Judge Refuses to Extend Temporary Restraining Order at Zuccotti Park

New York State Supreme Court Judge Michael D. Stallman has refused to extend a Temporary Restraining Order blocking New York City's eviction of Occupy Wall Street protesters from Zucotti Park in Lower Manhattan. In doing so the judge essentially ruled that the  new rules imposed after the arrival of Occupy Wall Street by the parks owners, Brookfield Properties, are "reasonable time, place, and manner restrictions permitted under the First Amendment."

In his decision, Judge Stallman stated: "To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner's rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus."

See the full text  of the decision here.

 

Update on the Public Space Issues for Occupy Wall Street: Liberty Square

Liberty Square / Zuccotti Park on the morning of Thursday, September 29, 2011. Lunching office workers in the foreground, Occupy Wall Street protesters in the center of the park.

I spoke today with Professor Jerold S. Kayden, Harvard Professor and author of the book “Privately Owned Public Space: The New York City Experience.” Professor Kayden graciously led me through the sometimes arcane business of New York City’s incentive zoning rules and regulations. Here’s what I found out from our conversation and from Professor Kayden’s book.

Zuccotti Park, known as Liberty Square by the Occupy Wall Street protesters, is considered a “special permit plaza.” Technically speaking, unlike previously reported, it’s probably not a “bonus” plaza, where the original developers secured extra floor space at One Liberty Plaza, the fifty four floor skyscraper just to the north of the park. Bonus office space at that building likely was allowed by the creation of the public space around the building itself. Instead the special permit plaza likely came into being in exchange for other zoning concessions authorized by the Department of City Planning.

Regardless, according to Kayden, the park’s owner Brookfield Office Properties likely agreed to provide a “physical place located on private property to which the owner has granted legally binding rights of access and use to members of the public, most often in return for something of value from the city” (Kayden, Privately Owned Public Space, p.21), that “value” in this case being a zoning concession.

So can Brookfield ask the protesters to leave?

No and Yes.

“The Zoning Resolution requires privately owned public spaces to host ‘public use,’ but never expressly defines limits, if any, an owner may impose upon such public use. The Department of City Planning has taken the position that an owner may prescribe ‘reasonable’ rules of conduct. In determining the definition of reasonable, the Department has looked to the rules of conduct applicable in City-owned parks for general guidance.” (Kayden, POPS, p.38.) Note that these are very similar to the kind of “time, place and manner” restrictions that the city is using against artists working in public parks and that are at the heart of artists’ current lawsuit against the Parks Department in the Lederman federal case.

Professor Kayden believes that creating a rule of conduct that says “no political protests” is unlikely to be considered “reasonable” under these terms, but that this is not a First Amendment issue. The park is still privately owned and says Kayden, “in all likelihood, it would be an uphill climb to maintain that Brookfield Office Properties is a governmental actor subject to the full provisions of the First Amendment.” (See American Manufacturers Mutual Insurance Company v. Delores Scott Sullivan, 526 U.S. 40 (1999) for a court ruling on standards for what constitutes “state action” by a private owner.)

However, while Brookfield likely can’t ask Occupy New York to leave Zuccotti Park because they are using the park for a political protest, they may be able to ask them to leave for other reasons. For example, if the park becomes unusable by anyone other than protestors, they could essentially be asked to leave so that others could use the park. Or, if they were creating too much noise, sleeping in the park, or acting in other manners that might block the use of the park by other park goers or community members, these might indeed constitute violations of reasonable rules.

Finally, according to Professor Kayden there is little case law established on what constitutes “reasonable” rules when applied to privately owned public spaces, and certainly none about political protesters using those spaces, so there are no clear guidelines about how a court might rule if action was taken by the park’s owners.

In the end, the situation at Liberty Square may be shaped more by public relation issues than by the legal issues. Neither Brookfield Office Properties, the owners of the public space known as Zuccotti Park, nor the New York Police Department are likely to want to be perceived as initiating a crackdown against protesters that would be watched around the world and could potentially spark even larger protests.

Peter Walsh

Privately Owned Public Space? “Occupy Wall Street” Real Estate Questions

Rainy Morning at Liberty Square: Occupy Wall Street HQ

For almost two weeks hundreds of protesters calling themselves “Occupy Wall Street” have been camped out in an open air plaza located between Wall Street and the World Trade Center site in lower Manhattan. The protesters have set up information tables, a library, a General Assembly area, a kitchen, a media center and a space for protest sign making. Known as Liberty Square by the protestors and named Zuccotti Park by Brookfield Office Properties after its chairman John C. Zuccotti, the plaza is a “POPS”: a privately owned public space.

What’s a POPS and what does this mean for the protesters?

In the case of Liberty Square, Brookfield Office Properties owns the land and maintains the park, but the plaza is considered open to the public. The go-to reference here is the book “Privately Owned Public Space: The New York City Experience”, by Harvard professor Jerold S. Kayden, which was published by the New York City Department of City Planning and the Municipal Art Society of New York in 2000. The Department of City Planning website also has some helpful background information. There are currently over 500 POPS in the city and they all are outgrowths of the 1961 Zoning Resolution (and various later amendments). The goal of that resolution was to allow real estate developers to build bigger than normally allowed by city zoning regulations (including, according to the DCP, “relief from certain height and setback restrictions”) and in exchange the developers have been contractually required to provide new publically accessible spaces.

Practically speaking, in 1968 Brookfield Office Properties essentially “bought” the right to build an additional 500,000 square feet of office space at its 54 story building One Liberty Plaza, just to the north of the park, in exchange for agreeing to build and maintain a public space. For some more on this deal see this recent New York Times article.

So what laws shape the use of Liberty Square/Zuccotti Park?

According to Professor Kayden’s book, when a POPS deal goes down, the developers agree to provide legally binding rights of access to members of the public in exchange for the value they get from the relaxation of specific zoning regulations. Can Brookfield Office Properties tell the protesters to get out? It all depends on what is in the various legal documents they signed with the city.

Calls are in to the NYC Department of City Planning and also to Professor Kayden and we hope to have more detailed information soon.

Special thanks to Geoffrey Croft of NYC Park Advocates for the tip on Professor Kayden's book.

Session Nine: Gao Min and Peter Walsh

Gao Min and Peter Walsh on Wien Walk in Central Park, September 3, 2011. Photo by Wei Chen

Shaded by the cool oak canopy of Central Park’s Wein Walk, artists Gao Min and Peter Walsh finished their exchange of drawings this morning – number fifteen in the ongoing series of portrait exchanges in the Central Park Portrait Exchange. The session had been interrupted three weeks earlier when a brisk trade of art patrons prevented Walsh from beginning his drawing. Gao had a line of customers!

Sitting for his portrait this morning Gao laughed, “It’s been a long time since I’ve sat for someone else. It’s hard! When I was a student at art school in China we would sit for each other, but it’s been years.” Gao is a former art professor and former director of the Division of Western Arts in the Department of Fine Arts at Southwest-China University, a large school located in Chongqing, China. Among his many achievements is his college level instructional art book “Color,” which has gone through 13 editions in China.

“I’ve been drawing in Central Park for sixteen years,” he says, “though mainly now I come on weekends. Aside from the extra money, I come because of the faces. So many faces to draw!” During the week Gao works in a commercial art studio. Trained in the realist drawing tradition (both Chinese and Western), Gao also paints at home and is experimenting with new works that he has yet to release to the public. To see older works, go to his website here.

Some thoughts from Peter Walsh:

“Ouch. I try not to see the Central Park Portrait Exchange as a competitive form, but when my work is placed next to someone as talented as Gao Min, it’s hard not to feel the pain!

I was excited to complete this exchange because I had first met Min in New York State court in September of 2010 when we both testified against the New York City Parks Department by authenticating our videos of artists being abused by new park rules that forced them to sprint into Central Park at 6am every morning. Click here and here for details. Min’s disturbing video was appropriately called “Artist or Race Cow?”; mine was “NYC Mayor Bloomberg Forces Artists to Run for their Livelihoods.”

That said, although my rough drawing of Min pales next to his elegant one of me, I did capture some part of a likeness of him. “It’s fine,” says Min, “you’re good enough to work here in the park if you wanted to. People will pay.”

I’ll take that as a thumbs up! Thanks, Min.

Whose Park Is It? Artist Lederman Arrested Protesting at Panel Discussion

Robert Lederman Protesting at Panel Discussion held at the Museum of the City of New York. Photo courtesy of "A Walk in the Park".

Carrying a hand-painted sign that said “PARK PRIVATIZATION IS A REAL ESTATE SCAM - IT IS ALL ABOUT RAISING PROPERTY VALUES FOR THE MAYOR’S WEALTIEST FRIENDS,” artist Robert Lederman was arrested recently while protesting at a Parks panel discussion that featured New York City Parks Commissioner Adrian Benepe and other supporters of the unelected “public/private partnerships” that increasingly control the administration of New York City’s parks.

Lederman is the president of the street artists organization A.R.T.I.S.T and is currently suing the Parks Department in Federal Court over new rules that restrict artists’ right to work in city parks.

Here’s the news coverage, including video of Lederman’s arrest.

Videos of the protest and arrest:
http://www.youtube.com/watch?v=dAWooZKyDy0
http://www.youtube.com/watch?v=MNFWHAc_-XQ

“Night Of Protests At Museum Park Funding Forum”
A Walk in the Park, by Geoffrey Croft, August 13, 2011

“Which Park Is It, Anyway?”
ParkSlopePatch, by Johanna Clearfield, August 12, 2011

“Is the revenue-generating park a good thing? Commissioner Benepe says it ‘depends on who’s in charge’”
Capital New York, by Dan Rosenblum, August 11, 2011

“Activist is arrested at a panel about private funding for parks”
The Villager, by Albert Amateau, August 11, 2011

Session Eight: Amon Azizov and Peter Walsh

Amon Azizov on Wien Walk in Central Park. Photo Peter Walsh

As he waits patiently for his customers in Central Park under Wien Walk's majestic oaks and plane trees - the mothers from New Jersey and Upstate New York bringing their tween children, the middle-aged tourists from Ohio, the young lovers from the Bronx - artist Amon Azizov feeds the squirrels peanuts from a bag.

Dressed in a denim jacket with the collar turned up against the sun and a cap riding low on his head, Mr. Azizov is prepared for a long day drawing in the open air. Every item in his kit, from the lightweight painting easel, to his worn brushes which sport just the right spring in the bristles, to the Velcro he uses to quickly transform his sample portraits of figures like Nelson Mandela into a workstation, suggests a man committed to using the fewest materials to achieve the highest ends. He has the aura of a sea captain or a mountain climber.

Originally from Tashkent, Uzbekistan, where he trained as an artist and was a member of the Soviet Union Artists Union, Mr. Azizov uses the “brush technique” like his fellow former soviet Artashes Karslian working just a few yards down the path on Wien Walk. “I’ve been working here in Central Park for about seven year now,” he says. Mr. Azizov and Peter Walsh exchanged portraits on Saturday morning, August 8th, 2011.

Amon Azizov and Peter Walsh exchange portraits.

Some comments from Peter Walsh:

“Amon and I were introduced by Artashes, who explained the portrait exchange to him in Russian. But I found his English to be quite good. He asked that I draw first and he second. My own drawing went quickly and I was able to catch a good likeness but make a rather bad drawing. I fell to some of the most basic errors of portraiture: I had trouble setting the eyes and I cropped the back of Amon’s head where I should have given it room. Being an amateur, I was rusty.

Amon took a bit longer to do his portrait of me, which is quite good and has the clean, airbrushed finish that the brush technique produces. First he laid in the over-all structure of my head and then he methodically dropped in each of the parts: my mouth and nose, then my right eye, then my left, then my left ear, then my shirt.

When he’s not doing portraits, Amon is a sculptor. “I’ve developed my own technique that relies on sheet metal. No clay or other sculpting materials,” he says. “For example, about two years ago a completed a 16-foot tall giraffe.”

I was pleased to learn that we live fairly close to each other in Brooklyn, Amon at the Newkirk stop on the Q train and me at the Church Avenue stop on the F. Not so surprising I suppose as the neighborhoods have many Russian speakers and communities from across the former Soviet territories. Between us lie several great Central Asian restaurants on Ditmas Avenue such as Restaurant Afsona (Uzbeki) and Café Sim-Sim (Azerbaijani).

The drawings will be posted soon.

NOTE: I also began an exchange with Min Gao, a very talented Chinese artist who also shot some important video footage that has been used in court to defend artists working in New York City’s parks. But business picked up quickly and customers were waiting so I wasn’t able to do my portrait of Gao. We’ll complete the exchange soon.

Finally! A Video Post for the Central Park Portrait Exchange

Finally! Over a year into the portrait exchange and I've finally produced a video post for the blog.

What took so long? Too many stories to tell!

I've been struggling to sort out what needed to be said and to figure out how to keep a clean narrative that can convey the rich complexity of all that has been going on. There's the story of the portrait exchange itself. There's the story of the ongoing legal battle of artists versus the city and the Parks Department. There are the stories of each artist working in the park and my story as the organizer too. There are stories about drawing and the different portrait techniques being used. There's the story about where each artist came from and how they trained. And more.

In the end, I decided to start with the story I began with when I originally imagined the portrait exchange. What makes art valuable? What happens when two artists meet and engage each other in a reciprocal artistic exchange using the same materials at the same time and place under the same conditions? It's both a competitive and a collaborative situation. What will these portraits look like together as more and more exchanges are completed?

Here is the first of what I hope will be several videos.



My thanks go out to all the artists who have participated so far (and to those who will participate in the future too!). Also special thanks to Kathy Brew and Roberto Guerra for their impressive video footage, to Louise Ma for her cheerful willingness to lend a hand and to help with Mandarin translation on the spot in the park, to all the photographers who have helped so far including Alex Ramirez-Mallis and to all my friends and allies who helped vet the video before I set it loose in the world, including Christopher Quirk, Hope Ginsburg, Deidre Hoguet and Emily Walsh.

Peter Walsh