University of Maine School of Law University of Maine School of Law Digital Commons Faculty Publications Faculty Scholarship 2018 The "Publicization" of Private Space Sarah B. Schindler University of Maine School of Law Follow this and additional works at: https://digitalcommons.mainelaw.maine.edu/faculty- publications Part of the Law and Society Commons, and the Property Law and Real Estate Commons Recommended Citation 103 Iowa L. Rev. 1093 (2018) This Article is brought to you for free and open access by the Faculty Scholarship at University of Maine School of Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Maine School of Law Digital Commons. For more information, please contact [email protected]. SCHINDLER_PP_FINAL (DO NOT DELETE) 3/8/2018 1:12 PM The “Publicization” of Private Space Sarah Schindler * ABSTRACT: Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or “POPOS.” These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This analysis is especially important because in embracing POPOS, cities have made a tradeoff—they allow developers to construct larger buildings in exchange for the provision of this publicly accessible (yet still privately owned) space. Although POPOS are the primary form of new urban public space in many areas, legal scholars have largely ignored them, and many cities have failed to educate the public about their existence. This Article suggests that POPOS regularly fail to achieve the goals of “good” public space, in part because they are often exclusionary; they only feel welcoming to certain people, and they only permit a limited number and type of activities. Thus, this Article provides suggestions for improving POPOS, by changing the laws that govern their design and use, and importing the norms that we typically associate with public space into these privately owned spaces—a process that this Article refers to as “publicization.” In this way, this Article aspires to map a path forward so that POPOS will function as a form of public space worthy of the tradeoff that cities are making. * Edward S. Godfrey Professor of Law, Associate Dean for Research, University of Maine School of Law; 2016–2017 Visiting Research Scholar, Program in Law and Public Affairs, Princeton University. This Article has benefited greatly from comments received during the Princeton University LAPA seminar and workshops at Tulane, Colorado, Suffolk, Connecticut, Tel Aviv, and Vermont law schools. Thanks also to Princeton University’s Program in Law and Public Affairs for the time and space to work on this project. I am grateful to Alison Isenberg, Randy Beck, Kathryn Abrams, Melynda Price, James Fleming, David Rabban, Kellen Zale, Dmitry Bam, Jerold Long, Dave Owen, Christian Turner, Jeff Thaler, Vanessa Casado Perez, and Chris Odinet for their helpful comments. 1093 SCHINDLER_PP_FINAL (DO NOT DELETE) 3/8/2018 1:12 PM 1094 IOWA LAW REVIEW [Vol. 103:1093 I. INTRODUCTION ........................................................................... 1095 II. PUBLIC SPACE AND ITS PRIVATIZATION ....................................... 1100 A. THE VALUE OF PUBLIC SPACE ................................................. 1100 B. AN ASIDE: PUBLIC SPACE AS ROMANTIC IDEAL OR EXCLUSIONARY REALITY? ...................................................... 1104 C. THE PRIVATIZATION OF PUBLIC SPACE ................................... 1106 1. How Is Public Space Privatized? ................................. 1106 2. Reasons for the Privatization of Public Space ........... 1109 III. PRIVATELY OWNED PUBLIC OPEN SPACES ................................... 1114 A. WHAT ARE POPOS? ............................................................. 1114 B. WHY ALLOW DEVELOPERS TO CREATE POPOS IN EXCHANGE FOR LARGE BUILDINGS? ........................................ 1116 C. INCENTIVE ZONING, CONDITIONAL USE PERMITS, AND THE CREATION OF POPOS ............................................................ 1117 IV. PROBLEMS AND CONCERNS: A CRITIQUE OF PRIVATELY OWNED PUBLIC OPEN SPACE ...................................................... 1120 A. LIMINALITY AND LEGAL STRUCTURES .................................... 1121 B. A LACK OF SUFFICIENT LEGITIMACY, DEMOCRACY, AND GOVERNANCE ....................................................................... 1125 C. A LACK OF INCLUSION ........................................................... 1129 1. Exclusion Through Design ......................................... 1130 2. Exclusion Through Discretionary Enforcement of Rules and Norms ..................................................... 1134 D. A LACK OF AUTHENTICITY ..................................................... 1138 V. PRIVATE SPACE AND ITS PUBLICIZATION ..................................... 1140 A. FRAMING POPOS AS PUBLICIZATION NOT PRIVATIZATION ....... 1140 B. BETTER LIVING THROUGH PUBLICIZATION: MAKING POPOS MORE PUBLIC ........................................................... 1141 1. Norms ........................................................................... 1142 2. Laws .............................................................................. 1146 i. Legislation/Ordinances ........................................... 1146 a. Design ............................................................ 1147 b. Use .................................................................. 1148 ii. Courts ..................................................................... 1149 VI. CONCLUSION .............................................................................. 1152 SCHINDLER_PP_FINAL (DO NOT DELETE) 3/8/2018 1:12 PM 2018] THE “PUBLICIZATION” OF PRIVATE SPACE 1095 I. INTRODUCTION There is a hidden garden on Fifth Avenue in New York that is open to the public. You cannot see it from the street; it is on the fourth and fifth floors of a tall building, and there is little signage directing you to it. The garden is not open to the public just because the building owner is generous; it is open to the public because it must be. The developer provided the garden in exchange for the right to make the building taller than it otherwise could have been. Although you now know about the existence of this garden, accessing it requires a few more steps. First, you have to enter the building and put your bags through an x-ray machine. Then you have to take the escalator, if it is open (and it is often not), or the elevator, which is sometimes manned by security guards, up to the garden.1 Even after all of this, the garden might be closed if the weather is bad. You will have to ask a security guard to be sure. This garden is an example of privately owned public space. The private owner of this particular public space? Donald Trump. The location? Trump Tower. The mention of urban public space might bring to mind a variety of images: a grand public park like San Francisco’s Golden Gate Park, the many streets and sidewalks that traverse our cities, or a plaza in front of city hall. Historically, state and local governments owned and managed properties such as these.2 However, in a number of cities, new public space of this sort is becoming rare; frequently, newly created public space is privately owned and managed.3 There are numerous examples of spaces that are open to the public yet owned by private entities: malls, private university campuses, and pools that require membership. But this Article focuses on a creature developed by local governments known as privately owned public open space, or “POPOS.”4 POPOS are typically created in one of two ways: (1) They are 1. Michelle Young, The Privately Owned Public Space Inside Trump Tower Is Already Less Accessible, UNTAPPED CITIES (Dec. 9, 2016), http://untappedcities.com/2016/12/09/the-privately-owned- public-space-inside-trump-tower-is-already-less-inaccessible. 2. Some cities now contract out management of these spaces to private, nonprofit organizations. For example, Manhattan’s Central Park is managed by the Central Park Conservancy—which also provides approximately three quarters of the park’s operating budget—under a contract with New York City. About Us, CENT. PARK CONSERVANCY, http://www.centralparknyc.org/about/about-cpc (last visited Dec. 17, 2017). 3. For example, New York, San Francisco, and London have all gained new POPOS in the past few decades. See infra notes 132–35 and accompanying text (giving data showing the prevalence of POPOS). 4. While San Francisco refers to these spaces as POPOS, New York and much of the urban planning literature refers to them as POPS: privately owned public spaces. This Article will generally use the term POPOS, but will use POPS when quoting existing literature from New York. Also, though the term as defined here is singular, it will occasionally be necessary to use POPOS to refer to privately owned public open spaces (plural). The distinction should be clear from the text. SCHINDLER_PP_FINAL (DO NOT DELETE) 3/8/2018 1:12 PM 1096 IOWA LAW REVIEW [Vol. 103:1093 offered by a private developer in exchange for a density bonus, which allows the developer