Beware the Public-Private Label

When we digressed the other day from our usual land-use/eminent domain blogging, to indulge in a bit of gastronomic humor arising out of the “Occupy Wall Street” caper in New York (, we didn’t realize that it too has a land-use wrinkle to it. Enter Jerold S. Kayden, professor of urban design at Harvard, with some commentary on the land-use aspects of things. His op-ed piece, Meet Me at the Plaza, N.Y. Times, October 20, 2011, at p. A25, is educational. It informs us that those “private” parks in New York, like the now famous (or is it infamous?) Zucotti Park that has become the headquarters of the “Occupy Wall Street” crowd, is one of many small, nominally privately-owned parks scattered throughout New York. They came about when the city decided to encourage their creation by offering developers a bonus of 10 square feet of building space for each foot of park space. Of course, the predictable happened. Since the city regulations said nothing specific about what was to be done with these little “parks” many of them became useless patches of concrete that suit the convenience and sought-after image of the developers. And why not? After all, if those parks are private why shouldn’t their private owners manage them as they see fit within the bounds of the law?

But, says Professor Kayden, the foofaraw over Zuccotti Park has stimulated a movement to have the city impose “universally applicable rules prohibiting future Occupy Wall Street-style use of public space, along with the automatic right to close all [park] space at night.” So what could be wrong with that? Well, according to Professor Kayden, that raises “important questions. Should owners be allowed to prohibit use by organized private groups, whether for political rallies or spontaneous gatherings? Are passive activities like quiet conversation or lunchtime eating to become the only approved conduct? Should all owners have the right to close their spaces at night?”

We have problems with these questions. The third one in particular should be a no-brainer. If these spaces are to be nominally private, what’s wrong with their owners closing them down for the night? Hasn’t Professor Kayden heard of New York folks who go bump in the night and engage in anti-social activities in parks? So what could be wrong with closing the parks to prevent that? And why should hard-working, lunch-eating New Yorkers out to catch a pleasant break and  a few rays with their lunch  be displaced by hordes of chanting political activists out to peddle their ideological nostrums? After, all if these parks are to be deemed “public” that means that their primary function is to provide places of repose for the public, that any member of the public can use them without fear of being displaced by a horde of chanting, sign-waving wackos out to make a political point?

And that reminds us. Why aren’t the New York city authorities clearing that nominally private Zuccotti Park? Isn’t the protection of private property one of the core functions of government?

Finally, being the curmudgeonly type that your faithful servant tends to be at times, we can’t help wondering if the attitude toward those park-occupying protesters would be similarly benign if they were neo-Nazis waving swastikas and otherwise displaying their familiar BS. Do you suppose that the city of New York and the bien pensant folks like Professor Kayden would  be similarly understanding of their occupation of a private park that in theory is supposed to be open to all New Yorkers as a place of repose? Call us cynical, but somehow we doubt it.

Follow up. If you ask us, New Yorkers, and that includes the New York Times, are making too big a tsimmes out of this narishkeyt (consult Leo Rosten’s “The Joys of Yiddish,” pp. 415 and 263 respectively). Now, the New York Times has chimed in editorially, commending the local Community Board for its “more sensible response.” (Editorial, A Good Approach on Wall Street, N.Y. Times, Oct. 25, 2011, at p. A24). And what might that be? A call to the protesters to limit banging their drums, chanting etc., to “two hours at midday,” an effort even the Times finds “not realistic.” And — and here it comes, folks — for “the city” to arrange  for “off-site portable bathrooms to be paid by local donors.” So why won’t the Board members perform these commendable donative deeds themslves? They don’t say. Why mess with the protesters’ poop when they can demand that  someone else can do it for them? Talk about a nanny state!

In the meantime, the protesters are digging in for the long run and  “winterizing” their tents, and the cops don’t plan to do anything, even though Mayor Bloomberg avers that the First Amendment protects free speech, not the right to pitch tents on somebody else’s property.

And so it goes. So if you ever need an example of the  deterioration of American society — its inability or unwillingness to maintain basic law, order and sanitation in the streets — look no further than this caper. While you’re looking, you might also read Mark Steyn’s recent bestseller, “After America.” It will go a long way toward putting all this nonsense into focus.


Leave a Reply

Your email address will not be published. Required fields are marked *