Enjoy the following article and author quotes on privately-owned public space and the law in a Trump era:
Below, please find a NYT report about the most recent ruling on Pier 55:
The City Club and other critics filed three lawsuits last year arguing that the proposal to build Pier 55, as the project is known, was the result of a “secretive process” devised to evade public scrutiny. The new 2.4-acre pier, they said, had the potential to do irreparable harm to the aquatic environment.
The two sides in the case made their oral arguments before the Appellate Division, First Department, on Tuesday.
The rapid decision upheld a lower-court ruling rejecting the arguments by the critics. The court ruled that the lease did not violate the public trust doctrine.
“The existing record indicates that the trust adequately considered the cumulative impacts of the Pier 55 project and the nearby Pier 57 project,” the court said, before approving the new pier.
Mr. Diller, chairman of IAC/InterActiveCorp, has agreed to take on most of the cost of building and operating the park at the foot of 13th Street, replacing a crumbling nearby pier. The city, the state and the Army Corps of Engineers have approved the project, while the trust completed a lease with Pier 55 Inc., a nonprofit that Mr. Diller and his family foundation established.
Richard D. Emery, the lawyer representing the opponents, said he was disappointed in the decision and would immediately ask the state’s highest court, the Court of Appeals, to hear the case. The opponents also have a lawsuit in federal court seeking to overturn the project’s approval by the Corps of Engineers. Their third lawsuit, against the State Department of Environmental Conservation, is in State Supreme Court in Albany.
“The notion that a project of such enormous proportions in a legislatively protected water sanctuary could be rubber-stamped in this perfunctory way degrades all the environmental protections the public deserves, even if they call it a park,” Mr. Emery said.
Tom Fox, a longtime advocate for the park and a plaintiff in the case, expressed frustration with the ruling. “I think this proves that government spaces are up for auction to the highest bidder,” he said. “Not even the courts will protect the public interest.”
Proponents of the project, however, were elated.
“This was a ridiculous lawsuit from the start, so we’re pleased by today’s swift and sweeping decision,” said Madelyn Wils, executive director of the Hudson River Park. “Today’s ruling marks a victory for the millions who love Hudson River Park, and we look forward to welcoming visitors to what will be one of New York’s greatest public spaces.”
Gov. Andrew M. Cuomo, a supporter of the project, said in a statement on Thursday that the decision “affirms that Hudson River Park Trust and Pier 55 Inc. appropriately assessed the environmental impacts of the project and conducted a timely, thorough review.”
“I look forward to seeing construction move forward,” the governor continued, “and realizing both the economic and recreational benefits this vital park will bring.”
Mr. Diller said he was pleased with the outcome. “I’m sure we’ll continue to be tested,” he said. “I think it’s good for the process.”
(Note: This entry was originally posted prior to a series of judicial rulings in 2016. Those rulings included a New York State appeals court injunction halting further construction of the project. That decision was subsequently overturned and construction is again underway.)
They say history is written by the winners. This blog entry may not matter much in the end, therefore.
This summer, construction is slated to begin on Pier 55, a two and a half acre futuristic park development on Manhattan’s west side. It will “float” above the Hudson River, seated atop dozens of piles driven deep into the bedrock below the murky, slowly remediating waters that run between New York and New Jersey.
As parks go, there is little doubt that the $130 million project will become one of the most innovative designs, nationally and internationally. In fact, the development is so space-aged, many critics have characterized it as a “pipedream,” a “vanity,” a brainchild of a bored billionaire, Barry Diller, and his celebrity accomplice, Diane Von Furstenberg.
Nevertheless, and notwithstanding an impressive David vs. Goliath struggle to slow down the development, Pier 55 has garnered approval from the local community board, a host of elected officials, including Mayor Bill de Blasio and Governor Andrew Cuomo (who rarely agree on anything these days), the courts of law and, most recently, the Army Corps of Engineers, which gave its blessing about a month ago.
For all intents and purposes, that Corps’ approval finally clears the way for the project to be built.
Hardly the stuff of legend, the story of the project—its raison d’etre and the controversy that surrounds it—bears some mention. It’s easy enough to look up the development in the newspapers, which is what I had to do, owing to the deep secrecy that clouds the backstory behind this unique scheme for a public park.
In 2012, representatives of the Hudson River Park Trust approached Diller and Von Furstenberg, hoping to attract financial support to rebuild the defunct Pier 54, which sits on the Hudson near the West Village. The billionaires’ enthusiasm for that terribly deteriorated waterfront parcel was modest, to say the least. However, these would be philanthropists hatched an alternative idea for a park o’er the water. It would replace the Pier 54 altogether. The two charmed representatives of the Hudson River Park Trust (the group charged with developing the pier) whipping up an impressive model, built largely to scale and skillfully displayed at a well-appointed estate on Long Island.
Here was “Pier 55.” The project would be privately financed for the most part, with modest infrastructure investments by the City of New York, valued at $17 million (though many challenge the accuracy of that figure). Diller and Von Furstenberg themselves would raise $113 million, calling on their friends from Hollywood and the music industry for the remainder, bundled under the auspices of a nonprofit organization created for this purpose. There would open spaces for recreation, and there would be spaces for programming, such as a concert stage for paid performances.
No surprise, perhaps, a brouhaha erupted when neighborhood organizers and municipal advocates, most notably the City Club of New York (a civic organization that did battle with Robert Moses in the 20th century) raised objections about the secrecy surrounding the fundraising scheme and the hastiness and absent integrity of the environmental review process. They also attempted to call attention to the dubiousness of building a new project while half of the Hudson River piers languished in ill repair. They were no more enthusiastic about the paucity of community input into the park’s design and programming features. Finally, they expressed intense skepticism about how publicly accessible a privately-financed park will be to people unable to foot the bill for classical music concerts and other ticketed events. These occasions will represent no less than 49% of the “public programming” on the park parcel above the water.
In other words—and quite aside from the potentially devastating impact on improving ecosystems in the Hudson River, specifically, a returning estuarine that will likely be obliterated when the pile drivers hit the bedrock that must gird the project—a serious question had emerged over how public this public park would be after its construction. Let’s face it, notwithstanding the philanthropic motives for building a public place, when something is developed privately, an impressive menu of exclusions becomes possible, at least, if it does not turn into the order of the day.
No doubt, there is a legal doctrine that will stand private developers up if and when they exclude publics from the park: the state action doctrine—a miserably convoluted doctrine that ultimately protects the right of private property owners to exclude unwelcome activities when they see fit to do so. This doctrine is quite central in the story I attempted to tell in PUBLIC SPACES, MARKETPLACES, AND THE CONSTITUTION.
While state action was never invoked in the legal proceedings over the park development, a City Club lawsuit was nevertheless dismissed last month. The Club was unable to persuade the courts that the Hudson River Park Trust misled the State and City during an unusually abbreviated approval process. Nor were they able to successfully make the case that harmful environmental impacts may be embedded in the project design.
Thus, Pier 55 will be built. And it may indeed deliver an array of public benefits ballyhooed by its supporters. Still, I think some intense scrutiny will be merited in terms of the park’s programming. When it comes to accessibility and enjoyment, for example, will park permissions be unfettered? Will Pier 55 be for everybody?
We may not know until the “Rules of Use” sign goes up. If the history of this development proves to be a guide, then decisions about public access and permissible activities are going to be made in private. This is the point I wish to emphasize, since I don’t yet know how I feel about Pier 55 as a public good. Even if the project’s detractors are wrong, that is, even if the park is fully accessible and enjoyable to publics across the City—as opposed to becoming an exclusive (and exclusionary) haunt of wealthy New Yorkers and tourists able to afford its programming—I hope this development will animate new, critical thinking about the privately financed provision of public goods. In a climate of government austerity, where funding is frequently withheld from parks and other amenities that are vital to our public sphere, we have turned to conservancies and other artifices to build and sustain our shared spaces.
It wasn’t always this way, though. And while I don’t want to idealize the past or cling to thinking that may be outdated by the sorts of political conditions that gave birth to the Hudson River Park Trust and its older cousins in Central Park, etc., I am concerned that we are becoming unwilling to inspect the “market as prison” dynamic once described by Charles Lindblom. In assessing how contemporary public policy is made, Lindblom expressed concern that we have systematically foreclosed all but the most capitalistic solutions to public problems. And, yet, there are public goods that the private sector cannot provide in the final analysis.
Whether or not Diller, Von Furstenberg and the private people in charge of this public good will tightfistedly “control the key” to Pier 55, as one online critic recently decried, we appear to have locked ourselves into place-making schemes that summarily exclude government investment and robust public input. Maybe that’s just how it is these days. However, I hope we can take stock of what’s been built through public investment in this United States, as well as how curative that type of investment has been throughout American history. Public Works Administration projects of the New Deal era were certainly as impressive as Pier 55. They also put millions to work, helped create a middle class, and delivered so much of the vital infrastructure that we depend on today. Great Society programs in the 1960s extended that prosperity to Americans of more diverse backgrounds, while offering political roadmaps for social inclusion unwitnessed in this nation.
I’m quite sure I’ll go to Pier 55 when it’s finished. I may even wind up liking it as much as I like the nearby High Line. At the same time, however, I anticipate a more than mild unease about who or what the park is for. That unease stems not only from its private development, but from a planning process that was conducted at light speed, with little to no opportunity for public input.
When a place such as a park is designed and/or treated like someone’s living room, the values of exclusion traditionally exceed those associated with public, practicable space. I think we need to guard against this equation, going forward.
Each year, I run two civic engagement programs at my university. Both programs conclude with mock sessions in which college and high school students take to the floors of the legislative chambers in New York City and Albany, NY. They debate and vote on bills affecting their fellow citizens, following rigorous training modules on public policy making and the legislative process.
It’s heady stuff, to say the least. Young people studying controversial policy debates, and then showcasing their hard work inside the halls of government, while their sitting legislative counterparts watch them do so.
The moment we meet with them for program orientations, participating students demand to know the public policy issue they must ultimately debate in chambers. Indeed, they ask about the issue before they’ve been introduced to the preceding sequences in our training programs—i.e., how legislative bodies function and on whose behalf they engage in the democratic process of decision-making affecting other citizens.
For the last several years, I’ve attempted to match the students’ insistence during that first moment. I’ve responded to their opening question by roaring, “You’re going to debate mandatory prison sentences for people convicted of walking in front of me while sending text messages on their smartphones!”
Some take me seriously. A few laugh while I clownishly reenact what I experience on the street every day, weaving and bobbing around people who text on the street. Most of them think I’m silly. Others appear aghast at my policy proposal, along with my promise that I’ll introduce it to their successors next year, once I have my druthers.
A few of them, I would like to believe, are chastened by the idea that text messaging on the street—what I call “strexting” (that term may cloud the point)—can cause real social problems that need to be addressed through public policy.
So, then, what harm is there in “strexting,” anyway? After all, smartphones are “mobile devices.” Is there some form of unmet social obligation when people use the streets and these devices simultaneously?
What I really want to understand is whether smartphone use by pedestrians does a disservice to public space more generally. Do we (yep, I’ve succumbed on more than one occasion!) damage the publicness of shared urban spaces when we aim our heads down and partake in purely private exchanges while using streets and sidewalks?
Fifty years ago, Jane Jacob, Lewis Mumford and a host of urbanists bemoaned the loss of city streets to the automobile. They looked around and saw an incessant run of urban redevelopment programs, which restructured those streets for car traffic and against human scale—away from pedestrian use and community building. While sidewalks grew narrower, the roads adjacent to them rapidly widened in cities across the United States.
The acts of inhabiting and using the city were mutually affected for the worse, signaling precipitous declines in civility, citizenship and, eventually, urban population itself. The suburbs exploded. Cities, on the other hand, diminished as the traditional sites of public interaction and community, not to mention popular negotiation and identity-making. For lovers of cities like Jacobs and Mumford, the times were changing, but not for the better.
By many measures and optics, things have improved since the fall of urban life at the end of the 20th century. Cities have become “hot” again, as millennials and older Americans seeking fuel savings, housing density and urbanity return to the centers from which their parents fled in the post-War period. Even suburbs are transforming and becoming more city-like amidst significant demographic shifts and architectural canons such as the New Urbanism.
The city is in good shape today. So, then, what’s the harm in a little “strexting” now and then? Only a Luddite would resist the growth of “smart” technology in our shared urban spaces. Maybe street texting is merely a novel expression of public space, something that allows us to share city streets with the personal and professional concerns that make cities vibrant and viable in a 21st century economy. In fact, we use our mobile devices to locate the exact places where we assemble in cities. Similarly, we use them to find each other as our cities repopulate. GPS is no joke these days.
There is no denying some of the pro-technology boosterism. The smartphone is here to stay, moreover, that’s for sure. As above, I’ve succumbed; I’ve used my maps apps on the street, not to mention my restaurant finder, the movie locator and others from the convenience of my own palm. I’ve texted friends that I’m running late to meet them, and I’ve certainly gotten caught up in romantic interludes and emotional skirmishes right in the heart of Manhattan’s central business district during rush hour.
Yet, I also find myself concerned that those are the places where a new social problem is currently pooling. Could mobile devices in streets and city spaces usher in a new and ironic anti-urbanist transformation, as the automobile most certainly did a half century ago?
Quite apart from the subtle safety threats posed by thousands of pedestrians rushing around with their heads down and their attentions gripped by what’s going on in the palms of their hands—as opposed to what’s coming right at them—it seems to me that excessive smartphone use in shared urban spaces may produce the privatizing effect once lamented by Jacobs and Mumford as their cities turned hosts to more and cars and fewer people. The car, they feared, would metastasize into a four-wheeled private domicile, one that would segregate citizens from each other and the spaces they had socially contracted to inhabit with each other.
Will the smartphone impact us that way, too? Despite the fact that we mostly use them while moving through pedestrian spaces (don’t get me started on drivers who text!), we appear to be doing so with diminishing regard for the people who share those spaces with us. I can virtually guarantee that when someone is holding me up on the street, seemingly for no reason, he or she is locked into something private, a conversation made of thumb presses. If a cardinal rule of urban life is coexistence and common work, then what should we make of the insularity and failed cooperation that ensues during these moments?
Is urban space less public to the extent that we so often send our heads down and away from each other, toward our “smart” devices?
January 23, 2016.
They say more than 20 inches of snow will fall by day’s end. If my afternoon walk offered any indication, there’ll be at least that much snowfall on the sidewalks of Brooklyn when the blizzard’s work is done. So, it seems a good day to think about what else is happening on the ground beneath our feet.
The New Year did not roll in the way I anticipated. Nuff said on that point. Suffice to say, many concrete confusions have been ushered by 2016. There have been some ephemeral questions, too, and I find myself wondering more frequently about social media and public space, specifically, social media as public space. Fact is, I’ve found myself inside virtual space with stirring, almost alarming, frequency this year. Some of that may be attributed to my weekly excursions to the Capitol in Albany, NY. “All aboard, Amtrak” is a veritable mantra for me these days.
That wondrous ride up and down the Hudson River inspires lots of meditation, particularly along the interstices between New York’s Upstate locales. I also find myself on Twitter, Facebook and Instagram quite a bit, however. And I notice myself trying to understand the world and my place in it from the vantage of those apps on my phone. The whole thing seems strange, to be honest—and, perhaps, misguided.
One of the underlying questions in Public Spaces, Marketplaces, and the Constitution—one of the book’s baselines, really—goes like this: What is public space? Do we just know it when we experience it? Is it planned? Built and pre-programmed? Is it socially constructed? Politically contested? Legally determined?
I’m not sure those questions can be answered in a definitive way. Maybe we should simply practice our perspectives on public space, just as we practice public space and let the chips fall where they may.
Nevertheless, I repeatedly feel a deep and abiding insecurity while I’m on my i-Phone. I am continually entertaining the idea that I’m not really practicing publicity while I’m scrolling down its screen with my thumb, seeking out the next great news report, photograph, or semblance of personal membership in a community. I am aware that I’m doing something public-like—seeing and relating to others, sure, sometimes comparing myself to them and despairing accordingly.
So, what am I doing when I inhabit those virtual spaces with even greater abandon nowadays? Am I engaging in something public when I read the news on Twitter, navel gaze on Facebook, or admire my friends’ children on Instagram? Am I experiencing or participating in social or political phenomena from the comfort of Amtrak’s 7:15am “Maple Leaf,” en route to Toronto?
I believe I’m doing something interactive, yes, but something still doesn’t feel right. Something doesn’t feel authentically public when I enter those environments. There is, I think, an excess of convenience in a “public sphere” comprised by our personal/handheld devices. Something, I dunno, less participatory about that kind of sphere.
I realize that I’m thinking out loud and sharing about this insecurity in a blog post on the web, no less in hopes of reaching other readers and interested parties. I certainly want to connect with people who agree with me, or others who will at least entertain the gravity of the question I’m trying to pose here.
That acknowledgement goes to one of my primary concerns with virtual space as a model of public space: Again, it seems that social media are all-too rife with their conveniences and confirmation biases. We can click our way to political participation. We can pick our audiences. We can hide behind the anonymity of our oft-creative handles and taglines. We can treat the medium as the message in our virtual spaces—mistaking communications about things and spaces political for those spaces and politics. I’ve been using the terms “clicktivism” and “slacktivism” quite a bit since I wrote Public Spaces, Marketplaces, and the Constitution. I trust there’s resentment embedded in my use of those terms; there’s surely an expression of distrust in using them, and that much is evident.
On the other hand, we know how vitally important social media such as Twitter and Facebook were to protesters who gathered at Zuccotti Park in New York and sister spaces around the US a few years ago. Similarly, we know that the Arab Spring could not have reached critical mass nor could it have sustained its force for extended periods of time without those media. Their utility in alerting people about what was happening where, where people and repressive forces were colliding in “meat space” was essential. The same sorts of vitalities have been expressed more recently in South America, in many Asian countries. The social media behind them were likewise deployed by Black Lives Matter activists inside the Mall of America, in Bloomington, MN this past Christmas.
These instances suggest that there is indeed a relationship between virtual space and public space. I believe I would be remiss if I failed to acknowledge it. In the end, social media and political space may complement each other. We would do well to focus on how that complementarity will manifest as these media continue to expand and Millennials and their successors become the primary inhabitants of our public spheres.
As I write, my hope is that the virtual spaces younger activists depend on for their mobilizations will accommodate and even expand their capacities to redress grievances and resist social injustice. At a minimum, I hope the new media will withstand the politicizations that have traditionally sustained civic engagement among new and under-represented participants in our public sphere.
Yesterday, I recorded a podcast interview with Professor Heath Brown, “New Books in Political Science.”
(It’ll be posted in a couple of weeks. I hope you will check it out.)
Though the focus of our discussion was my study of suburbs, shopping malls, free expression, and the “public forum,” we touched on the issue of virtual space–i.e., social media and the internet.
Prof. Brown raised an interesting point about commercial websites, such as Amazon. He wondered whether these kinds of virtual spaces, specifically, their review pages and bulletin boards, will become the new sites for expression by those who wish to harm and then hide behind their First Amendment protections.
In fact, we are once again wondering and worrying aloud about this sort of question on college campuses, where words that wound appear to be enjoying a resurgence, and where “academic freedom” is being confronted by bolder challenges in an increasingly polarized society.
Will Amazon and commercial sites like it become the new places of hate speech? It’s a question I’ve yet to consider in-depth. As my book suggests, there are reasonable suspicions about the value and staying power of virtual space, at least vis-a-vis embodied space (what I’m in the habit of calling “meat space”).
Still, there may be some sort of meat on this bone, so the work to understand it should continue.
If you happen to be reading this blog, then I welcome your comments on these and other questions.
Should we move aside when these adventurous young people ask for space on an otherwise crowded subway car? I won’t say one way or the other. However, I want to comment on the moment of choice we are faced with, in-itself.
The act of subway acrobats asking for room to groove and our decision to give it (or not give it) are both expressions of public space, in my view. I think that’s the key to consider when these negotiations take place. Frankly, that is why I can’t help but admire and celebrate these urban activists. Yet, that’s not to say I always feel supportive of their activity.
When I first encountered a small group of teenagers wishing to combine break-dancing and pole-dancing on a moving subway car–all the way over the Manhattan Bridge–I thought they were merely vying to get some money. After the second time, and then the third, fourth, etc., I began to understand that they not only hoped to earn money, but an opportunity to get in our faces with their whirls and other moves. And get in our faces they did, with aplomb.
When I felt the wind made by a hightop sneaker across my nose, I turned angry inside. After a while, I learned to meet that anger with a somewhat affected stoicism. Later, I believe, I met that hightop-made wind with a new adrenaline and a certain wonder. That hightop woke me up in an erstwhile passive moment. It made me feel urgent, vital. It did much the same to my fellow subway riders, some of whom expressed impatient appeal, others, farther away from the action, exhibited support.
There is certainly more to say on the matter, which I hope to do in this blog. To be sure, I want to develop this theme further. I want to talk about it, since I certainly can’t do those intrepid moves. For now, the point I wish to emphasize is that these young acrobats are social agents in their own way. They are capable of unnerving us; they may even offend us with their demands to share our subway cars, especially, we sometimes grumble, when they don’t have to ride them to work like we do.
But they are our speakers, our activists–our waker-uppers–the moment they board the car and hit the “play” button. In turn, we are their listeners, sources of validation for the politics they wish to practice. To me, those politics are the politics of too few (good) job opportunities for young people in the city. They are simultaneously the politics of visibility for the under-served, the politics of toleration, of diversity and unexpectedness, of something controversial, insurgent, and yet more open when the music finishes.
For it is in that moment, the interstice between the last beat played and the hat cum acrobat’s prop passed around the subway car, that the city and its ongoing contests for civil rights are reanimated.
I, for one, look forward to that latter moment, at least. And I am thankful for it each time I play the role of its witness.