In light of the Occupy Wall Street movement taking round-the-clock possession of the Brookfield Properties-owned Zuccotti Park in downtown Manhattan, the Real Estate Board of New York (REBNY) is trying to change the rules governing the operation of privately owned public spaces (POPS) to prevent such occurrences from happening in the future. But it looks like in this battle the law might not be on REBNY’s side.

While the debate about the protesters’ right to camp out in the park has been at times framed as a freedom of speech issue, REBNY President Steven Spinola says that as far as his organization is concerned, Occupy Wall Street has as much right to voice its concerns in Zuccotti Park as in any other public space.

Instead, REBNY members are taking issue with whether or not the protesters have the right to camp out in the park 24/7, preventing members of the general public from enjoying what is meant to be a quiet recreation space and potentially causing disturbance to nearby residents.

While the city has pursued the creation of POPS to provide New Yorkers with a bit of greenery and open access space in a high-density environment, the Occupy Wall Street movement has been using Zuccotti Park as a 24/7 stakeout, with hundreds of people sleeping on the property at night. The park’s owner Brookfield Properties has warned that over the past few weeks conditions at the park became unsanitary because it has not been able to clean the property thoroughly.

A spokesperson for Brookfield declined to comment on the matter.

REBNY, however, plans to request that the New York Department of City Planning change POPS’s hours of operation from 24/7 to a more curtailed schedule, with the privately owned spaces closing at midnight or 1:00 a.m., similar to public parks.

“New York has a closing time for all city parks,” Spinola says. “And I think it’s a legitimate question as to why you would not have a similar time frame for closing POPS, especially as they are more and more located in the middle of mixed-use communities that include residential buildings. The question is: if the City has decided that, for security or other reasons, city-owned parks should be closed at midnight or 1:00 a.m., then why would the same argument not work for POPS?”

What POPS Are For

A primer on POPS posted on the New York City Department of City Planning Web site notes that POPS began to be used in the early 1960s as part of the incentive zoning program. In order to provide New Yorkers with a bit of green recreation space amid the city’s sea of concrete and steel, city officials would offer developers greater density and/or fewer restrictions on setbacks and height limits on new projects if the developer agreed to build a public space in or near the property.

In order to qualify the developer for the incentives, POPS have to fulfill a number of requirements, including, among other things, a minimum area of at least 2,000 square feet, visibility from any adjacent street, plenty of comfortable seating and readable signage.

Changes made to rules governing New York City POPS in 2009 also call for bicycle parking and a specific number of tree plantings. The strict requirements are meant to create “unique and exciting outdoor spaces that are truly public,” the Department of City Planning Web site claims.

That has been precisely the subject of contention at Zuccotti Park, since the protesters’ presence on the property prevents other members of the public from enjoying it as recreation space, according to Spinola. To organize a rally involving more than 20 people on any New York street or in a city-owned park would require a permit, he notes.

“City planning rules basically say that the spaces have to be available to everyone and cannot be limited to a particular group,” he says. “There is no provision that a group can take over a public space because it has to be maintained for the general public. People have the right to free speech, but when they are doing it, it has to be done in a way that does not infringe on the rights of others.”

While POPS are most prevalent in New York City, where they encompass more than 3.5 million square feet of space, they also exist in other parts of the country, in high-density urban centers such as Seattle and San Francisco, where incentive zoning is a necessary part of the development process.

Tough luck

Historically New York City officials have been extremely reluctant to change POPS’s hours of operation, notes Stuart Saft, global head of real estate at New York City-based law firm Dewey & LeBoeuf LLP. Dewey & LeBoeuf, for example, has worked with residential property owners for years to get the city to grant them permission to close their POPS earlier to prevent homeless people from living on the plazas. In most cases, the city has denied such requests.

The only instance in which New York officials might be forced to act would be if Occupy Wall Street posed a significant security threat or seriously diminished the quality of life for nearby residents, Saft says. In such cases, the building owner can file an application with the Department of City Planning to establish a closing time for an individual POPS, according to Raju Mann, director of planning with The Municipal Art Society of New York, a non-profit that advocates intelligent urban planning and design.

There are so many different POPS in New York City, however, that it doesn’t make sense to establish a uniform closing time for all of them, Mann says. Some, for example, including Zuccotti Park, serve as circulation corridors, making it easier for pedestrians to move through the city. In those cases, New York public officials would be that much more reluctant to close POPS at night.

“You need to look at these things somewhat carefully to make sure that the purpose of these spaces can still serve,” Mann says.

So far, the argument that the protesters at Zuccotti Park pose a security or quality of life threat hasn’t held enough sway with the city. In addition to legal concerns, as long as the protesters remain inside Zuccotti Park, the chaos they cause is controlled, adds Saft. That would not be the case if they began congregating on streets in the Financial District.

In the end, REBNY might have “a very legitimate point, but knowing the politics of the New York City, it’s unlikely to gain favor,” he says. “The city is generally in mind to expand the rights of the public rather than to restrict it. In the case of these parks, they feel it’s important for them to be open.”

On Oct. 20, Manhattan’s Community Board 1, whose zone encompasses Zuccotti Park, held a meeting to discuss the issue of protesters creating too much noise and sanitation problems in the area. Ultimately, the board’s members voted in favor of Occupy Wall Street members’ right to assembly, but asked that drumming at the park be limited to two-hour afternoon sessions and resolved to find usable bathrooms for the protesters.

The board’s resolution, however, carries no legal weight.