The hybrid nature of Privately Owned Public Open Space (POPOS)

By Professor Sarah Schindler

Canal Plaza in Portland, Maine (Photo By Corey Templeton)Canal Plaza is located next to one of the busier intersections in Portland, Maine’s Old Port. It recently made local news because the owner of the plaza announced plans to replace the large concrete planter and tall trees that currently occupy the center of the plaza with a one-story building. The owner hopes that the building and new landscaping will enliven the space, which he currently views as “dead space,” which is “unwelcoming to pedestrians and a place for homeless people to sleep and drink at night.”[1]

One interesting feature of Canal Plaza is that it is an entirely privately owned space. Although the public regularly crosses this plaza to enter the surrounding buildings, the public has no express right to use or linger in this space. Indeed, once when I was canvassing in front of this building, I was told that I needed to stay on the sidewalk and could not stand on the plaza.

This property arrangement appears to be common in Portland. Open space within the city’s downtown area is generally either privately owned – like Canal Plaza – or publicly owned – like Congress Square Park. However, in a number of cities across the country (and internationally as well), the property structure surrounding open space in urban downtown settings is more of a hybrid. It’s not totally private, but it’s not totally public either. These hybrid spaces are known as Privately Owned Public Open Space, or POPOS. From a pure aesthetic standpoint, a POPOS might look identical to the current Canal Plaza: an expanse of open space in front of an office building. But sometimes these spaces are located inside commercial buildings, such as a corporate atrium or a garden on a building’s 4th floor. And while these spaces are privately owned and operated, they are required by law to be open and accessible to the public.

Why would a developer agree to this? Generally, it’s in exchange for the right to build a bulkier or taller building than would otherwise be permissible under the zoning ordinance. For example, an ordinance might limit buildings downtown to twenty stories, but if a developer agrees to provide publicly accessible open space as a part of the project, she might be permitted to construct an additional five stories. This is sometimes referred to as incentive zoning or a density bonus. Thus, the developer gets the benefit of the additional five stories of private developable space, and the city gets the benefit of the additional public open space, which should alleviate some of the harms that are associated with denser development, such as a loss of light and air.

Professor Sarah SchindlerIn my latest law review article, “The ‘Publicization’ of Private Space,” forthcoming in the Iowa Law Review, I consider whether cities and their residents are getting the benefit of this POPOS bargain: do these spaces live up to public expectations about the roles that public space should play, and the value that it should provide to communities?

First, it is important to acknowledge that public space is a valuable and important feature of public life. When public space is functioning well, it provides a site for interactions between people who come from diverse backgrounds and  viewpoints. It functions as a site for free assembly, as well as a refuge for those with nowhere else to go. In recent years, truly public space – that which is publicly owned and maintained- is becoming less common. This is in part because cities are strapped for cash, and thus have turned to the private sector to provide goods and services that were historically provided directly by municipalities. Public space has not avoided this fate: cities have sold off park land to private developers, and many public parks are now privately managed. The result is that much of our urban public space is now privatized.

I decided to investigate POPOS for a few reasons. First, although some commentators have described them as another example of public space that has been privatized, I view POPOS as something different and unique. As the title of my article suggests, POPOS are private space that has been “publicized”- or made more public than typical private space. Although POPOS are in fact privately owned and operated spaces, they are legally required to be held open to the public, for the benefit and use of the public. Thus, while many commentators refer to the right to exclude others from private property as one of the most important sticks in the bundle of property rights, developers who agree to create POPOS are giving up a portion of their right to exclude (at least in theory, as I will discuss below). I believe that using a “publicization” lens instead of a privatization lens can assist us in thinking about how POPOS are more like public space than private space. This, in turn, could result in an importation of the norms that we typically associate with public space into these POPOS.

That leads to the second reason that I wanted to study POPOS: on the whole, and upon investigation, they are pretty poor substitutes for public space. Again, many cities think of POPOS as a benefit; they think “well, we are letting the developer build a taller building, but look at this privately owned public space we are getting in return!” In fact, POPOS are often poorly designed, underused, and exclusionary. For example, if a POPOS is a garden on the 4th floor of a corporate office building, a person must first know that the garden is there, then be confident enough to enter the building, perhaps even sign in with the security guard, and then go up an escalator, stairs, or elevator to reach the POPOS. These barriers to entry all serve to exclude members of the public who have no other reason to be in the building. Further, most POPOS lack detailed rules for how they may or must be used. Thus, even if you reach the garden, can you protest there? Can you take a nap? Can you fly a kite? In the absence of legislatively set rules, the public’s use of POPOS is often policed by the building’s private security guards who may be more focused on protecting the interests of the building’s private tenants and owners than the interests of the public.

In my article, I address these physical and operational features of POPOS, and I consider what cities can do to improve them moving forward. I conclude that, once cities and building owners have decided to use POPOS as a way to provide more urban public space, they must do more to ensure that the physical design features of these spaces, as well as the norms and rules that govern their use, focus on the public purpose and function of POPOS. Unless and until those changes are made, POPOS will remain underused, and cities and their citizens will be getting a bad deal from developers.

[1] Project to transform ‘dead space’ at Portland’s Canal Plaza begins, Portland Press Herald (April 17, 2017).