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An Important CG Paper

  • Subject: [cg] An Important CG Paper
  • From: adam36055@aol.com
  • Date: Fri, 03 Jun 2005 14:46:42 -0400

GeoJournal 58: 197-205, 2002.
) 2003 Kluwer Academic Publishers. Printed in the Netherlands.
Conflicting rights to the city in New York's community gardens
Lynn A. Staeheli1,?, Don Mitchell2 and Kristina Gibson3
1Program on Political and Economic Change, Institute of Behavioral Science,
University of Colorado, Boulder,
CO 80309-0487, U.S.A. (E-mail:Lynner@spot.colorado.edu)
2Department of Geography, Syracuse University, Syracuse, NY 13244, U.S.A.
3Program on Political and Economic Change, Institute of Behavioral Science,
University of Colorado, Boulder,
CO 80309-0487, U.S.A. (E-mail: Kristina.gibson@colorado.edu)
Key words: community gardens, property rights, public space, rights claims
In the mid-1990s, New York City initiated what would prove to be a long,
highly visible struggle involving rights claims
related to property, housing, and public space in the form of community
gardens. The competing discourses of rights were
part of a struggle over the kind of city that New York was to become, and more
specifically, whether it would be one in
which difference is accepted and in which access to the city and the public
realm would be guaranteed. Using interviews
with participants in the conflict over community gardens, we evaluate how the
resolution to the gardens crisis, which in part
occurred through the privatization of what are often taken to be public or
community rights to land, transform not only the
legal status of the gardens but also, potentially, their role as places where
different 'publics' can both exercise their right to
the city and solidify that right in the landscape.
In the mid-1990s, New York City initiated what would prove
to be a long, highly visible struggle against giant butterflies,
frogs, flowers, and fairies. The struggle was waged in lowincome
neighborhoods throughout the city, but was perhaps
most visible in the Lower East Side. What was at stake in this
conflict? The answer depends upon with whom you speak.
Representatives of the Mayor's Office under the administration
of Rudolph Giuliani and of the Department of Housing
Preservation and Development (HPD) said it was about
the need to provide housing in a city with high rents and
a shortage of affordable housing. The butterflies, flowers,
and fairies (or the people wearing the giant costumes) said
it was about the need to preserve community gardens in
neighborhoods without other open space, about the need to
encourage community building within marginalized neighborhoods,
and about the ways community gardens in New
York function as a public space in which poor and racialized
communities mobilize for empowerment. The conflict over
community gardens was thus framed as a conflict between
two sets of rights: the right to property (and the basis of
property ownership) and the right to spaces for the public
and community.
The community gardens of New York are located on
plots of land that are owned by the City1, which granted
gardeners permission to use the land until the City found
other uses for it. The City provides some support for the
?Corresponding author
gardens through the Green Thumb program, which offers
advice, soil, materials, and seeds for the gardeners; Green
Thumb is also responsible for ensuring that rules related to
public access and maintenance are enforced. The gardens
typically invoke the idea of a refuge or oasis of green in parts
of the city with few parks and open spaces; they are given
names such as 'The Creative Little Garden,' 'The Garden of
Happiness,' or 'Green Oasis.' The actual gardens are quite
varied. Some are carefully planned, horticultural gardens
with a unified landscape theme. Some have individual plots
in which gardeners can do as they wish - whether growing
flowers and shrubs or food or even building sculptures. The
gardens typically provide spaces for meditation, community
events, and educational programs. Some gardens have a
small casita on them; a common complaint about these casita
gardens is that they are the domain of a single family or small
clique of residents. Some gardens fall into disrepair as the
founders lose energy, move away, or age.
The gardeners themselves are as varied as the gardens.
In some areas, they are a racially and economically mixed
group of people who have come together to make a community
space, but in other areas, the gardening groups are
more homogenous in racial and economic terms. To some
extent, the gardeners reflect the neighborhoods in which they
live. In general, the gardens represent an effort on the part of
neighborhood residents to make and to claim a part of the
city that suits their needs. They have been important sites in
which a community - a public - has been formed.
It is the latter characteristic of gardens and gardeners that
seems to be at the crux of the conflict. Competing discourses
of rights were part of a struggle over the kind of city that
New York was to become, and more specifically, whether it
would be one in which difference is accepted and in which
access to the city and the public realm would be guaranteed.
As we argue in this paper, the struggle over the community
gardens is a continuing struggle over the right to the city
(Lefebvre, 1996; McCann, this volume), and one in which
the outcome of one stage of the struggle sets the ground for
the next. As we argue in the conclusion of the paper, the
question of who is able to make claims to the city - to claim
a right to the city - remains unresolved. This ambiguity is,
perhaps, one consequence of rights claims that are based on
normative arguments rather than on more firmly entrenched
legal claims.
The paper is organized in threemain sections. In the first,
we present a brief history of the community gardens in New
York as narrated by participants in the conflict. These narratives
primarily come from interviews we conducted with
31 participants over several months in 2001 and 2002. The
respondents are from the gardening community and from
various government agencies2. These interviews are supplemented
with news reports and published articles on the
gardens. In the second section of the paper, we demonstrate
the role that rights - or more accurately rights-claims - play
in framing the debate over the gardens; this framing seems to
define the issue as being about two competing and exclusive
sets of rights, with the implication that one side or the other
would necessarily 'win.' In the final section, we evaluate
how the resolution to the gardens crisis, which in part occurred
through the privatization of what are often taken to
be public or community rights to land, transforms not only
the legal status of the gardens but also, potentially, their role
as places where different 'publics' can both exercise their
right to the city and solidify that right in the landscape.
Contested narratives of New York's community gardens
The history of the gardens has been told elsewhere (e.g.,
Gibson, 2002; Schmelzkopf, 1995; Schmelzkopf, 2002;
Wilson and Weinberg, 1999), so here we focus on this history
as narrated by the gardeners and other participants in
the struggle over the gardens. Our purpose is to demonstrate
the ways in which these histories frame the debate over the
gardens and the rights over which the struggle was waged.
Most participants root their histories in the fiscal crisis
that wracked New York in the 1970s. During that period,
thousands of housing units scattered throughout the city
were abandoned by their owners (although not necessarily
by the tenants who lived in them), who let the buildings fall
into disrepair. Many of the future sites of gardens fell into
tax arrears, and the City claimed the property. But saying
that the City took over the property did not mean that it
maintained the housing or kept it available for housing. The
units were often abandoned as housing and frequently were
destroyed through decay, demolition, and arson.
This period in the 1970s represents a key moment for
the gardens, as most of our respondents mention it as being
the period in which the spaces were created for what
would become gardens. In the process, thousands of vacant
lots (11,000 being the most commonly cited number) were
transferred from private ownership to public ownership. In
that move, the City claimed the property, but made no claim
to either the right to housing or the right to public space for
city residents. The fiscal crisis led the City to the verge of
bankruptcy, and its concern was for providing 'basic services'
such as police, fire, and sanitation; housing was seen
as neither a basic service nor a basic right. Instead, the lots
were placed under the control of the Department of General
Services, where they languished. As buildings deteriorated
and collapsed, there was no money to clear the lots, and in a
depressed market, only a handful of buyers for the lots were
identified by the real estate agency within the department.
It is at this point that the narratives provided by representatives
of the City diverge from those of greening advocates -
of the gardeners, community activists, and people involved
in supporting the gardens through various public and private
entities. Both sides agree that the gardens were built on land
owned by the City, often without permission. Both also agree
that the gardens have been crucial in creating green space
in neighborhoods, sometimes stemming decline, providing a
safe space for young children, and serving as focal points for
community revitalization (as well as sources of fresh food
and flowers). Recognizing this, the City began to legitimize
- and legally recognize - the gardens through the creation
in 1978 of the Green Thumb program, which offered leases
and resources to many of the gardens. But a representative
of a city housing agency clearly stated the City's position
that the gardens constitute an interim use of land that should
ultimately be used for housing - one of the most pressing
needs in the city. She argued:
"Most of the community garden sites were at one point
in time housing sites . . .. I definitely use the word 'Cityowned'
when I think about them. I definitely think of
them as 'City-owned, designated for housing." (Interview,
27 April, 2001).
And almost everyone agrees that housing is desperately
needed in the city. The questions - and the points of contention
- revolve around the kind of housing that is needed
and how the need for housing should be addressed. HPD
claimed that the Giuliani administration had built or rehabilitated
approximately 68,500 units of housing city-wide, with
most of the housing intended for low and moderate income
families; additional housing was built for special needs populations
such as people with HIV/AIDS or with disabilities.
A representative of the City argued that as the City has tried
to build housing, only a small number of gardens have been
"So what has happened over time is we've built on all
the other available City-owned land first. You always
take the path of least resistance and build on the places
with the least encumbrances first, so now we're getting
to the point where there are very few clusters of Cityowned
vacant land that don't include a garden. We build
in clusters. We do that, not only for economies of scale,
but in order to truly redevelop a community. We need to
do more than one building. If we put up an odd house in
a sea of a distressed community, that house is not going
to stay nice for a particularly long time. So we build
in clusters and try to do a block at a time or scattered
sites in a concise geographic area at a time" (Interview,
27 April, 2001).
HPD has exerted considerable effort trying to get that message
across, including a large display in the lobby of their
building (Figure 1). Their message is that the gardens were
always an interim use for City-owned land, and that the land
itself was always to be held until such a time that the greater
public good could be addressed through the provision of
housing. People who tried to halt the sale of property to
developerswere presented as holding the residents of the city
hostage and as blocking their rights to adequate housing.
The issue of the 'public' and 'public good' was critical
in the City's framing of the issue. The City was at pains to
counteract the image of the gardens as a public, community
space by reminding people that not all of the gardens (or in
their terms, that only a few of the gardens)were really public
"The best of the community gardens are truly accessible
to the community. The worst of the gardens are weeds. In
some cases, chicken and rooster coops are locked up in
the purview of the few, and the vast majority of the time
they're locked, and the vast majority of the public does
not have a key to the garden . . .. [E]ach garden group
signed an agreement saying this is an interim land use,
that there will come a point in time when the City will
develop this land and, in the interim, you are welcome to
garden there" (Interview, 27 April 2001).
By contrast, this official argued that the need for housingwas
overwhelming. She noted that in one offering of 96 units
in the East Village, over 6,000 people from the neighborhood
applied for the units. And, following the old Housing
and Urban Development Real Estate model, she argued that
even though not all of the housing was affordable for lowand
middle-income households, the new units constructed
provided a housing ladder whereby upper-income residents
of the neighborhood vacated units that then became affordable
to middle-income residents, which in turn opened units
for lower-income households. And while saying that she
wished the argument were not framed in 'either/or' terms,
she argued that housing was the most pressing need amongst
the public. More than a need, it was the responsibility of the
City to provide it. In making this argument - which was the
argument presented by HPD and the Giuliani administration
- the City reversed its position dating back to the 1970s and
publicly promoted the idea of housing as a basic right for
residents of the City3. But for whom did these rights seem
to apply? The housing built on City-owned sites, including
some former gardens, has been overwhelmingly marketrate,
with only 20 percent of the units being designated for
moderate-income households. The units are to be owneroccupied,
and households must have an income between
$32,000 and $70,950 to be eligible to buy into the 'American
Figure 2. Rights of Spring Parade
dream' and thereby be 'saved' from the problems associated
with inadequate shelter (Interview, 27 April, 2001).
More than just the household would be saved; however,
as the City expected that the new owners would also save
their neighborhoods and access to the city for those who
could afford to live there. As a representative of a housing
agency claimed,
'Homeowners in a distressed neighborhood, in good
times and bad, will rally for sanitation, they'll rally for
schools, and they'll rally for crime reduction. They'll
rally for housing needs in ways that renters, who are
not necessarily invested in their neighborhood,won't do'
(Interview, 27 April, 2001).
While some gardeners supported this idea in principal (Interview,
19 December, 2001), they noted that the City's
invocation of claims about housing rights and the improvement
of neighborhoods appeared to be strategic, rather than
sincere. When the Giuliani administration first sold a block
of 113 gardens, for example, there were no restrictions on
the uses for the lots, and the property rights of the City
and the new owners appeared to trump housing rights. The
gardening community mobilized in response - the butter-
flies, frogs, flowers and fairies, along with neighborhood
residents, artists, and activists of numerous stripes, emerged
from the gardens and took to the streets - gaining a great deal
of favorable publicity (Figure 2). Accordingly, the second
proposed sale of over 400 gardens included stipulations that
at least some of the land needed to be dedicated to 'civic
functions' such as affordable housing or economic development.
According to one of the lawyers involved in the
litigation, the City did this to dampen the public outcry
against the auction of the gardens and to remove the basis for
further legal action based on civil rights claims that the gardens
were disproportionately in neighborhoods with large
minority populations (Interview, 24 April, 2001). So while
the City recognized the importance of civic functions, the
right to housing was not publicly recognized nor was it stipulated
in the restrictions on how the land was to be used; and
Figure 1. Display in the lobby of Housing Preservation and Development
the question of who constituted the 'civic' or the 'public'
was not addressed.
By contrast, the constitution of the civic and the public
was key to the narratives of the greening advocates;
they tell a somewhat different story - or perhaps stories, as
they do not speak with one voice - from that of the City.
While acknowledging the need for housing - a need that
many gardeners experience personally - the gardeners and
greening advocates disputed both the motives of the Giuliani
administration and the City's property rights. In so doing,
they advanced a different conceptualization rights that included
the right to public space; these were rights that were
not held exclusively or by individuals and therefore were the
basis for forming a broader public than that which would
be located in individual housing units. This difference was
central to the ways in which the greening community waged
their struggle.
The greening community largely dismissed the argument
that the sale of the gardens was intended to address the need
for housing for the public; rather, they argued that the public
the Giuliani administration was interested in cultivating was
that of the white middle class, real estate and development
interests, and potential donors. One activist in the environmental
justice movement argued that the sale of garden plots
was linked to campaign contributions:
"If you look at a map of where [Giuliani] got contributions
from, there's a very direct relationship I feel
between who ultimately was getting the bids [and bought
the land occupied by gardens. Who controls land use
issues in the city drives what happens to the land, and
how big the buildings are, and what gets bulldozed. And
those are indeed the same people that funded Mayor Giuliani
and a number of prominent politicians in the city"
(Interview, 25 April, 2001).
Other respondents echoed the feeling that the public Giuliani
was interested in promoting was that of the middle class
and that the administration was concerned the gardens were
proving too effective as sites of community building. One
gardener, for example, explained:
"Well, don't ask me what's in Mayor Giuliani's head,
but I think personally it has to be some sort of payback
that he gave to the developers that contributed to his
political war chest. All of a sudden, he said, 'Well, hum,
these community gardens, they look so nice. Let's see if
I can get my developers to come in and start doing some
development."' (Interview, 26 April, 2001).
One respondentwho worked for a City Council memberwho
did not support the sale of the gardens was more direct, saying
that Giuliani was threatened by the gardens as sites of
mobilization and empowerment for people opposed to his
policies (Interview, 25 April, 2001). And another argued
that the issue of the gardens could not be understood outside
the context of race relations within the city (Interview,
25 April, 2001). Ironically, however, this strategy of the
Giuliani administration may have backfired, as one of the
gardeners noted 'the cork is out of the bottle now.' Whereas
before the gardeners worked individually,
". . .we have now become a cohesive force throughout
the five boroughs. We're networking. There are people,
young kids, who through nothing more than gardening,
are now becoming community activists, are standing up
for a right. Because of the fact that if it's a community
garden today, it's your apartment tomorrow. It's your
school the next day. So it all interrelates. And as a community,
you must take a stand. You must take a stand
for the control of how your community is run. And that's
the most important thing that I think we're learning from
the work that we're doing on community gardens. And
we're trying to let people in New York City know about
that. It's not that community gardens are 'anti' anything.
We're community workers. We're just trying to make the
city and our community a little bit better" (Interview,
26 April, 2001).
The sentiment that the 'cork was out of the bottle' was
repeated over and over by our respondents. There was a
sense that the threat to the gardenswas really a threat to communities
and to the ability of the gardeners to claim a space
for the operations of a public sphere in a Habermasian sense,
or as two of the gardeners put it, 'a space of democracy,
with a little "d"' (Interviews, 26 April, 2001 and 19 December,
2001). These were places where the gardeners argued
that people could work together - even while recognizing
and valuing differences in status, class, age, gender, immigration
status, and race - in the pursuit of building community
and developing a voice to be heard in the city as a whole.
Equally, there was a sense that people were waking up to
the scope of this threat; the cork was out of the bottle in
the sense that the Giuliani administration was not going to
be able to confine the conflict to issues of housing or to use
housing as a means to demonize (and marginalize) gardening
advocates and their claims to the city. What was critical to
the rights claims of the gardening community was that these
are spaces the residents of marginalized and abandoned areas
made, and people across New York were beginning to realize
how important they had been to the survival of the city in the
wake of the fiscal crisis of the 1970s. The common refrain is
that these are spaces owned by the City, but spaces that were
overlooked - at least until the gardeners made them spaces
for community mobilization. In Lefebvre's (1991) terms, the
gardens were spaces ignored by both capital and the state,
and as such, they were spaces of relative freedom in which
gardeners and their communities could mobilize. When the
communities became visible to the City - when they gained a
visibility and a degree of legitimacy - the gardeners believed
that the City attempted to assert property rights in order to
literally snatch the ground from under the feet (and the roots)
of the communities. As residents of the neighborhoods and
as people who had devoted countless hours to transforming
the lots from junk piles and blights into spaces for the community,
the gardeners argued they had a right to the city they
had made.
Significantly, it was precisely because the gardens were
successful in mobilizing and in working outside a legal
framework - through protests, parades, community festivals,
and agitation at city council meetings, property auctions, and
even mayoral press conferences - that their lawsuit against
the City was taken up by various legal defense groups. One
of the lawyers who worked on the lawsuit challenging the
City's attempt to auction a large group of gardens put it this
"The genius of community gardens was that they were
sort of grassroots, indigenous, native, whatever you want
to call it, institutions within a neighborhood putting public
space to use for that community. A natural outgrowth
of empty space sitting there, and the community deciding
to put it to use. Here you had the extra element of a community
or members of it deciding to create it, in essence.
And so not only do people benefit by whatever public use
comes out of these public spaces, but also the engenderment
of a sense of community created by people working
together to create community gardens. . . Civil rights litigation
has evolved where the days of thinking we are
going to get great new advances in judicial decisions
in civil rights has come and gone, because the courts
have become much more conservative. In contrast to say
the '60's, where you might get courts in an aggressive
way or affirmative way helping in these issues, that's
less true today. That's why we think the idea of working
with communities and not being totally dependent on the
success of litigation, and yet where litigation will play a
beneficial role, is the way to go these days" (Interview,
24 April, 2001).
The ability to press the legal claim, in other words, depended
on prior acts to make spaces within the city for communities.
At one level, it is easy to read the history of the gardens
as a conflict over property rights. The City claimed
ownership of the property and its right to sell the land. The
gardening community also claimed ownership, but an ownership
attained by over 20 years of sweat equity. If the City's
ownership came through abandonment, the gardeners' was
based on use. But to keep this story at the level of competing
claims about property rights misses the broader significance
of the struggle and the ways in which claims about rights are
mobilized in political conflict.
Rights of the City (of New York) and rights to the city
We often think of rights as fixed, universal, and abstract.
Yet rights are the product of continuous struggle (see
Mitchell, 2003). As such, it is helpful to think of rights as
being a strategy deployed in the on-going process of trying
to build a radically democratic society (Rasmussen and
Brown, 2002). Rights, then, may be part of a larger, ongoing
process in which groups seek empowerment, rather
than an endpoint or goal that is won through affirmation in
the legal system. This is not to say that rights claims and
the legal standing of those claims are unimportant, fully
indeterminate, or even counterproductive, as some critical
legal theorists and some on the left have argued (see Tushnet,
1984). It is to say instead that rights claims may be part
of a larger struggle in which the legal status of a right becomes
a tool that is more or less useful at different points and
with regard to different issues (Williams, 1991). But more
than this, there are qualitatively different kinds of rights, and
the differences between them may be overlooked in the easy
tossing about of rights claims and in 'rights talk'. As can be
seen in the struggle over the gardens, differences in the kinds
of rights and their deployment shapes not only the nature of
political conflict, but also the kinds of publics and even the
kinds of cities that are created in and through conflict.
As we noted, the City invoked its right as a property
owner to do with its land as it saw best. In this case, the
City felt it was best to sell the land to developers who would
in turn sell the housing to individuals. The rights claims invoked
here were rights of property held by individual entities
regardless of whether those entities were human or corporate.
This vision of rights as held by individuals is enshrined
in the US Constitution. As many political theorists have argued,
this construction of rights, rights-holders and political
subjects rests on an assumption of autonomous individuals
and citizens whose power and personal characteristics are
universal (for critiques, see Pateman, 1989; Young, 1990).
Its understanding of how the 'public' is constituted is one
that works particularly well with capitalism, even as it limits
the kinds of rights claims that are allowable - or perhaps
interpretable - within the liberal polity. Laclau and Mouffe
(1985), Glendon (1991), Sandel (1996) and Isin (2002) make
this same point, even as they argue from very different theoretical
positions. In asserting this view of rights and of
property rights in particular, the City engaged a view of the
public as constructed by abstract entities in which property
rights could be claimed absolutely. The public, from this
perspective, is simply an aggregation of abstract political
subjects. And the right (of the City) to the city was a right
based in property, in legal entitlement to the monopoly use
of a parcel of land.
The claims made by the gardening community, however,
invoked a different set of rights and rights-holders, and
a different conceptualization of the public. The gardening
community claimed a right to spaces within the city in which
a public - or in their terms, a community - could be formed,
mobilized, and empowered. The holders of rights from this
perspective were not individuals so much as they were communal
entities marginalized through the operations of power
relations of capital and racism within society. This point
is significant, as the gardeners claimed the right to public
space for communities that were otherwise deprived of the
resources of the city; they did not, for example, make the
same sort of claims for gardens in wealthiest areas of the
city, even though there are gardens there. Rather, their claim
was that as marginalized communities, they had a particular,
communal right to the space in which they could organize,
mobilize, and seek empowerment. Yet this is a view of rights
that is not explicitly recognized in modern US Constitutional
jurisprudence.4 The entire issue of group rights is uneasily
incorporated within most liberal constitutional systems,
though it should be noted that group and community rights
are granted in many western European countries (Glendon,
1991). The gardening community, however, recognizes the
difficulties of balancing community and individual rights; as
noted earlier, many of the gardeners could have benefited
from housing, for example.
The claims to a communal right to space are not easily
incorporated into the contemporary legal framework of
the US. The initial legal challenges to the sale of the gardens
included civil rights claims about the effects of the sale
on communities of color; the claim to the public spaces of
the city were largely made in other venues, such as public
meetings and in the press. The court, however, rejected
the civil rights claims, and several greening groups withdrew
their support for the lawsuits in response (Interviews
24 April, 2001, 26 April, 2001, 27 April, 2001). Some
groups, such as More Gardens!, Reclaim the Streets, and
Green Guerillas sought to press their claims about the communal
right to space in the streets, in the media, and in
community meetings - in what might be termed 'the public
sphere.' Other groups - largely comprised by gardeners
- organized watches and a system of alerts that were mobilized
when gardens were threatened with bulldozers. It
was in these settings and through these actions that the
rights claims of the gardening community were made interpretable
for the broader public in New York City. Even
more than making the claims understandable to a broader
public, however, these groups sought to appropriate space
for what Nancy Fraser (1990) might call 'counterpublics'
- for groups whose voices and claims would not otherwise
be represented and recognized in deliberations at the Citylevel.
The gardens provided a setting to advance a new set
of claims from groups that had traditionally been marginalized.
These are not universal claims for an abstract public,
however, but claims for specific groups within the city for
whom the right to public space is constitutive (Bondi and
Domosh, 1998; Podmore, 2001; Ryan, 1990; Young, 1990);
they argued that the spaces were critical in organizing efforts
by which groups sought to be included in the polity,
even as their particularity and their differences as citizens
are recognized.
These sorts of claims proved to have deep resonance,
even with those constituents to whom the Giuliani administration
was putatively appealing. Several years of mobilization
- years marked often by the loss of significant, and
often highly symbolic, gardens on the Lower East Side
and elsewhere, and that included everything from letterwriting
campaigns to annual garden tours, to festivals, to
street protests - reached a climax in 1999 when at the
last minute the Trust for Public Land and the New York
Restoration Project bought 112 gardens slated for auction
(Barry, 1999). Some 600 other gardens remained at risk,
however. The fate of these gardens was not settled until
September, 2002, when New York City, under new mayor
Michael Bloomberg, agreed to settle a lawsuit brought by
the New York State Attorney General, Elliot Spitzer.5 The
settlement called for the preservation of about 500 of the
gardens, with the remainder scheduled for the development
of 2000 City-sponsored housing units (Steinhauer, 2002).
It is tempting to interpret this outcome as a case in which
a new set of rights claims - a set of claims based on a collective
or communal right to the city that transcends property
interests - have been put forward and affirmed. From the
lawyers' point of view, however, the reason the gardeners
were successful is that these are a set of claims that did
not rely solely on legal arguments, but rather were based
on community support and mobilization. But if the radical
democratic theorists are correct that we should see rights as
a tool in a larger struggle for building a just city, then it is a
mistake to end the story here. Rather, a new set of questions
arises as to how rights that do not have legal standing in
either the code of law or in court rulings can be protected.
Significantly, the ways in which the lawsuits were settled
(through sales and through negotiated settlement) did not
recognize the legal claims made on behalf of the gardening
community. And property rights have remained crucial. For
while the public's right to those spaces has been affirmed
by the land trusts, they have been able to affirm that right
because the land trusts are the new owners of the garden lots.
The implications of this are considered in the next section.
Private rights to the city?
Land trusts operate in the murky spaces in the boundaries
between public and private. They own land as private entities,
yet they claim to do so in the public interest. Alice
Mulder (Mulder, 2003) has described the ambiguous nature
of land trusts as being 'publicly private,' and Cindi Katz
(Katz, 1998; Katz, 2001) has argued that the rise of land
trusts in the management of public parks in New York City
represented a 'private production of nature' that may be at
odds with the ideal of public spaces and may have implications
for both social reproduction and for the opportunity
to build autonomous spaces for community. As such, the increased
role for land trusts in the preservation of the gardens
sets a new stage upon which rights claims are negotiated.
Significantly, it is a stage on which legal and moral claims
related to property, community and rights take on different
meanings and effectiveness.
When the two land trusts - New York Restoration Project
and the Trust for Public Land - took ownership of the garden
lots, they ensured the survival of the spaces as gardens with
public access.When asked what the biggest challenge facing
the gardens was, almost every respondent gave a simple response:
survival. So the transfer of ownership from the City
to the land trusts seems to have resolved that challenge, at
least for a significant number of gardens. The gardens are
more than patches of green in the city, however; they are
more than gardens. As we have argued, they are spaces in
which communities have formed, mobilized, and acted to
create something more than just green space. It is unclear at
this point how these larger empowerment roles will be sustained
in the new property regime (Blomley, 2003) initiated
through the transfer of the gardens to the land trusts or the
settlement of the attorney general's lawsuit.
The settlement of the lawsuit provided that about 200
gardens already 'owned and run' by the NY Parks Department
and other city agencies will remain gardens; title to
another 200 gardens will be either transferred to the Parks
Department or sold to non-profit groups (like the land trusts)
for a nominal fee. The remaining gardens are slated for development.
While this agreement preserves a large number
of gardens, how - and by whom (by community gardeners,
by land trusts or other non-profits, by the city) - those
gardens will be controlled remains an open question (Steinhauer,
2002). This is important, because community activists
established many of the gardens through an active taking of
property. This taking of property has been crucial to the
gardens' meaning and function, representing as it does a
claim about the right to decide for themselves what was
best for their neighborhood and their 'public' (Interviews,
25 April, 2001, 28 April, 2001; 10 October, 2001). Control
now, however, may be shifted to more distant, perhaps more
bureaucratic, organizations. The meaning and function of
gardens will likely therefore change, and with that change
will come a change in the meaning of the right to the city as
it is produced and lived in the gardens. If, as Lefebvre (1991)
argues, the hallmark of a progressive right to the city is constructing
the city as an ouvre - a work - then, through this
agreement, control over the means of production is being
The land trusts are private organizations that hold ownership
of the land, but they hold the gardens 'in trust' for
the gardening groups in the public interest. By and large,
the gardeners were relieved at the transfer of the plots to the
land trusts through the sale and then through the settlement
of the lawsuit. Hundreds of gardens were saved from the
bulldozer, though some remain in limbo. One of the remaining
issues for the gardens that were saved, however, is the
extent to which the gardeners and the neighborhoods will
retain control over the gardens, or their space.
Representatives of the trusts aver that much of the dayto-
day management of the gardens will remain the responsibility
of the gardeners, but the land trusts want to ensure
that the gardens are actually maintained and kept open for
public use. As such, they have initiated projects to teach
gardeners management skills and have set out guidelines for
maintaining the properties. Gardenswill bemonitored by the
trusts to ensure that basic maintenance and access requirements
are met; the land trusts have the ability to remove the
management or governing structure of gardens that the trusts
feel are not meeting their obligations as public stewards.
The near term goal of the trusts is to build stable, and in
their terms 'responsible', operations of the gardens. As one
representative of a trust commented:
"We want to change the dynamic, the model for how
community gardens are operating and running in the
city. . . And the best way we think we can do that is make
sure that there's some accountability.We feel that if some
entity has responsibility, not just for a couple of years,
but for 25, 30, 50 years down the road, the entity has
the responsibility to ensure that these gardens are going
to be maintained as gardens, as beautiful open spaces
for community use, for public use. . ..This is not going to
happen overnight obviously. We've set up [the trust] to
add some accountability, to ensure that the gardens are
public, that the gardens are open, that the gardens are
beginning to be community tools so that different aspects
of the community can use them. . .. That's one of the main
reasons why [the trust] was established, was to have
accountability. We'll monitor and we'll encourage and
we'll work towards the opening up or including more
residents and more members of the community in the
use of the garden. But again, it might take years to do
that. But we're willing to wait to work on it" (Interview,
25 April, 2001).
In working with the gardening groups, some of the land
trust organizations recognize that it may be difficult to build
the accountability required to maintain the public nature of
the gardens in ways that remain true to the spirit of the
gardening groups and their desire to maintain a space for
autonomous community building, and to the 'genius of the
gardens' that persuaded the lawyers to bring the initial lawsuits.
There is a danger, for example, that externally imposed
notions of accountability and efforts to monitor the governing
boards of the gardens may be viewed with suspicion
and as infringing on the autonomy of the spaces the community
groups have built. A representative of one of the
trusts commented that:
"If [the trusts] get too heavy-handed, it's a disaster because
these are spaces that are created by people in
their neighborhoods. And despite your best intentions,
if you wield a big stick in trying to make it public,
you're exercising a level of control that in some ways
is inappropriate for the grassroots space" (Interview,
25 April, 2001).
The gardeners also worry about this issue, and some
gardeners are a bit resentful that an outside organization will
assume more control over the gardens. Some of the groups
that have built leadership and management from within their
neighborhoods - groups that have been proactive in organizing
programs and in using the gardens for neighborhood
mobilization - are somewhat suspicious of what the land
trusts will expect; they are also resentful of the implicit message
that the gardeners have not already built accountability
structures and that they are incapable of working with other
gardens to teach them how to build those structures. Furthermore,
the issue is overlain with the politics of race in the city,
as noted by two of our respondents. While it is tempting to
say that these are the gardens that have the most problems in
terms of access and that will have to change their practices, it
should be noted that this sentiment was expressed by several
gardening groups.
At root, some of the gardening groups are concerned that
the land trusts may exert too much control and will channel
the activism promoted in the gardens into particular ways of
operating and being. In short, the possibility exists that the
land trusts will change the operations of the gardens in ways
that limit the radical potential of the mobilizations that occur
within those spaces. As the lawyer quoted earlier noted, the
genius of the gardens is that they are 'indigenous' sites of
mobilization. Some of the gardeners worry this genius will
be constrained by the new regulations and oversight.
While no one raised this issue specifically, it should also
be noted that the legal issues raised by the gardeners also
change with the transfer of ownership. The land trusts now
own the land, and manage it in 'public trust.' However, they
are not under the same legal requirements that the initial lawsuit
raised related to civil rights. In short, the kinds of legal
responsibilities held by the land trusts to a 'public' are not as
stringent - in either a legal or a moral sense - as those faced
by government agencies. And the question of who the 'public'
is that is to be served by the gardens remains unclear.
As Mulder (2003) argues in a somewhat different context,
it may be the public that lives next to the gardens, it may
be the people who can access the scenic and environmental
benefits of the gardens, or it may be the city as a whole. The
land trusts are under no obligation - again, legally or morally
- to construct the public as those who use the space for
mobilization, or those who use the space as an indispensable
foundation for the formation of a 'counterpublic'; indeed,
the land trusts may argue that political mobilization in the
gardens may be contrary to the 'public interest'. One of the
advantages of land trusts has been that they can do things
that governments often cannot do. In this situation, they may
be able to limit the political potential of the gardens in ways
that the City - and the Giuliani administration, in particular
- could not do without having to address public outcry.
There was no indication from any of the people we talked
to that the land trusts had done anything to limit the ability
of the gardens to organize their communities. Yet there was
an undercurrent of worry expressed by many of the gardeners
and greening advocates with whom we spoke. The issue
from their perspective - and for the argument presented here
- is that the land trusts become a new agent in the struggle
over the right to the spaces of the city. The resolution of
one conflict may become the basis for the next struggle.
The struggle for the right to public space - and the city -
is always on-going, and conflict over and between different
rights to and in the city never ceases.
Law - including the U.S. Constitution - has a lot to say
about property and how rights intersect with it. But it doesn't
say much at all about giant butterflies, frogs, flowers, and
fairies. Nonetheless, the nature of property, and thus the current
resolution to the gardens struggle in New York cannot
be understood without them. The Giuliani Administration's
insistence that its property rights gave it the further right to
determine the shape of development (and who it benefited) in
a range of previously abandoned, but now often productive
and beautiful, lots across the city, led to a broad mobilization
of opposition across the city. The threat to the gardens
called into existence a variety of 'counter publics' seeking
to contest the mayor's vision of the city; the gardens were
the locus of these counter publics' formation, the necessary
space within which publics could form; the streets, the
parks where rallies were held, and the public protests at
official City events, became the place where these publics
became visible to the larger public as a whole. Parades of
butterflies, frogs, flowers, fairies, and outraged gardeners,
to say nothing of the similarly mobilized armies of lawyers,
spokespeople, and behinds-the-scenes workers in organizations
like the Green Guerrillas and More Gardens! sought
to reclaim property, to redefine it (and what constituted a
'highest and best use' - see Blomley, 2003), and to plant in
themarginal spaces of the city a quite different vision of how
urban development ought to proceed.
In this effort, different rights claims and visions of 'the
public' were put forward. While the City invoked its property
rights, it claimed that it was also working to ensure
that basic needs related to housing would be met. Gardening
groups proclaimed a different set of rights claims - claims
that related to the ways in which marginalized groups could
assert their autonomy, distinctiveness, and right to spaces of
community. The land trusts use property rights to construct
certain kinds of communities based, perhaps, on notions of
accountability; accountability to whom, however, remains
an open question and one on which the trusts themselves
seem to disagree. Significantly, in transferring the garden
property and associated rights to the land trusts, the City also
distanced itself from claims related to housing and rights. In
the spirit of neo-liberal retrenchment, then, the City has removed
itself fromclaims related to the rights to the city. This
right, perhaps, is never won. As the struggle over the gardens
demonstrates, the conditions under which the struggle
is waged merely change.
This research was funded by National Science Foundation
grant BCS-9819828; we greatly appreciate that support. The
Department of Geography at Penn State also provided support
for Kristi Gibson. Finally, we are grateful to Nicel
Saygin, who provided research assistance, and of course, to
the gardeners and others who took the time to speak with us.
1Throughout the paper, we will denote the government of
New York City as 'the City.' When referring to the geographic
area, we use the lower case 'city.'
2The respondents were identified through news accounts,
snowball sampling, and participant observation. Interviews
were semi-structured, and generally took one hour to complete.
As many respondents requested confidentiality, we do
not use names in this paper. Interviews were conducted as
part of two independent, but overlapping, studies.
3We recognize, of course, that the City may not hold this
belief very deeply, as the City has been in contempt of the
courts for failing to provide adequate shelter for homeless
families - families who would not be eligible for the housing
provided through the sale and development of the gardens.
4Yet, as Akhil Reed Amar (1998) shows much of the debate
over the writing and ratification of the Bill of Rights was
concerned with what he calls 'public' rights - the rights of
the people as a people rather than individuals.
5In contrast to the other lawsuits that were based on civil
rights claims, this suit was filed on procedural grounds.
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