PRIVATELY OWNED PUBLIC SPACE — FOR WHOM, BY WHOM
Jerold S. Kayden is the Frank Backus Williams Professor of Urban Planning and Design at Harvard’s Graduate School of Design. A lawyer and urban planner, he studies the relationship between law and the built environment and the nature of public-private development. His book, Privately Owned Public Space: The New York City Experience, documents the more than 500 spaces legally reserved for public use on privately owned and managed real estate in New York. First created through a 1961 zoning rule that offered developers additional floor area in their office and residential towers in return for public spaces, these small parks, plazas, atriums, arcades, and sidewalk widenings have proliferated in New York and cities worldwide. Experimenting in a new category of the public realm, they have produced successes, failures, and surprises with their design and use.
Lara Belkind is an architect and planner completing a PhD at Harvard University. She has taught theory and design at Harvard, Yale, Columbia and the Architectural Association. Her research examines design and infrastructure as negotiation strategies in the fragmented metropolis. One summer, she observed 150 privately owned public spaces in New York City.
LB: Your book is a careful spatial analysis of New York’s privately owned public spaces, and it’s from this exhaustive, systematic analysis that you get information and draw your conclusions.
JK: What’s fascinating to me about my book, even this many years later, is that really different types of people like it for completely different reasons. Maybe the thing that delighted me the most was that designers loved it. It’s a classic designer’s book, because it’s…
My book actually was about the tension between private and public. That was the whole point of it and not the catalogic aspect.
LB: It’s about how you draw social conclusions by reading the physical world? Designers are interested in how you can take readings from the physical that are social and political. So I think there’s a lot of commonality.
Today, I’m targeting my questions at the very open term “function.” Intentionally open. I’d like to talk with you about different kinds of function and your interpretation of what “function” means.
Since the publication of your book, Privately Owned Public Space, both it and the spaces it documents have taken on a life of their own: Various individuals have created tours, websites, international photography projects. Skateboarders reference it. Meanwhile, other cities, including San Francisco and London, have begun mapping their own privately owned public spaces (POPS). And perhaps most famously, one of these spaces, Zuccotti Park (formerly Liberty Park), was instrumental to the Occupy movement, for which your book became a kind of handbook.
JK: Bible! laughs
LB: Bible, correction! The Zuccotti Park events made central the debate around how these spaces should be used and how privately owned public space should benefit citizens of New York and the public at large.
FunctionLab is interested in how spaces take on functions that their creators have not necessarily anticipated – whether these creators are designers, developers, or city regulations, i.e. the law. How have you been surprised by the functions that POPS – and your book – have taken on after the fact?
And to compare what happened in Zuccotti Park to Taksim Gezi Park in Istanbul – Whereas Occupy Wall Street was contesting global finance, Occupy Taksim was in itself a conflict over the privatisation of public space. Do you feel your book anticipated that and similar conflicts?
JK: I was not surprised by Occupy Wall Street’s occupation or use or functional use of Zuccotti Park. But I need to qualify what I mean by “not surprised.” It’s not as though I had anticipated it, but I was not surprised because that space, and most of the privately owned public spaces in New York, tend toward a neutrality of function. It isn’t as if they were deeply designed for public use. Indeed one of the conclusions from my book was that 41% of the privately owned public spaces provided, out of the 503 that were in inventory as of the year 2000, were of “marginal” quality…which is a nice word for not usable in any normal sense of the word. But, of course, they were usable if people simply wanted to occupy the space. They were platforms, they were empty spaces, they were vacant spaces, and oddly, the spaces which I, and the City, and the Municipal Art Society together classified as “marginal,” could be spaces occupied for political purposes – functional or usable in that sense – but not be functional or usable for what we normally associate with these small plazas or arcades, which is a place where someone can sit down briefly and relax, meet a friend, read a book, take a little snooze, or pursue whatever more classical uses these spaces would have been put to. So although Zuccotti Park had more design than many of the marginal spaces, it was still a space waiting to be functionally used by groups for more than individual activities. And just as one could imagine a Bar Mitzvah, a wedding, or some sort of group activity to go onto that space, one could also imagine a political group going on to the space and using it. If one had a large imagination, one could have easily imagined, finally, an Occupy Wall Street occupying it, and indeed they had the imagination to occupy it. To me, I look at their functional use of the space in one sense not differently than any other group’s functional use of the space. This is simply one of the functional uses that might be allowed to occur, might be encouraged to occur, or might simply occur on one of these 503, now 530, privately owned public spaces in New York.
LB: It’s interesting when spaces have been neglected or haven’t been inscribed with a set program or intention for how they should be used. They’re more open.
JK: I’m not saying Zuccotti Park was particularly neglected – indeed, it was among the less neglected spaces. It was designed, it was redesigned, it had places to sit, it had some public art, it had landscaping, all of which are things that are not required for every public space. Some spaces that were provided under the zoning rules governing them from 1961 to 1975 didn’t have any required amenities. But those spaces were and are sitting there waiting to be defined by the user rather than by the owner, but the owners didn’t know that at the time. The owners have thought, and I think the City has thought, that that’s fine. But it created an opportunity for a certain kind of user that the owner would not have wanted to use the space in this way.
On the day that Occupy Wall Street occupied the space, the rules for the space were, “no skateboarding, no rollerblading, and no bicycling.” Those were the three rules that were posted. And shortly thereafter, the posted rules were, “you can’t bring sleeping bags on to this space, you can’t bring this, you can’t do that…,” a whole list!
The issue becomes, is political use of space less privileged than eating a sandwich, talking with friends, reading a book, having headphones on, playing chess, taking a photograph, or all the other kinds of activities that have been traditionally accepted as the uses of these sorts of small urban spaces in cities?
This is a work in progress. The protean nature of public space defined by public use ended up promoting a completely different idea of what this space would now be for the owner, who suddenly realized that it could be used for activities the owner never thought it could be used for. And so, yes, you’re right, the failure to inscribe ended up being an invitation for inscription by others. And evermore, the owners of privately owned public spaces in New York are aware of this different kind of use that they, and by the way the City drafters of the zoning, never anticipated: a political use, an occupy use, rather than the passive recreational use that we would normally believe to be the occupation of the plaza or an arcade in the city. One doesn’t imagine Paley Park, for example, being used politically – though Paley Park, I should point out, is not a privately owned public space, it’s a privately owned private space, but it is a classic model of a wonderful space. I assure you, the owners there wouldn’t tolerate a political demonstration, but they wouldn’t have to. [Paley Park is a private pocket park located on 53rd Street in Manhattan. CBS chief William S. Paley financed its construction in 1967 and dedicated it for public enjoyment in memory of his father. William H. Whyte documents Paley Park in his film, “The Social Life of Small Urban Spaces.”]
LB: Paley Park perhaps inspired this legislation in the first place?
JK: It inspired later types of public spaces. Remember that 1961 was the birthdate of incentive zoning for plazas and arcades. What really inspired the idea was Seagram [by Mies van der Rohe] and Lever House [by Bunshaft/SOM], and particularly the plaza in front of Seagram. But Seagram was not copied in terms of public space use.
In my book I describe how Philip Johnson recounted to William H. Whyte – I don’t know where ‘Holly’ Whyte got this reaction from Philip Johnson, but of course Johnson assisted Mies on the design of the Seagram Building – that when Mies noticed that people were using the plaza in front of the Seagram Building, Mies was surprised. And he was surprised because he didn’t design that plaza for public use, he designed that plaza to set off the building. It was an architectural, a formal relationship, as opposed to a design of a public space for public use. Those fountains – which are used by people, and the space itself – which becomes a mixing bowl of standing and sitting people, with the steps and ledges that are there – were simply not deeply designed for public use. You can compare those people who use Seagram Plaza with those who used Zuccotti Park – both equally unanticipated. That’s what’s interesting about space that is not inscribed with uses or insertions of program or amenities that make it harder for them to be protean, to be universal and usable for all sorts of things.
That’s the issue. What are they intended for? Nobody really sat down and said – certainly not with the early plazas and arcades – “who are we doing this for?” Public use was not the driving concept.
That’s why the zoning definitions for these early spaces – and there were several hundred produced under those early provisions – didn’t demand anything which would make them usable by the public in more than a “walk through it” or “stand in it” sense. And a lot of them are so terrible: they’re in the shade, they’re windy, they’re unpleasant; they discourage public use rather than encourage it.
LB: Did the Occupy events inspire you to reflect on the function of legal gray areas? It was interesting how Zuccotti Park was suddenly adopted – the realisation was that it was actually easier for the Occupy movement to use privately owned Zuccotti Park than Wall Street itself, which is a highly controlled space even though it’s a public street
JK: That’s true. I think irony is the right word. One of the oddities of all this – and I’ve written and talked about this quite a bit – is that Occupy Wall Street had more rights in a privately owned public space than it had on Wall Street, than it had on the public sidewalk surrounding Zuccotti Park, or than it had several blocks to the north in City Hall Park. Now, they didn’t want to occupy City Hall Park because their movement was addressed to Wall Street rather than to local government. It was “the 99% and the 1%.”They wanted to occupy something associated with Wall Street. On the other hand Zuccotti Park was also actually a space where they could stay overnight, and whether this was a serendipitous realisation or a tactical realisation, it was welcomed and it allowed them to stay in the space far longer than had it been publicly owned.
LB: It’s interesting that they ended up in a global space rather than a city space, a space with a kind of global geography.
LB: So it was discovered that the owners did have some ability to create the rules for how Zuccotti Park could be used. Do you think this process was a clarification?
JK: No, it wasn’t a clarification, it was a reaction. I mean the owner couldn’t believe, never suspected that this could happen, nobody did. After the owners of Zuccotti Park posted these rules, there were owners throughout the city posting identically worded rules at their privately owned public spaces. We had a revolution of postings of rules and a revolution of what the rules would be in terms of being express and articulated. Before, many owners wouldn’t have thought it necessary to say “you can’t do this, you can’t do that,” because nobody had done this or that. They had rollerbladed, they had skateboarded – “ok, we’re going to tell them not to do that” – but they hadn’t occupied and occupied politically. Once they did, then the owners responded. Can the owners enact these rules or do these rules violate the basic publicness of what the space was meant to be under the zoning law? It’s a question of interpreting the zoning law, and the zoning law is silent about what users can do in these spaces and silent about what rules owners can apply in these spaces. It’s literally silent.
And the gloss that the City government placed on the adoption of rules was that the rules would have to be reasonable. You can look in my book, there’s a section that deals with rules and what the City position was [prior to Occupy] in regard to the types of rules that owners could impose in a space.
This is from page 38 and 39: “The Zoning Resolution is silent, however, when it comes to the owner’s ’management’ of use by members of the public within the privately owned public space. To what extent may an owner craft and apply its own rules of conduct for members of the public? A number of spaces already display signs posted by the owner listing a substantial number of forbidden public activities. The Zoning Resolution requires privately owned public spaces to host “public use,” but never expressly defines what limits, if any, an owner may impose on such public use. The Department of City Planning has taken the position that an owner may prescribe ’reasonable’ rules of conduct. In determining the definition of ’reasonable,’ the Department has looked to the rules of conduct applicable in city owned parks for general guidance. Thus, for example, the Department has considered the dog leash requirement, a ban on the consumption of alcoholic beverages, or a prohibition on sleeping in an indoor space to be reasonable. On the other hand, suggestions by owners that they be allowed to exclude ’undesirable persons’ on some basis other than improper conduct, or to set limits on the amount of time a member of the public may sit in or otherwise use a space have been considered unreasonable. Other fact patterns have and will arise to help shape the notion of reasonableness. For example, may an owner prohibit a member of the public from taking a photograph or speaking into a cassette recorder at a space? What about rules against listening to a radio, playing a musical instrument or in-line skating? May an owner bar political candidates, organizational representatives or activist individuals from seeking signatures for a petition or from handing out literature?”
LB: Amazing. Does this demonstrate to you a significant cultural evolution since the zoning language was written?
JK: No, it doesn’t to me. We can look separately and discretely at Occupy Wall Street and what it represents. What it does demonstrate to me is the endurance and strength of physical public space as necessary to host political activities that make the powers that be aware that something is happening. And that digital public space – which is the latest and greatest alternative to physical public space – is not an alternative but simply an addition, a complement. Physical public space retains its robustness, whether it’s in Zuccotti Park, Tahrir Square, Gezi Park, outside of St Paul’s in London, in Boston’s Greenway, or in any of the other hundreds and hundreds of spaces that accommodated parts of the Occupy movement worldwide.
LB: There was a lot of discussion about how virtual and physical space were intertwined in the Occupy movement.
JK: Fused together. You use social media but what do you use it for? To get people to gather at a physical space. They work hand in glove. But I think the hand finally is the physical.
Let me say a few other things:
One of the questions that arose after Occupy Wall Street was whether it would be intelligent to design spaces, privately owned public spaces, for political protest. And I protest that idea. At least in so far as Occupy Wall Street goes, part of the allure, part of the intent of the action, was to be subversive, to be transgressive. And the idea of designing, of civilising public space, for transgressive or subversive uses is to me an oxymoron. Civilized transgressive space…you can’t do that. Now, we could look at Speaker’s Corner in Hyde Park, which is a flat space that just exists and people can come and say whatever they want to say – fine. But with regard to Occupy Wall Street, a designed space might have been inconsistent with the very spirit of what they were doing. That’s not true of all political demonstrations, but there’s something about the transgressive aspect of political movements taking over, whether it’s a street meant to be used for cars –using it for political action. There are spaces, certainly plazas in front of city halls, that are in a way designed for political protest. They match up with that. I think we have enough public space, honestly, for political protest. I’m not someone who pushes “let’s reconsider our design for privately owned public spaces to accommodate political protests.” But there is an opposite element of privately owned public spaces where they become designed against what I would call an individual’s political and practical use of space – use of space by the homeless or use of space by others who don’t have other kinds of spaces to use. The idea that owners of these spaces should be able to design against these people, through insertions of spikes and dividers and other barriers, to me is political, is design against a politics of inclusion that is problematic. With regard to privately owned public space, I think less about designing for robust political protest and more about preventing designing against individual daily political and practical participation realized by everyone having access to a space.
LB: Which may be part of a larger political operation to move certain categories of people out of the city or out of sight?
JK: Yes, absolutely. Out of the public realm.
LB: Out of sight, out of mind… Beyond the political functions of these spaces that you’ve witnessed since you wrote the book, have you been thinking about the function that these spaces have in the city in new ways, for example, in terms of the city’s ecology?
JK: I continue to be relatively disappointed in the performance of privately owned public space in New York City and elsewhere – only because I have aspirations for these spaces that have not been realised. They do perform a useful function in cities worldwide, whether in New York City, San Francisco, Seattle, Seoul. But I’ve referred to the New York spaces aspirationally as a disaggregated Central Park. The spaces together represent roughly 10% of Central Park. What if we had aspirations that they ought to be as good as 10% of Central Park? They simply haven’t achieved that, but they have, nonetheless, been valuable and used. What my efforts have gone toward post-book is to make these spaces better, to have owners improve them, to have the public be aware of them, and to do this in a cooperative rather than a confrontational mode of operation. It’s been made more difficult post Occupy Wall Street because, now, if the owners see two or three people on the space they get nervous that there’s going to be an occupation. I think Occupy Wall Street made owners far less accepting of group use of a space, and you see that in the posting of signs and a heightened sensitivity to the appearance of groups. I can only imagine what happens when 20 people suddenly are on a space, some management person calling up some other management person and saying, “Houston, we’ve got a problem.” I’ve heard anecdotally that this does happen and it’s led to more owner control. There’s even less interest in encouraging the public.
I think there needs to be engagement from the bottom up with everybody in a discussion about how these spaces can contribute more to the city in ways that don’t put the owners of the spaces in a situation of great fear, but that at the same time don’t allow owners to take the spaces out of the public use. Remember that the owners did receive a very significant financial benefit in terms of zoning concessions in return for these spaces. The owners were not forced to provide these spaces – they voluntarily provided them in return for being paid through zoning concessions. I have less sympathy given that owners are benefitting year after year by renting out or selling extra square feet in the building. That is money.
LB: Security and politics may be getting conflated. As an owner, you might feel uncomfortable about more than 2 or 3 people in your space for a political demonstration but can also have concerns about terrorism and these are confused or are providing an excuse to exclude legitimate public use?
JK: Right. It’s not that I don’t understand these concerns, but this is public space! It was provided to be public space, not as a philanthropic gesture, and not even as a requirement, but as the result of a zoning incentive. So the owners are forced now to make sure that there is public space there, but that can’t simply be defined by owners alone. The meaning of public space needs to be defined by a large group of people including users, civic activists, the City, the owners, etc. This needs to be a big dialogue, a big discussion, which has simply not occurred. Occupy Wall Street provided an opportunity to reengage in a discussion but the discussion has not really taken place. A website that I have up (apops.mas.org), and my not-for-profit group, Advocates for Privately Owned Public Space, working in cooperation with the Municipal Art Society of New York, is an attempt to create a virtual space where some of this discussion can occur. But it has to lead to improvements in the field.
LB: Finally, how have events of the last ten years shaped your thinking about the central question – Can a space be designed through regulation? Can such a space ever be as public, or have as much general benefit, as a space expressly commissioned by a public entity? In other words, can this private disaggregated Central Park ever equal Central Park?
JK: I think the answer is that the identity of the owner matters but is not outcome determinative. By that I mean a private owner does have certain proclivities toward overseeing the space in a way that doesn’t detract from the generation of profits from the running of real estate. At the same time, public owners are not always welcoming of the full public either. The occupation of a privately owned public space rather than City Hall Park demonstrates that. There were more rights, at least for the moment, in Zuccotti Park than in City Hall Park and there are many examples of the public sector wanting to deeply control public space. We see that worldwide with regard to political demonstrations. Gezi Park is an example of a reverse idea of privatisation by the public sector of a publicly owned public space, which really pulls the mind forward. Simply looking at the identity of the owner doesn’t answer the question that you have asked, you have to delve deeper.
I think there needs to be an intention from the start – from the design phase through stewardship – along with express open discussion about what’s going to happen on this space and what can make it public. You can design more for public use or design less for public use. You can oversee and manage more for public use or less for public use. And for each modality of public space production, you need to be explicit in thinking about and writing rules that govern the provision as well as oversight of the space to make it possible to realise the objective you have. You can’t simply give it to fate, or say “whatever will happen will happen.” It has to be intelligently done from the get-go or you will end up with an ambiguity that skews against robust public use.
LB: Thank you for an interesting conversation –As you mention, this question of just what is “public” is very layered.