would purchase a $1 million insurance policy at an approximate cost of $3,000 (CAN) for the temporary pavers. project as a temporary installation only—and then only if the group The project was an instant success, and local families and involved children got and even added However, the plantings city along had approved the only liability a issues, edges and temporary the improvements installation, of were slated citing for removal. the lane. Despite their noble intentions, one activist recalls contact with the city as “frustrating and discouraging.” experiences in repairing one tiny alleyway could be forgiven for wanting to sidestep such hassles, or for thinking simply that too a big big-city to government allow is local people projects to even accomplish smaller small things. than VPSN’s For Laneway Project—for example, a 34609-mqt_97-2 Sheet No. 88 Side A 03/17/2014 11:30:34 03/17/2014 A Side 88 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 88 Side B 03/17/2014 11:30:34 ,
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318 R. OM note 309. 309. note The Ambition and supra
, . 107, 142, 145 (2013). (2013). 145 . 142, 107, EV [97:2 [97:2 R
L.
. About VPSN About ALIF , 101 C 101 , note 310; note 271, at 465 (discussing T (discussing 465 at 271, note note 193, at 147; Ezra Rosser, Rosser, Ezra 147; at 193, note supra supra , supra , Some groups—youth with skateboards or or skateboards with groups—youth Some (1990)). 320
3–4 ATYAL K
MARQUETTE LAW REVIEW LAW MARQUETTE AW & L Where democratic deficits and broken channels of ) 2/15/2014 note at 4, 46.
Property’s Morale ELETE supra D , BEY THE Nestor Davidson provides a helpful exposition of of exposition helpful a provides Davidson Nestor OT OT EÑALVER O N 321 P O YDON (D
. See -10 EOPLE P actions will be mediated. Psychological research also supports a person is more likely to act if doing perceived so procedural fairness is of the consonant system through with which those the 320. E-mail from Vasilevich, Adam 318. L Some people may not perceive themselves as having access to 319 Research shows a link between legality and perceptions of 321. Davidson, Other reasons people skirt formal channels may in fact point to A city cannot be so focused on protecting the public treasury from HY AGANO bureaucracy than the creators of small projects can manage, simply they may perceive that they do not have Though access VPSN to such was channels just at all. a laneway project, it consisted of relatively fledgling well-educated individuals who organization at the tried official channels first. time of the official channels. Beyond the concern that pursuing permission through formal channels will be too much of a hassle and involve more foreign-born urban gardeners—might perceive even greater barriers. perceive even greater foreign-born urban gardeners—might legitimacy. Transformative Potential Transformative Progressive of Property psychological research showing
problems inherent in the Much available of democratic the or innovation urbanists, market in whether channels. urban legally development or ushered illegally, broken in may in by systems fact DIY be of legitimate a regimes response distribution fail to to and meet urbanist the steps governance. needs in. of a community, access Where keep the people from bringing DIY their concerns to formal, the attention of the DIY city urbanist actions at all, as a they species institute of self-help. 382 382 miniature lending-library set up in processes effort might to not pursue be the worth proper it. legal a long-defunct phone booth—the lawsuit that it forgets to protect its public from the ongoing degradations inherent in being surrounded by derelict strips of unused urban Here, space. the problem is that the process for protecting cities has grown too cumbersome and too complex to manage small things. There must be a balance between the need for protection from liability. flexibility in cities with the need for P W 34609-mqt_97-2 Sheet No. 88 Side B 03/17/2014 11:30:34 03/17/2014 B Side 88 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 89 Side A 03/17/2014 11:30:34
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Guerilla Guerilla , 330 , at 22:14–22:34, ERALD H UNION : E the occupation that that occupation the and the takeover of of takeover the and Feb. 8, 2005, 1. at 8, Feb.
R , 328 329 . 992, 993 (2006). (2006). 993 . 992, Aug. 26, 1991, at 18. at 18. 1991, 26, Aug.
ALL IST ., UTLAND C H In frustration, citizens set set citizens frustration, In
383 383 . EV , R 323 M R OLL L A ’ OF THE THE OF . , R T AT OF OF
, N , S 322 note 193, at 2. at 2. 193, note , J. 93
An obvious recent example of open open of example recent obvious An 324 supra The recent wave of protest-oriented protest-oriented of wave recent The 326 , 327 DIY URBANISM DIY note 282, at 47–48, 53. 53. 47–48, at 282, note Tacoma Tacoma Getting Cross Over Rogue Pedestrian Safety Acts ATYAL supra K
, & The Other March on D.C. on March The Other ) 2/15/2014 note at 4, 42. So Long, People’s Park People’s Long, So Two Days Two in Days October ORTAS ELETE supra D , F , OT OT EÑALVER EÑALVER Peter Callaghan, N P at 22:58–23:26. One of those town leaders was later voted out of office. Brent (footnote omitted). omitted). (footnote O NewsBank, Rec. No. 703069864. No. Rec. 703069864. NewsBank, ., June 30, 2013, at 1. at 1. 2013, 30, ., June YDON (D
RIB . Id. . See, e.g. .Vermont: The Small Town State Town Small The . Id. .Vermont: . See . See Irene’s Influence Felt at Bethel Town Meeting -10 T the intuition that some will people . . . think that the rules are not fair. refuse to play—if they 324 326 327. L 322 323 328. John McArdle, Finally, some break the law out of a desire to protest. In those cases, 330. Jeremi Suri, 325 329. Anonymous, 331 M K EWS AGANO C Y Curtis, DIY urbanist actions are a form of democratic disobedience even where the actions do not entirely resemble classic civil disobedience embodied in, for example, lunch counter protests of the Civil Rights Movement. http://stateofthereunion.com/vermont-the-small-town-state (last visited Oct. 20, 2013). 2013). 20, Oct. visited (last http://stateofthereunion.com/vermont-the-small-town-state occupations has Washington its D.C. during the Great historical Depression; precedents: a veteran’s camp in led to the creation of Berkeley’s People’s Park; available at
protest is the Occupy movement, where some groups elected illegally to camp in public spaces. 2013] 2013] P There is, too, a reluctance to invest in the political process where people see themselves shut out of it. In one extreme example, the city town of leaders Bethel, in Vermont, refused to hold meetings to follow up on community needs after Hurricane initiated Irene response center out and of City even Hall. kicked a citizen- cover of darkness to install illegal crosswalks and roadway medians. urbanists do not easily fit this open protest model when they rely on the university buildings during the anti-Vietnam protests. up their own response centers. And yet some DIY urbanist actions do take the form of Targeted occupations open have included protest. a movement by a Chicago parents’ group who took community over library in a order to prevent school its groups who destruction, have outbuilding openly and occupied foreclosed homes actions in order and by to protest turned it into a Classic political disobedience includes the choice to accept the resulting sanctions for one’s actions. N 34609-mqt_97-2 Sheet No. 89 Side A 03/17/2014 11:30:34 03/17/2014 A Side 89 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 89 Side B 03/17/2014 11:30:34
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197–201 197–201 338 Object Object
ONEY 335 333 TO THE THE TO UP
note 304, at 15, 18. at 15, 304, note , CNNM note 2. note LOBALIZATION ACT (2d Cir. 2000). 2000). Cir. (2d G
supra supra supra [97:2 [97:2 Peñalver and Katyal Katyal and Peñalver ROM 339 F
, RA OF Brown, E In addition, some initially initially some addition, In 332 AYDUK see also see H ONALD note 193, note at 193, 141. UILDING IN THE R
B & Some activists, sensing a shrinking and and shrinking a sensing activists, Some supra supra note 8, at 46. 334 , note 28, at 1933. 1933. at 28, note supra supra HEPARD MARQUETTE LAW REVIEW LAW MARQUETTE note 304, at 18. at 18. 304, note note 167, at 76. 76. at 167, note S ATYAL OMMUNITY supra ) 2/15/2014 C K
Occupy Protesters Take Over Foreclosed Homes & supra supra supra ELETE D , Merker, ENJAMIN OT OT
B N Markovits, at 1935. 1935. at Brown, Brown, O 337 EÑALVER Markovits suggests that some lawbreaking can actually actually can lawbreaking some that suggests Markovits (D ROTEST ROTEST AND
340 P . See . See . Id. . See, e.g. . See -10 337 336. Herscher, 338 339 340. P 332. Les Christie, In those cases, DIY urbanist actions comprise democratic But even many more modest acts of guerilla urbanism are performed 334 335 333.Envtl. N.Y.C. Justice Alliance v. F.3d 214 Giuliani, 67 65, RBAN AGANO such, they embody legitimate forms of protest. impoverishment of physical public space, have purposely laid claim public space to in new ways in order to reclaim it for public use. describe a process by which lawbreaking will “demonstrate the range of imaginative legal possibilities democratic debate”; an eventual beyond legal process will then the formalize norms. new parameters of support the democratic process “by correcting democratic deficits in law existing where the expression is precisely intended to challenge use the norms of for the public space. disobedience—lawbreaking that points out democratic deficits. less-confrontational DIY uses of urban protest movements. space This happened later in the generated late 1990s larger when City’s New York Giuliani community administration gardens instituted to and a lawsuit. movement both a protest spurring development, a make way policy for of more bulldozing with profitable similar forms motives of of protestsignificant acts of rules and order. This often happens to existing dissent from the status quo, as small but Orange’s painting of the involved crumbling deliberate trespass and, in facades a strictly formal sense, of vandalism. abandoned buildings (Benjamin Shepard & Ronald Hayduk eds., 2002); 2002); eds., Hayduk & Ronald Shepard (Benjamin U
384 384 what they saw as abusive bank practices. P 6, 2011, 8:22 PM), http://money.cnn.com/2011/12/06/real_estate/occupy_movement_spreads/ Nickeas, Nix & movement); (discussing Home” the Our “Occupy The gardeners who “surreptitiously graft fruit tree branches onto purely ornamental trees” in San Francisco represent a movement toward using soil and open space for purposes. productive agriculture, not only ornamental 34609-mqt_97-2 Sheet No. 89 Side B 03/17/2014 11:30:34 03/17/2014 B Side 89 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 90 Side A 03/17/2014 11:30:34 . PM
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On a local local a On 341 , 155 U. 30 (describing how government – 385 385 Property Outlaws at 128. at 128.
note 123, at 29 note 193, supra In the case of DIY urbanism, the essential essential the urbanism, DIY of case the In DIY URBANISM DIY The DIY urbanists’ actions thus “force[] “force[] thus actions urbanists’ DIY The 345 supra supra , 342
343 note 28, at 1902. 1902. at 28, note ATYAL ) 2/15/2014 K
& supra supra ELETE D , Lawson & Miller, OT OT N at 1145. 1145. at Guerilla urbanism quite frequently meets both requirements: requirements: both meets frequently quite urbanism Guerilla O EÑALVER 344 (D
. Id. . See, e.g. -10 343. Eduardo Moisés Peñalver & Sonia K. Katyal, 341. Markovits, 344 345. P Illegal property behavior can promote resource use that promotes The second half of Peñalver and Katyal’s formulation supposes 342 M K AGANO C Y programs assist urban gardeners with obtaining legal permission to use vacant lots). legal to vacant permission use obtaining with gardeners programs urban assist shifts of entitlements and laws” in the done. lawbreakers have same way that other property wider human values. Peñalver and Katyal have suggested that an illegal use of property may “places a be higher value on the normatively property in question justified than the true owner when and the there lawbreaker is parties.” some obstacle to a consensual transfer between the breakdown or failure that stymies the correction of deficits in value may be caused by market forces or by the actors’ exclusion (or perception of exclusion) from the normal channels of decision-making. By working level, level, we see this happening again and again with DIY the urbanism. best Whether ideas legal from or illegal, to the extent and they legitimate uses are of useful their urban space, many interventions gain wide acceptance and even administrative processes. become enfolded into city regulatory and
2013] 2013] and policy that inevitably threaten every democracy.” P the value of the larger community. Where underused, urban there land is a lies deficit unused in value; or the entire community suffers the deficit until and unless the land is used in a way that captures its ability to promote human values. DIY urbanists who use abandoned land other or uncontested, underused urban spaces bring a greater value to the community. obstacles to a transaction or other consensual arrangement that would correct the deficit in value. the new users signal that they place a value on the space, yet obstacles prevent the use of normal, formal channels from capturing The that value. true owners, conversely, might signal the low value they their own place urban on property through abandonment—failure to maintain a building or lot, pay property taxes, or use benefits the anyone property in in a the way community. that value of the land and This in turn a message about sends the owner’s perception of a message about the 1095, 1098 (2007). (2007). 1095, 1098 34609-mqt_97-2 Sheet No. 90 Side A 03/17/2014 11:30:34 03/17/2014 A Side 90 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 90 Side B 03/17/2014 11:30:34
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ex ante But But 346 [97:2 [97:2
ONCLUSION 84. – C
To the extent they are inappropriate for for inappropriate are they extent the To V. 347 note 4, at 17, 29. at 29. 4, 17, note Artists themselves may decide to remove art; art; remove to decide may themselves Artists 348 supra MARQUETTE LAW REVIEW LAW MARQUETTE , note 93, note at 93, 283 ) 2/15/2014 YDON Part III.A. Part ELETE supra supra , D , L OT OT N O ESTER (D
. See supra . See, e.g. -10 347 348 At their best, great cities enable people to exercise and expand their 346. H DIY urbanist actions are democracy enhancing for several reasons. Meanwhile, those interventions embraced by or viewed as legitimate DIY urbanist interventions—both legal and illegal—are doing AGANO human potential: economic, expressive, and social. This requires design for what people actually do—visionary ideas aesthetics but rooted in not the daily in experiences of sweeping people’s lives. the context or normatively unacceptable within the larger community, DIY urbanist interventions—whether legal or illegal—have a tendency to disappear over time.
386 386 around the system, DIY urbanists lessen the immediate impacts of these push communitiesfailures and toward corrective actions. First, by involving citizens in creating they change foster at the civic grassroots values level, urbanist and actions done illegally often strengthen point to (and may communities. remedy) deficits in Second, the democratic DIY process caused by governance problems, of property and by a view inequality, that is a poor fit for of complexities by income life. urban community P and are replicated elsewhere. Through DIY urbanism, this absorption of new kinds of improvements into the planning lexicon occurs the subversive Seattle pig made suddenly and mysteriously its as it had statement appeared. Neighbors then may remove vanished tattered just yarn. as Cornstarch crosswalks wash parks that no longer serve a purpose. abandon pop-up away in the rain. Users by the larger community often remain and sometimes even gain formal recognition. The best of these become models for urban improvement legitimacy or normative acceptability naturally of limit their DIY abuse. urbanist interventions design cannot accomplish everything in an evolving physical and social environment; the physical and account for flexibility. legal structures of a city must also tremendous things to improve our cities and are adequately managed by the usual processes of imposing community norms. As we have seen, 34609-mqt_97-2 Sheet No. 90 Side B 03/17/2014 11:30:34 03/17/2014 B Side 90 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 91 Side A 03/17/2014 11:30:34
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, 9 (2011), (2011), 9 ERALD GENCY H Proponents of of Proponents A 349 IAMI IAMI , M 387 387 EDEVELOPMENT EDEVELOPMENT R
. MTY C IAMI IAMI M
, DIY URBANISM DIY note 123, at 37. at 37. 123, note Paris’s Beloved, Legal Artist Squatter Community in Peril Where interventions are successful, cities cities successful, are interventions Where Ownership Transfer a Milestone for Community Gardens 351 supra Brickell to Make Use of Temporary Park ) 2/15/2014 (May 13, 2013), http://www.theatlanticcities.com/arts-and- 2013), 13, (May But for advocates of vibrant cities, perhaps such such perhaps cities, vibrant of advocates for But ELETE D 350 ITIES OT OT The The more troubling aspect of this project was its use of $200,000 of the City’s C (July 18, 2011), http://bxtimes.com/stories/2011/29/bronxtimes-yn_bronx_ http://bxtimes.com/stories/2011/29/bronxtimes-yn_bronx_ 2011), 18, (July Bill Weisbrod, N
Amanda Erickson, Erickson, Amanda O (D
IMES . See . See T -10 . 352. Lawson Miller, & 350. Laura Morales, 351 349 Where needed, successful interventions can and should be protected The market also intervenes to put an end to some DIY urbanist acts. M K TLANTIC TLANTIC RONX AGANO C Y B A value in the property. This under happens when a community city purchases the gardens managing land the and gardens. transfers them to the nonprofits developments developments are not an entirely bad thing. Each of these interventions accomplished the temporary goal of stanching the bleeding in that was otherwise limping an towards blight. Empty storefronts and trash- area strewn vacant lots improvements help arrest the neighborhood’s decline. are actual harms to an area; from market incursions in order to preserve the even greater (non-monetary) temporary times-28-gardens.html. lifestyle/2013/05/pariss-legal-artist-squattors-say-their-liveliehood-peril/5574/. available at http://www.miamicra.com/seopwcra/docs/2011%20Annual%20Report%20formatte d2.pdf
2013] 2013] organically, instead of through the top-down imposition of fully realized plans. In a neighborhood experiencing storefront pop-up shop may give way to an a long-term paying tenant, or a increase in previously vacant lot may find a buyer. To some, allowing the market to property values, a end a good thing is distressing. Advocates for artists are unhappy when a previously rent-free artist’s space is re-leased market rent, pushing the hapless artist out of the space. to a paying tenant at P should pick them up and work to support them, making them legal and permanent. Gardens cannot temporary, able any to be dotted longer here and there on be the urban map viewed because at will, gardens as are inextricably mobile tied to and the people who tend them. more parkland in Miami hold a jaundiced view built of the a developer “park” who with only simply a using three-year the lease; park to critics get expect some estate that market value recovers enough from he to make the the is space attractive land for a until more the lucrative real use. 2008, at 4GR. Community Community Reinvestment Act funds, which perhaps Miami itself CRA points to 2011 a Annual democratic deficit. Report 34609-mqt_97-2 Sheet No. 91 Side A 03/17/2014 11:30:34 03/17/2014 A Side 91 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 91 Side B 03/17/2014 11:30:34
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357 Large-scale Large-scale 355 [97:2 [97:2 It is unquestionably unquestionably is It 353 The Effect of Community Gardens on . 241, 241 (2008). (2008). 241 . 241, CON E
. ST E 03. – EAL note 38, at 92. 38, at 92. note Additionally, when a neighborhood is in in is neighborhood a when Additionally, 356 , 36 R note 38, at 99. at 99. 38, note supra MARQUETTE LAW REVIEW LAW MARQUETTE , note 35, at 805, 826. 805, at 35, note ) 2/15/2014 Ioan Voicu & Vicki Been, supra note 35, at 802 at 35, note , RANT supra supra ELETE D , G supra RANT OT OT N G ; Aoki, ; O (D See
. See, e.g. . Id. . See generally -10 355 354 356 353. But cities also need vibrancy in the spaces between. We should not There still remains a need for developers to do big things. Criticisms 357. Aoki, Much of what DIY urbanists accomplish is too small to attract the AGANO true that big planning projects (both of the old and the newer new urbanism) have urban displaced poor communities through renewal variety gentrification and have exacerbated spatial patterns of segregation. developments developments will doubtlessly remain in the toolbox of city building into the future. underestimate the value of small interventions. show For that example, the existence studies of a community garden increases neighboring the value properties. of Values Neighboring Property the Better Block project might produce some great video footage, but it may take the intervention of the city itself to translate those images to lasting change. of large-scale urban development projects have often focused on their disparate impacts on vulnerable communities. 388 388 For revitalizing areas where there is a risk that such common spaces will be lost to developers, common resources. one This requires thinking of parks and gardens solution as part is urban of urban infrastructure. land This represents a shift trusts from a narrow focus to on maximizing protect economic return (and tax revenues) from parcel each of individual land to a returns to broader the wider view community. of So the too Where with municipality demonstration projects: they of values succeed, and permanently. The and cornstarch colorful bike lanes sidewalk seating of cities should take steps to implement them P than help the community. Society is dynamic; norms about what people involvement involvement of City Hall. Official involvement may in fact hinder more given a much-needed boost to cities and regions. decline, a small intervention early on may prevent more a effectively downward spiral than would a large been set in motion. already after a “vicious circle” of decline has injection of money or resources But it is also economic true activity to that many large-scale central creating cities, projects successful revitalizing have downtowns commercial and and brought entertainment renewed districts that have 34609-mqt_97-2 Sheet No. 91 Side B 03/17/2014 11:30:34 03/17/2014 B Side 91 No. Sheet 34609-mqt_97-2 34609-mqt_97-2 Sheet No. 92 Side A 03/17/2014 11:30:34 PM
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This could perhaps perhaps could This 358 389 389 DIY URBANISM DIY note 136 (proposing a “flexible” permit scheme for pop-up pop-up for scheme permit “flexible” a (proposing 136 note ) 2/15/2014 ELETE supra D OT OT N O (D
-10 358. Badger, M K AGANO C Y restaurants other and interventions). DIY urbanist
2013] 2013] want and where they want things develop faster than cities can keep up with, and the creativity of citizens produce who something actually inhabit that a public space Therefore, may there needs to officials be a way for the residents of cities to do small would not have things to envisioned. shape and improve their environments. P Rather than take this disorder tack, to make we way for would the experimentation do on which better thrive. healthy cities to tolerate a little be envisioned as yet another task of city government—through a newly- imagined Office of Small Things, perhaps—but experience shows even in attempts to that act in ways that are small and local, city government often gets stuck in navigating its own overlapping web of regulations. 34609-mqt_97-2 Sheet No. 92 Side A 03/17/2014 11:30:34 03/17/2014 A Side 92 No. Sheet 34609-mqt_97-2