103 Iowa L. Rev. 1093 (2018)

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Abstract

Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or “POPOS.” These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This analysis is especially important because in embracing POPOS, cities have made a tradeoff—they allow developers to construct larger buildings in exchange for the provision of this publicly accessible (yet still privately owned) space. Although POPOS are the primary form of new urban public space in many areas, legal scholars have largely ignored them, and many cities have failed to educate the public about their existence. This Article suggests that POPOS regularly fail to achieve the goals of “good” public space, in part because they are often exclusionary; they only feel welcoming to certain people, and they only permit a limited number and type of activities. Thus, this Article provides suggestions for improving POPOS, by changing the laws that govern their design and use, and importing the norms that we typically associate with public space into these privately owned spaces—a process that this Article refers to as “publicization.” In this way, this Article aspires to map a path forward so that POPOS will function as a form of public space worthy of the tradeoff that cities are making.