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Prof Blasts “Murky” Proposed Rules For Green

by Thomas MacMillan | Nov 21, 2013 12:11 pm

(10) Comments | Commenting has been closed | E-mail the Author

Posted to: Legal Writes, Parks, Downtown, Occupy Wall Street

Thomas MacMillan Photos As the city considers how to clear up “troubling” laws about the New Haven Green, a law professor present for the legal wrangling over Occupy New Haven argued that the proposed fix would violate people’s First Amendment rights.

That professor is Brian Soucek, a Yale law school grad who now teaches at at the University of California, Davis.

Soucek began an exchange with city Corporation Counsel Victor Bolden (pictured) last week after reading this story in the Independent. The story reported that Bolden has drafted proposed new rules for groups using the New Haven Green in light of last year’s controversial Occupy New Haven encampment, rules that will soon come before the Board of Aldermen.

In a letter to Bolden, Soucek argues Bolden’s proposed amendments to city ordinances violate the U.S. Constitution and do not clarify the city’s muddled relationship with the private, self-electing body that technically owns the Green.

In a response letter, Bolden writes that the city’s proposed and existing laws are perfectly constitutional. He argued that the city’s arrangement with the owners of the Green presents no legal difficulty for the city.

Click here to read Soucek’s letter, and here to read Bolden’s. Click here to read a second letter from Soucek, responding to Bolden’s response.

Soucek was a law clerk for the late Judge Mark Kravitz (pictured) when the judge wrote a decision on a lawsuit centered on Occupy New Haven‘s 2012 encampment on the Green. (Click here to read Kravitz’s opinion.)

Kravtiz’s ruling helped clear the way for the city to evict the political protesters from the Green. But in the process, Kravitz highlighted some “murky matters,” namely, the relationship between the city and The Committee of the Proprietors of Common and Undivided Lands at New Haven, a.k.a. the “Proprietors of the Green,” the private self-perpetuating group that technically owns the city’s central square.

Kravitz called it “troubling” that a private group requires the city to enforce regulations the city creates regarding the private group’s property.

To address Kravitz’s concern, Bolden this month submitted his proposed ordinance amendments to the Board of Aldermen. The proposal will be the subject of hearings at the Board of Aldermen’s Legislation Committee and the City Plan Commission. Click here for a full rundown of the proposal.

The proposed amendments include a new section on the New Haven Green and explicitly state that rules covering other city parks also apply to the Green. The new laws would require permits for all special uses, and require permit denials to be in writing. They would also require permittees to pay for police protection and to secure a bond to pay for any potential damage.

Following is a summary of Soucek’s and Bolden’s back-and-forth on the issues raised, drawn from their letters and interviews, as they battle over the meaning of the late Kravitz’s 26-page decision.

Bottles

Soucek’s letter to the city articulates “four worries” about the proposed amendments.

First, he said, a proposed requirement that permittees pay for police protection and insurance “as deemed necessary” by city officials is “flatly unconstitutional.”

UC Davis Soucek (pictured) cited a U.S. Supreme Court decision in the case of Forysth County, Georgia v. Nationalist Movement. The court in that case ruled, in Soucek’s words, that “charging demonstrators for their own protection forces unpopular speakers to pay more for their right to speak than those whose expression is less controversial.”

In other words, people with views that might attract “bottle-throwers” would have to pay more money to get their message out than people hosting, say, a kitten convention. That amounts to discrimination based on the content of speech, a violation of the First Amendment, Soucek’s letter argued.

In his letter, Bolden responded with a long quote from the same Forsyth decision, which he said shows “critical aspects” of the ruling. The main point of the Forsyth decision, in Bolden’s view, is that it prohibits government officials from wielding “unbridled discretion” when it comes to deciding whether or how much to charge for a public event permit.

The proposed amendments would limit that discretion by requiring the parks director to treat all applicants the same, Bolden said. While the city would have to make a determination of how much police protection would be needed for a park event, it would also have to explain itself in writing, and the permit applicant would have a chance to revise his application, and appeal any denial, Bolden said.

In his second letter to Bolden, Soucek wrote that it’s the determination of how much to charge that is the problem. That kind of discretion is unconstitutional because it means people with controversial views would have to pay more, he said. He quoted from the Forsyth decision: “Listeners’ reaction to speech is not a content-neutral basis for regulation.”

Bonds

Soucek’s second criticism concerns a proposal that would prevent the park director from waiving a permittee’s liability bond if the permittee can’t afford to pay for it. This would be unconstitutional not only because of the impact it would have on poorer permit applicants, but for the same reasons that the police protection requirement would violate the First Amendment, Soucek states.

In his letter, Bolden cited another U.S. Supreme Court decision, in Chicago v. Park District, in which the high court upheld a bond requirement on park users. The court found that the requirement applies to anyone hosting an event with more than 50 people, to “the picnicker and soccer player, no less than the political activist or parade marshal.” The permit process serves “not to exclude communication of a particular content,” but to protect the park, coordinate uses and space, and assure “financial accountability” for any damage,” the decision reads.

Soucek countered that the new bond requirement simply changes the law from “‘The director may employ unconstitutional discretion’ to “The
director must employ unconstitutional discretion.’ That is not an improvement.”

Soucek also dismissed Bolden’s appeal to Chicago v. Park District, because the fees in that case did not vary based on the “communicative impact” of permit applicants’ speech.

Commerce

Thirdly, Soucek’s letter objected to a proposed amendment that would prohibit commercial activity on the Green. Soucek said it’s unclear whether the law would give the proprietors discretion to grant exceptions or not. Either way, it’s problematic, he said. Either the Arts and Ideas festival wouldn’t be able to sell tickets on the Green, or the law would give the proprietors a level of discretion “that may prove constitutionally problematic,” he wrote. Proprietors could reject commercial uses they don’t agree with.

Bolden argued Soucek’s critique takes the amendments out of context. “There is no ‘unbridled discretion’ or ‘unconstrained ability’ to limit protected First Amendment activity in the proposed ordinance amendments and content-neutral regulations on ‘commercial or camping activities’ do not violate the First Amendment.”

Thorns

Finally, Soucek wrote that it’s unclear “how the newly proposed ordinances treat the ill they were mean to cure.” He said the proposed amendments do nothing to clear up the unique and complicated relationship between the city and the proprietors, in which a public entity manages and regulates private land.

“Still murky is how an ordinance passed by the Board of Aldermen can expressly authorize anything at all on behalf of the Committee of the Proprietors,” Soucek stated.

The city would need some sort of “contemporaneous agreement” between the city and the proprietors for the new laws to have any legal effect, Soucek said.

In response to Soucek, Bolden quoted from Kravitz’s opinion, where the judge stated that “courts have largely been able to sidestep the thorny issues arising from the public-private partnerships like these.” Even Kravitz himself said the city-proprietor relationship doesn’t create insurmountable legal problems, Bolden said.

As for a “contemporaneous agreement,” Bolden’s letter said that the city would secure “express written authorization from the proprietors for the amendments to the city’s Code of Ordinances, once they are in their final form.”

Do Or Do Not?

When Kravitz said that he and other courts can “sidestep the thorny issues,” he was also pointing out that the relationship between the city and the proprietors nonetheless presents “thorny issues.” Asked about this, Bolden said that “hundreds of years of history” of the city using the Green as a public space sets enough precedent to deal with any legal difficulties.

“It’s a non-issue,” Bolden said.

In his letter, Bolden pointed out that Kravitz wrote in his decision that the city’s rules covering the Green are “constitutionally acceptable, content neutral restrictions” that, if “properly employed, ... do not stifle speech but coordinate it to allow for expression that is as vibrant and varied as possible.”

“The bottom line is, is this a public space where the First Amendment applies? The answer is clearly yes,” Bolden said.

Soucek countered that Kravitz’s ruling “did not find that the city’s rules governing the Green were constitutional.” Kravitz said that the city’s ordinances alone “would not provide anything close to enough guidance to survive a First Amendment challenge.” The city won the case only because its longstanding practices were “remarkable constrained,” Soucek said, quoting Kravitz.

“It is wrong to characterize (as you twice do) the city’s rules themselves as ‘constitutionally acceptable,’” Soucek wrote to Bolden. “They were and are not.”

The question is whether the proposed amendments make them constitutional, Soucek said. “The answer, unfortunately but clearly, is that they do not.”

The Board of Aldermen’s Legislation Committee will meet on Dec. 12 to discuss the proposed ordinances.

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posted by: robn on November 21, 2013  12:50pm

Soucek’s precedents relate to public parks and are therefore irrelevant because the land isn’t owned by the city. The Proprietors allow limited public use of private land in exchange for the city’s upkeep and policing. There’s nothing murky about it.

posted by: TheMadcap on November 21, 2013  1:04pm

The fact that the city upkeeps and regulates private land as a public space is exactly what is murky to begin with, it’s a very odd situation.

What is not murky is the fact it’s outrageous a small hereditary group of people own the green to begin with.

posted by: robn on November 21, 2013  1:38pm

MC,

Our city grew up around a relatively small piece of privately held land lent for public use for 375 years. Why are you outraged? Because something was preserved in perpetuity for public enjoyment but you don’t like the fact that there are rules attached to the gift?

posted by: Jonathan Hopkins on November 21, 2013  2:42pm

According to my research, while the Proprietors of the Green technically own the land, any decision they make about the Green can be voided by the city government “unless [the Proprietor’s decision is] ratified by vote of a town meeting”.

“It is clear therefore that the legal title to the Green, so far as one can be said to exist, is held by the Proprietors’ Committee, by virtue of their ownership they claimed and exercised until within a recent period the right to control its management, and gave or withhelf permission for the erection of building upon it at their discretion. While the right on their part was never disputed by the town or city, it was also exercised on several occassions by the Proprietors. In the year 1856, however, an act was passed by the State Legislature making void any permission thereafter given by the Proprietors’ Committee for the erection of any structure on the Green unless it should be ratified by vote of a town meeting. Finally in 1868, by the City Charter granted in that year, the Court of Common Council was vested with the entire management and control of all the public squares of the city, and this provision, which has been continued in the subsequent City Charters, is likely to be permanent.
It will be observed, however, that the power thus conferred on the Common Council over the Green is one to regulate, not to impair the right of ‘public use for a market place’, which was given by its original dedication in 1638, and confirmed by a renewed dedication in 1757.”

- Henry Taylor Blake. “Chronicles of New Haven green from 1638 to 1862: A Series of Papers Read Before the New Haven Colony Historical Society” (New Haven; The Tuttle, Morehouse & Taylor Press; 1898) pp. 12-14
http://books.google.com/books?id=cxbVAAAAMAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f;=false

Perhaps some decision-making power was given back to the Proprietor’s after 1898? The town government was consolidated with the city’s in 1895.

posted by: Jonathan Hopkins on November 21, 2013  2:48pm

Large portions of land in New Haven, especially to the northwest, were originally held by the Proprietors. Beaver Hills and Dixwell, for instance, were development as the proprietors land was sold off and developers subdivided it. Beaver Ponds Park was a part of the original “town common”  (land that the Proprietors owned and allowed for use for animal grazing and such) and ended up being preserved as a city park. The reason the Lower Green was never sold off and subdivided was because it legally wasn’t allowed to. It must remain a public open space regardless of who owns it for all time. The upper Green may now also be preserved like the lower Green, but there was a time when it could have potentially been sold off and developed (not sure if this is still true).

http://images.library.yale.edu/nhsize3/YVRC/D4164/257849.jpg

posted by: FacChec on November 21, 2013  2:51pm

It was just recently, as a result of the “occupation”, that we were made aware of the owners of the green to be the “murky”(hidden) Committee of the Proprietors. 

For 375 years the owners have allowed the city to maintain the green without one $ent contribution to the city.

To fully clear up the ownership relationship constrict, perhaps Yale should return the sales favor by selling the green to the city, as the city has done in Yale’s interest, most recently in the case of the parking lot on Broadway and the sale of High&wall; st’s.

#Create the ordinance before you exist Mr. Mayor.

posted by: Anderson Scooper on November 21, 2013  11:49pm

@Robn—

I do not recognize “The Five’s” presumed ownership of the Green, and I don’t think the City administration should either.

The Green is a park that’s been occupied by the public for hundreds of years. Add in the City’s maintenance of the park, via our tax dollars, plus the fact that most New Haveners believe the Green does in fact belong to us… And I think you end up with a strong case for adverse possession: http://en.wikipedia.org/wiki/Adverse_possession

At the least the public has established significant property rights with regards to our town square. Beyond their feudal claim to stewardship, the Proprietors certainly do not enjoy “ownership” of the Green in any ordinary sense of what owning property means. Please consider that The Five don’t pay the taxes on the land, they can’t sell the property, they can’t lease it, and they also can’t do anything against the public’s long-standing use.

Fwiw.

posted by: robn on November 22, 2013  8:36am

AS,

Think about the implications of what you’re suggesting with this very plausible thought experiment. A wealthy family is considering two options for a large track of land :

1) Forming a non-profit nature preserve and granting the public limited use. (this is what they want to do)

2) Cashing out to Toll Brothers who want to raze all trees, flatten the parcel and build tracts of McMansions. (not what they want to do)

If precedent is in place equating limited public use with squatter’s rights, the family’s dream of a nature preserve would last only as long as public officials waited before seizing the land through eminent domain.

I have a problem with this because it flies in the face of individual property rights. Also, as far as I can tell, the proprietors aren’t making any dramatic change to public use. Remember that the Occupy squat not only damaged the Green but they themselves, through the longevity of their stay limited public use.

posted by: westville man on November 22, 2013  9:14am

AS   Adverse possession requires “hostile” use- basically exercising ownership rights without permission or objection from the owner.  Here there is permission so it fails from a legal standpoint.
But, after 150 years of a “strange” relationship between the Proprietors and the City,  a Court might decide that it’s time to crack a “trust” of some type (constructive, quasi, etc) and disburse the property to its intended true owner (by all ownership indicia) - the City.

posted by: Bill Saunders on November 23, 2013  11:06pm

And to add to Robn’s comment….

And the City of New Haven is the one who let it all happen to begin with. So now they get to fix there own problem by limiting public use a little bit more….(at their discretion). 

This is a devil’s snare.

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