When is Public Space Not Public?

clear creek trail 1At the end of our street, where the pavement ends, an orange plastic fence stretched across the trail leading into an undeveloped area. A small sign noted that the trail was closed. Knowing it was just a few hundred yards to the regional bike trail — and following in the footprints of many others — I slipped around the fence and followed the path.

It’s public property, isn’t it? It’s undeveloped, owned by the government and connects with another public trail. It started me thinking, “When is public space not public?”

I volunteer to patrol public paths in county open space parks, and I understand the need for rules and limitations on how the parks are used. There is, however, a difference between having rules to protect use and rules to prevent access. Most public lands, including local parks, have well-established rules and democratically determined restrictions. If you don’t agree with the restrictions, you can appeal to the governing body or go somewhere else. Restrictions on access should be based on defensible arguments and explained when implemented.

In the case of private lands, the land owner determines use — in accordance with local regulations. Thirty years ago, when we were working to establish a historic district in my neighborhood, we interviewed all the residents to get their buy-in. An old guy, who lived in a house fully a hundred years older than him, interrupted my description of what the designation would mean. “It sounds like zoning to me,” he grumbled, “I don’t never want no zoning around here!” Of course, the whole town was already zoned, including his property.

If laws and regulations are artfully created and applied, people who are governed by them may not even notice. In cases where most people don’t know they’re regulated, the rules fit in with the existing culture and life. Most of the time the status quo is acceptable to people; however, many people react negatively to change of any kind.

Some property owners want to maintain public spaces, but restrict public access. Sidewalks or plazas may exist on private land surrounding a building, termed ‘privately owned public space’ or POPS, and the private owners may exclude access. When a developer creates POPS in their developments, it is not always accessible to the public. They sell the plaza as a public attraction, but may fail to make it available to the public. That park or that trail may look deceptively inviting; however, access may not be guaranteed.

“Just because it has benches and fountains doesn’t mean it’s public space.”

~ Bradley L Garrett

There are issues with the use of publicly available spaces in regards to homeless people, panhandling, activism and political demonstrations, and criminal behavior. Marijuana is legal in Colorado, for example, but marijuana use is illegal in public places. The small downtown portion of my town has banned all smoking in public, because the sidewalks were crowded with smokers, making the pedestrian experience unpleasant. Loitering laws have been used to keep homeless people moving around, but I see the same two scruffy guys on their usual perches at the same times of the day.

With more development and redevelopment in our urban areas, particularly if we try for more “New Urbanism” and green spaces, we should be conscious of what we want our open spaces to be. Are they public, POPS or private? Are those trails available for all or just for the locals or residents? Who decides whether it’s available to walkers, bicyclists, skateboarders, equestrians or e-bikes?

Of course, access on some lands can be problematic. The rancher or farmer who wants to limit hunting and hiking on his property certainly has a right to do so. On the other hand, there are trails used historically to cross some lands, the continued use of which can be established as a historic right of way. Again, there are processes that govern these decisions.

Once, backpacking up a hiking trail into the Mount Zirkel Wilderness area, we were denied access across a portion of a rancher’s land. We detoured around his property and reached our targeted lake several hours later than expected. We set up camp and began quietly fishing for dinner, when we heard the grating noise of an ATV grinding up the hill. It wheeled up to the edge of the lake, but when the driver saw us, he quickly spun around and left. Knowing that motorized vehicles weren’t allowed in the wilderness area, we quickly understood that the rancher had cut off the hiker access to make it harder for everyone except him to access the federal land (illegally). On the way out we noticed his signs offering guide services for hunting and fishing.

I am perplexed by states that argue for transferring federal lands into state control. In many places where that has happened, the state has immediately sold or leased the land to private interests. Then the public has lost access rights, and the state does little to ensure environmental protection. Selling land is like the old saying, “eating your seed corn;” once its gone, its gone. They’re just not making any more.

We sometimes forget that in the U.S. the land was taken from its aboriginal owners. With the exception of a few colonies on the east coast, every part of the U.S. was obtained (purchased, stolen or warred over) by the federal government to “benefit the American people”. They then set about defining land ownership and uses for federal, state and local governments and private interests, still to “benefit the American people”. So really, each American has a stake in all the federal lands. Without due process, it is unlawful for a private interest to take away my right to my land regardless of where it is in the country.

Back on the path at the end of my street, I noticed a person coming towards me on the trail. There was no way to avoid him, and I wondered if he’d try to turn me back. I stopped and waved as he approached. He nodded and said in passing, “Nice to see that others are ignoring that stupid sign, too.”

After a while, both the sign and the fence disappeared.

Additional information:

Bradley L Garrett, The Privatisation of Cities’ Public Spaces is Escalating — It is Time to Take a Stand, August 5, 2015, The Guardian

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