Wednesday, January 11, 2012

Zucotti Park/Liberty Plaza Open Again To the Public After NYCLU Complaint

By Kathleen

Occupy Wall Street protesters returned to Zuccotti Park Tuesday when the barricades were removed

Last night following a letter of complaint delivered to New York Department of Buildings barricades were removed from Zucotti Park by officers of the NYPD and Brookdale security staff and the park/plaza area is once again open to the public.

The letter is very detailed:


January 9, 2012

Commissioner Robert LiMandri
Department of Buildings
280 Broadway, 7th floor
New York, NY 10007
Re: Violations at 1 Liberty Plaza

Dear Commissioner LiMandri:

The New York Civil Liberties Union, the Center for Constitutional Rights, and the National
Lawyers Guild’s New York City chapter write regarding the ongoing violations of city law at 1
Liberty Plaza (165 Broadway), owned and managed by Brookfield Office Properties. Since
November 15, 2011, metal barricades have encircled the perimeter of Liberty Plaza.  In
addition, members of the public are subject to ad hoc, arbitrary and inconsistent rules and
conditions restricting their use of the park.  These practices have substantially modified Liberty
Plaza, making it a wholly inhospitable space for the public.  Putting aside for the moment the
serious constitutional concerns raised by these practices, it is abundantly clear that such
restrictions are in direct conflict with zoning laws, Brookfield’s legal obligations under a 1968
special zoning permit, and longstanding City policy. These restrictions significantly interfere
with the public’s use of Liberty Plaza on an ongoing and daily basis, and should be ended

A. Laws governing Liberty Plaza require unobstructed public access and prior approval of
design modifications.

By the terms of a March 20, 1968 special zoning permit, the owner of 1 Liberty Plaza gained
valuable zoning concessions in exchange for constructing and maintaining what is now Liberty
Plaza as a “permanent open park” for the “public benefit.” 1 Under City zoning laws, Liberty Plaza is defined as a “public plaza,” and one over five hundred privately owned public spaces (“POPS”) in New York City. 2 Under these laws, at least 50% of the sidewalk frontage of a public plaza must be free of obstruction, and circulation paths must connect to each of the street
City of New York Special Zoning Permit, CP-20222, No. 4, p.215 (March 20, 1968).
NYC Zoning Resolution § 12-10.

Page 2 of 4

frontages. 3 In addition, any proposed modifications to public plaza’s design must first go
through an approval process before those changes can be made. 4 Furthermore, an owner’s ability to restrict the public’s use of a public plaza is constrained by zoning laws and by City policy. An owner of a public plaza may not, of course, forbid conduct in public plazas that is otherwise protected by the constitution.  In addition, an owner “shall not prohibit behaviors that are consistent with the normal public use of a public plaza.” 5 Any other restrictions an owner seeks to impose on the public’s ability to use or access a public plaza must be “reasonable,” pursuant to long established City policy. 6 Finally, any prohibition on conduct in a public plaza must be clearly posted in writing.7

B. Blocking Access to Nearly All of Liberty Plaza Violates City Zoning Law and Brookfield’s
Legal Obligations.

For nearly two months public ingress and egress to Liberty Plaza has been blocked by metal
barricades encircling the public plaza. The public is only able to enter and exit Liberty Plaza at
two gaps, and at these points members of the public have been subject to searches of their
personal belongings by security personnel.8

As noted above, to ensure the public’s ability to freely enter and exit public plazas, zoning law
requires that at least 50% of Liberty Park’s frontage be unobstructed, and also mandates
unrestricted access to and from circulation paths. The metal barricades encircling Liberty Plaza
enclose far more than 50% of the frontage and block access to major nearby walkways, in
violation of zoning laws.

In addition, a barricaded encirclement patrolled by security personnel seriously interferes with
the public’s use and enjoyment of Liberty Plaza, in violation of Brookfield’s legal obligation to
maintain the space as a permanent open park.  Any member of the public would be reluctant or
unwilling to enter an area closed in by metal barricades with only two exits. This modification
presents even more serious safety concerns when large numbers of people are attempting to
enter or exit the park through two narrow gaps in the barricades. The barricades have all but
ended Liberty Plaza’s role as a functioning public plaza.

NYC Zoning Resolution §§ 37-721; 37-723; 37-726.
NYC Zoning Resolution §§ 37-62 et. seq; 37-78; 74-91.
NYC Zoning Resolution § 37-752.
The New York City Department of City Planning, Jerold S. Kayden, and the Municipal Art Society of New York,
Privately Owned Public Space: The New York City Experience (John Wiley & Sons, 2000), p.38 (“The Department of
City Planning has taken the position that an owner may prescribe ‘reasonable’ rules of conduct”).
NYC Zoning Resolution § 37-73 et. seq.
Security personnel at Zuccotti Park at various times have included NYPD officers, off-duty NYPD officers employed
by Brookfield, and private security staff employed by Brookfield, who often act in concert with, take direction
from, and rely upon, NYPD officers.

Page 3 of 4

Finally, the barricades constitute a major design modification to Liberty Plaza—and as their
presence at the park approaches two months, a seemingly permanent one—that circumvented
the approval process required before the design of a public plaza can be altered. The
barricades should be removed immediately.

C. Constantly-Changing Unwritten Rules Unreasonably Restrict the Public’s Use of Liberty
Plaza in Violation of City Law.

Brookfield has purported to adopt written “rules of conduct” governing Liberty Plaza.  The
manner in which these rules were adopted raise serious constitutional concerns, as do the rules
themselves.Even assuming these regulations could be validly enforced, however, security
personnel go far beyond these written rules by selectively enforcing ever-shifting and unwritten
ad hoc prohibitions. These unjustifiable restrictions are a serious, ongoing and daily
infringement on use of the public plaza.

At the heart of these restrictions is the assertion of security personnel that certain items are
prohibited in the park. The written “rules of conduct” do not, of course, prohibit any particular
item from entering Liberty Plaza. Instead, consistent with zoning laws, the written rules forbid
only conduct. These rules do not, and could not, entitle security personnel to turn an individual
away from a public plaza simply because he or she has a personal item that security personnel
speculate might be potentially used to engage in prohibited conduct sometime in the future.

Nevertheless, security personnel have declared that certain personal possessions are prohibited
in Liberty Plaza. The unwritten list of prohibited items varies daily and is wildly inconsistent.
Individuals have been refused entry for possessing food, musical instruments, yoga mats,
cardboard signs, shawls, blankets, “prohibited containers,” chairs, bags of varying sizes, and
numerous other personal items. To effectuate the enforcement of the unwritten list of
“prohibited items,” security personnel have stopped individuals attempting to enter Liberty
Plaza and forced them to submit to a search of their personal belongings.  Individuals who
refused to permit their personal belongings to be searched have been prohibited from entering
the public plaza.

Almost all the items that have been prohibited in Liberty Plaza—signs, bags, containers, food,
musical instruments, etc.—have also been allowed to enter the park at other times.  Who is
searched and what is prohibited is arbitrary and inconsistent.  It varies by the day, the type of
activity in the park at the time, the attire of the person attempting to enter, and the caprice of
security personnel.

The inconsistent and selective enforcement of unwritten and constantly changing rules, and
preemptive searches of individuals attempting to enter the park, violates the terms of the
special zoning permit which obligates Brookfield to maintain Liberty Plaza as a permanent open
park for the public benefit. These practices also violate zoning laws by prohibiting behavior that

In addition, as written and posted by Brookfield, the rules appear to violate City zoning laws governing the
manner and form for “prohibition signs”. See N.Y. Zoning Resolution §§ 37-747; 37-751; 37-752.

Page 4 of 4

is normally permitted in public plazas. Finally, selectively enforcing unwritten rules is patently
unreasonable, and therefore violates longstanding New York City policy constraining the type of
regulations on conduct an owner may adopt in a public plaza.


Metal barricades, preemptive searches, and selectively enforcing ever-changing unwritten rules
have become established features of Liberty Plaza.  These practices infringe on clearly
established constitutional rights, and they also violate zoning laws, Brookfield’s legal obligations
under the 1968 special zoning permit, and City policy. As the Mayor has noted with regard to
Liberty Plaza, “we must never be afraid to insist on compliance with our laws.”10 These
practices violate city law and should be ended immediately, restoring Liberty Plaza to its place
as a permanent open park that is open and accessible to all members of the public on an equal

We request a prompt final determination from the Department of Buildings 11 and/or any other
appropriate New York City agency, in writing, with regard to this complaint.


Taylor Pendergrass
Senior Staff Attorney
New York Civil Liberties Union

Baher Amzy
Legal Director
Center for Constitutional Rights

Gideon Orion Oliver
National Lawyers Guild, New York City Chapter

Statement of Mayor Michael R. Bloomberg on Clearing and Re-Opening of Zuccotti Park (Nov. 15, 2011).
NYC Charter § 643 (Department of Buildings “shall administer and enforce” zoning laws); NYC Zoning Resolution
§ 71-00 (same); NYC Zoning Resolution § 37-78(d) (an owners’ failure to comply with requirements applicable to
public plazas “shall constitute a violation” of zoning laws and Department of Buildings may enforce the violation by
revocation of building permit, revocation of certificate of occupancy, or any “other applicable remedies”).


The letter makes it clear that the park is one of several hundred "bonus parks" created in a compromise deal between developers and the city council. The parks were created as a place of respite for city pedestrians. The more plaza/park place provided the higher the skyscraper could rise.

By allowing the barricades to remain in place the letter points out that the city was effectively breaking its own laws.

According to CBCNews a representative from the NYPD insists that they have been talking with Brookfield Office Properties since last week about taking down the barriers. It would seem that the letter from the NYCLU had the desired effect which pushed Brookfield and the NYPD in the right direction, although it is unlikely that tents will be seen in Zuccotti Park again.

Recent photo of Occupy Frankfurt taken in January which occupies a public park with permission from the city.They are camped outside the European Bank Headquarters.Photo curtesy of Frankfurt Occupy Facebook.

Tim Pool, who now has his own ustream channel, reported that it is the first time in months that he has seen the Park completely open. He remained filming and reporting for several hours and his coverage is in marked contrast to the mainstream media reports which all seem to echo the same refrain "They're back". Of course anyone following the Occupy Movement knows that "they" never went away and have continued their protests despite lack of mainstream coverage.

The Occupy Movement is not going any where any time soon.

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