Owners of the park at the center of the Occupy Wall Street protests are losing patience, but what can they do?

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'The Pantry' at Zuccotti Park: Not, probably, Brookfield's 'intended use.' (Image: pfarnac1)
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Nancy Scola

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As hundreds, and on some days, thousands of protesters continue to camp out in the three-quarter-acre parcel of land in lower Manhattan known as Zuccotti Park, the real-estate company that owns the space is expressing growing annoyance.

“For more than two weeks, protestors have been squatting in the park,” said Brookfield Office Properties, the private owners of both the park, which by agreement with the city is open to the public, and One Liberty Plaza, the 54-story building to which the park is tied, in a statement released late yesterday.

“Brookfield recognizes people’s right to peaceful protest; however, we also have an obligation to ensure that the park remains safe, clean, and accessible to everyone,” the statement continued.

Meanwhile, the city has been noncommittal about whether it intends to bring about an end to the protest, or how or when. Brookfield's complaints are not clearly the job of the city to resolve. In fact it's not really clear who if anyone is required to resolve them.

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The park was built originally in a 1968 deal between the builders of the U.S. Steel tower (the building presently called One Liberty) that allowed them to build nine stories higher than zoning laws permitted in exchange for creating a public plaza that would by law be open to the public and subject to various restrictions in its design and operation meant to ensure that the park would be useful to the public.

“These aren’t privately-owned spaces that the developers have in their magnanimity allowed the public to use,” said Gregory Smithsimon, an assistant professor of urban sociology at Brooklyn College and author of The Beach Beneath the Streets: Contesting New York City's Public Spaces. “There’s really an explicit contract between the developer and the public.”

It’s a contract enshrined, in part, in New York City law regulating the existence of “bonus plazas” and other publicly owned private spaces.

When it comes to Zuccotti Park, that agreement is also enshrined in city records dating back to the 1960s, obtained by Smithsimon under a Freedom of Information Law request this week.

And it’s a contract more quietly enshrined in the steel, glass, granite, concrete and flower beds that make up the site: The city traded away rights to a bigger building than it otherwise would have allowed, in exchange for open park space. But with protestors making themselves at home, Brookfield isn’t much liking its end of the bargain.

According to the Department of City Planning documents acquired by Smithsimon, which reach back to 1968, the U.S. Steel tower proposed for the area bounded by Broadway, Church Street, Liberty Street, and Cortlandt Street, would be accompanied by a southerly portion of the site “completely devoted to plaza use.” In exchange for 26,000 feet of park space, the city granted permission to add some 303,000 extra square feet of building space, for a total of 1.8 million square feet. What’s more, the developers would be permitted to use the park in calculating the maximum building size they’d be allowed to erect.

“The floor area will exceed that which would be permitted by right for this block alone,” reads an accompanying report from the City Planning Commission dated March 20, 1968, “but will not exceed the total area permitted for the two blocks as a whole.”

Today, One Liberty Plaza bulges on its block. Google Maps satellite photos today show the resulting hulking building taking up nearly the entirety of its lot. (Take a Google Street View walking tour of One Liberty Plaza and Zuccotti Park.)

The trade-off: what was then Liberty Park Plaza and is now Zuccotti Park.

"The city will gain what amounts to a permanent open park in the heart of one of the most densely built-up areas in the world,” the planning commission report continues. “It is principally because of this public benefit that the Commission has view this application with favor.”

The bonus building space won by the developers in the deal amounts to nine extra floors of commercial real estate in Manhattan’s financial district. Modern-day renters of One Liberty Plaza reportedly include Goldman Sachs, Scotiabank, and the headquarters of NASDAQ. Brookfield spent $8 million to renovate Liberty Park Plaza after Sept. 11, naming it after the chairman of Brookfield Financial Properties, and a former deputy mayor and city planning commission chairman, John Zuccotti.

At what is probably a low-ball estimate of asking rent in the building of $30 a square foot, back-of-the-envelope calculations suggest something in the ballpark of $9 million a year in extra revenue made possible by Zuccotti Park.

"I don't get to begrudge them,” said Smithsimon. “That's the deal. But in return we get a park we can use, not one we can just look at."

PARKS ARE, GENERALLY SPEAKING, WHAT PEOPLE make of them. And at the moment, this one is being used not as a sandwich-eating spot for area workers, a usual use, but as the home base of a protest quickly gathering global attention.

Developers accustomed to an orderly, largely painless park-ownership experience are confronting the messiness and spirited debate that can accompany truly public parks once they come face-to-face with sometimes ornery city dwellers and urban visitors.

That 1968 agreement over the U.S. Steel Building plans amounted to an early exercise of a principle put in place under the landmark New York Zoning Resolution of 1961.

The city had long restricted the heights of buildings. According to city history, the 42-story Equitable Building shocked New Yorkers at its building in 1915 when it “cast a seven-acre shadow over neighboring buildings.”

Hoping to pair urban density with open spaces, in the early '60s the city pioneered the art of incentive zoning—trading one consideration for another—an urban planning practice that has since spread to the rest of the country.

But the tension between the city and developers over the value of these privately owned public spaces has existed since nearly the beginning. The spaces produced under the arrangement have been a mixed bag, according to the city and urban advocates.

According to a 2000 report and database undertaken by the Department of City Planning, the Municipal Art Society and Harvard professor Jerold S. Kayden, the city was, then, home to 500 bonus plazas and similar spaces. More than 40 percent, they concluded, were of marginal utility for the public.

“Only with increasing public awareness, further refinement of design standards, and diligent regulatory review and enforcement,” the Department of City Planning has concluded in presenting the report, “can New Yorkers be assured of high-quality privately owned public spaces.”

"It's basically been an arms race from the beginning," said Smithsimon. "The developers tell the designer to build a space that attracts my tenants, and only my tenants. But once they do, the city outlaws how they did it." 

The city's last major amendment of the city’s privately-owned public space laws happened in 2007, with a tweak in 2009. The wrangling is implicit in the minutiae. The city now prohibits sunken layouts and excessively raised ones, lights that go off less than an hour after dusk, “unappealing sidewalk frontages,” spikes on surfaces that can reasonably be used for resting and uncomfortable seating generally; and requires free-standing signs identifying the owner of the park and much, much more.

Still, the provisions don’t say much about how the parks can, as a practical matter, be used. Securing, cleaning and maintaining the parks are the responsibility of the owner, so it's not clear who is supposed to respond to Brookfield's complaints that it can't maintain the space while the protest continues or how they would respond.

Brookfield, which declined to speak beyond its issued statements, has argued that the park is designed for “passive use,” an expectation violated by the tarps, sleeping bags, and even full-fledged tents the protestors have brought to the space. People have a right to peacefully protest, they assure. But enough is enough.

The company complains that the park is becoming a mess. The power washing, litter collection, and general maintenance that its staff generally does at night has proven impossible with an occupied park.

“Sanitary conditions have risen to an unacceptable level,” said Brookfield in yesterday’s statement.

One place where these privately-owned parks differ from true city parks is that they rarely close at night, for cleaning or otherwise. The default, under city law, is 24-hour operation, and nothing in the papers released by the city indicate that Brookfield has received an exemption from that requirement. (Central Park, by contrast, closes at 1 a.m., reopening five hours later.)

“These are by definition in high-density areas,” said Smithsimon, and the foot traffic is expected to keep them safe. Besides, he said, the city is reluctant to allow corporate owners to equip themselves with gates that can be closed and hours that can be shrunk over time.

That the use of Zuccotti Park is, in some ways, less scripted than can be said for its city park equivalent is, somewhat ironically, a boon to protestors. “Occupy Wall Street” has a cachet that “Spending the day in Wall Street, going home for the night, and coming back fresh in the morning” doesn’t.

“What Brookfield could say to the protestors,” said Smithsimon, “is ‘we’re going to clean one half of the park one day, and the other half the next.’”

But it's certainly not clear what authority Brookfield might have to strike such a bargain with the protesters—or to enforce an agreement without the aid of the Mayor's office or the police department or some other city agency.

At the moment, all sides hint that negotiations are underway over how this might be brought to a close.

“We continue to work with the City of New York to address these conditions,” said Brookfield in yesterday’s statement, “and restore the park to its intended purpose.”

Neither the mayor’s office nor the New York City Policy Department have returned Capital's requests for comment on what that process might look like.

But as for the park's "intended purpose" and any unintended purposes the public might assign to the space on its own, there hasn’t yet really been a legal or political challenge over how free assembly or speech laws are affected by the private ownership of the space. On that topic, wrote William H. Whyte, the famed urbanist, in his 1980 classic, The Social Life of Small Urban Spaces, “a stiff, clarifying test is in order.”

With the Occupy Wall Street protests entering week three, a stiff, clarifying test might be on its way.

“They’re creating a moment,” said Smithsimon of the Occupy Wall Street protestors, “when we’re all forced to realized that these spaces aren’t just for eating lunch.”