Thursday, July 5, 2007

When public spaces are privatized, what rights should the public retain?

["Hometown Week"]

   Independence Day gives one thoughts of history and family, and with this notion I present the 2007 version of "Hometown Week."  I'm spending much of the summer near my old hometown of Silver Spring, Maryland, which, coincidentally, is experiencing many of the important land use law debates that swirl around our nation.  Silver Spring is a large unincorporated blob (typical under Maryland law) that includes high-density urban areas, low-density exurban tracts, some very wealthy areas, some quite poor neighborhoods, and a true diversity of cultures -- "America in miniature," as Maryland once used to label itself.

Silverspringdowntownfountain    In the past few weeks, Silver Spring has been at the center of a controversy concerning the privatization of public space.  A couple of years ago, the county government used millions of taxpayer dollars to "revitalize" the old urban retail downtown with a new development project of chain stores and restaurants -- a move of which I was critical, even though it has been successful in bringing many more people back to the old downtown.  The outdoor development area -- unimaginatively called "downtown Silver Spring" -- stretches for about two blocks, mainly along Ellsworth Drive, a venerable old street just a block off of what used to be Silver Spring's main drag. 

    But is Ellsworth Drive now public or private?  The controversy sprung into the news when a local man began to take photos, only to be stopped by a security guard of the development company that runs the new retail area.  The company interprets its contract with the county government as allowing it to control nearly all activity in the area, even in spots that would appear to the average uninformed citizen to be public property.  Here are articles from the Washington Post, first on the photo incident, then on the development company's revision of its policy, and a July 4 update.

   This controversy opens the large can of worms concerning the privatization of public property, both by government and private initiative.  Courts have been inconsistent in their decisions as to whether public rights vis-à-vis government (such as the right to protest and hand out leaflets) apply in the new private-owned public spaces, such as shopping malls, that have largely replaced public streets and squares.  Then there is the issue of the "public trust" doctrine, through which courts sometimes limit the ability of government to privatize public areas, such as navigable waters.  The most infamous case was when the Illinois legislature in effect transferred much of the Chicago waterfront to a railroad in the 19th century.  Some public advocates contend that government should not be able to "privatize" public places such as Ellsworth Drive.

   My suggestion here is less "rights" oriented than practically oriented.  I do not necessary look with horror at the leasing or selling to private developers of once-public spaces.  But when government does so, it should place in the contracts, leases, and deeds certain conditions to reserve public rights.  One such right could be the right of persons to engage in certain (maybe not all) first amendment activities on the property.  Other retained rights would try to make the privatized spaces more public-spirited, by retaining with the government the overseeing and regulating of activities, such as the cost and selection of food and other services in places such as airports and sports venues.  This is the great thing about contracts -- government can grant to the private sector the duties of operation, while retaining to the public some of its traditional rights.  It may not be mandated by the federal or state constitutions, but it is land use good policy nonetheless.   

http://lawprofessors.typepad.com/land_use/2007/07/when-public-spa.html

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