By
wayan on July 31st, 2007
From the Washington Post:
“Developers cannot prohibit people from taking photographs on public-private space in downtown Silver Spring, the Montgomery county attorney declared yesterday in a letter to County Executive Isiah Leggett.
In an eight-page letter, County Attorney Leon Rodriguez said that the street in question, Ellsworth Drive, “constitutes a public forum” and that the First Amendment’s protection of free speech applies there.
The “publication, dissemination and display of photographs have long been recognized as protected speech” under the Constitution, Rodriguez wrote.
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By
wayan on July 30th, 2007
From Marc Fisher, Washington Post:
“In the continuing saga of the fight for First Amendment rights in the publicly-owned but privately-managed downtown Silver Spring, Montgomery County’s chief lawyer today released a strongly worded opinion making it clear that the new downtown development is public space and must be open to public expression, whether political, religious or the simple act of taking photographs.
The opinion is clear from its first words: “Ellsworth Drive constitutes a public forum.”
In an elegantly reasoned and clear opinion, Assistnt County Attorney Nowelle Ghahhari reminds the Peterson Companies, the developers of the highly successful downtown project, that the land upon which their development sits is public and that the developer has the right only to close Ellsworth Drive to vehicular traffic from time to time, not pedestrian traffic.
Citing court cases in which judges have defined public for as “those places which ‘by long tradition or by government fiat have been devoted to assembly and debate’,” the opinion says that streets and sidewalks are clearly such public places.”
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By
wayan on July 30th, 2007
(Original document in PDF format)
MONTGOMERY COUNTY
OFFICE OF THE COUNTY ATTORNEY
July 30, 2007
TO: Isiah Leggett County Executive
VIA: Leon Rodriguez County Attorney Marc Hansen Deputy County Attorney
FROM: Nowelle A. Ghahhari Assistant County Attorney
RE: Public Use of Ellsworth Drive
QUESTION
Do Ellsworth Drive, and its adjoining sidewalks and walkways, and other public use areas (collectively, ” Ellsworth Drive”) constitute public fora such that PFA Silver Spring, LC, is limited in implementing restrictions on the First Amendment rights of users of Ellsworth Drive?
ANSWER
Ellsworth Drive constitutes a public forum. Thus, PFA Silver Spring, LC may only implement reasonable time, place and manner restrictions on protected speech which are content neutral, narrowly tailored to serving a significant purpose, and which allow for reasonable alternative avenues of expression, or content-based restrictions which are narrowly tailored to serving a compelling purpose.
BACKGROUND
In April of 1998, Montgomery County entered into a General Development Agreement with PFA Silver Spring LC (the “Developer”), a Maryland limited liability company, for the Redevelopment of Downtown Silver Spring as part of the County’s Silver Spring Retail Redevelopment Urban Renewal Project. The project was to entail the creation of mixed use space, consisting of retail, entertainment, restaurant, office, hotel and public use space.
Central to the Agreement was the lease to the Developer of several parcels of property in downtown Silver Spring owned by the County, including the portion of Ellsworth Drive extending between Fenton Place and Georgia Avenue. The County retained an easement over specific portions of the leased properties for vehicular and pedestrian use.
In September of 2002, pursuant to the terms of the Development Agreement, the County entered into a lease with the Developer and recorded a Declaration of Easements in the Land Records. The Declaration of Easements provided that the County reserved “Public Use Easements” over several of the leased parcels, including Interior Ellsworth Drive, the Gateway Plaza, the Silver Spring Plaza, an area referred to as the “Breezeway Easement Area,” and all adjacent streets and ways.
The easements defined the areas as “Public Use Space,” pursuant to Section 59-A-2.1 of the Zoning Ordinance of Montgomery County, which provides that public use space is “[s]pace required by the sector plan and other space devoted to such uses as space for public enjoyment.” The County retained a “perpetual non-exclusive easement and right of passage and use, free of charge,” for pedestrian and vehicular ingress and egress on, over and across the public use spaces.
In addition to the Public Space Easements, the County also retained the right to close Interior Ellsworth Drive, Gateway Plaza, and Silver Spring Plaza four times per year for public festivals. The Developer retained the right to close any one or all three of those spaces to public vehicular, but not pedestrian, traffic from time to time, as well as the right to “impose and enforce such reasonable rules and regulations as [the Developer] deems necessary to maintain order and to promote the safety, security and economic success of the Downtown Silver Spring Project.”
In June of 2007 it came to the County’s attention that the Developer was requiring anyone wishing to take photographs on Interior Ellsworth Drive to register with its security office. Timothy Firestine, Chief Administrative Officer for Montgomery County, subsequently requested a legal opinion as to whether the Developer has the ability to so restrict photography and other expressive activities on Ellsworth Drive.
DISCUSSION
A. Public Fora:
The First Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Article 40 of the Maryland Declaration of Rights provides “[t]hat the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.” The Maryland Court of Appeals interprets the provisions of the First Amendment to the United States Constitution in pari materia with Article 40 of the Maryland Declaration of Rights, and therefore will usually consider claims raised under both provisions together as one issue. Lubin v. Agora, 389 Md. 1, 17 n.8, 882 A.2d 833, 843 n.8 (2005).
In ascertaining what limits, if any, may be placed on speech protected by the First Amendment, the determining factor is the nature of the forum in which the speech occurs. Int’l Soc’y For Krishna Consciousness, Inc. v. Rumbaugh, 505 U.S. 672, 678, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541, 549-40 (1992); Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420, 428 (1988). The Supreme Court of the United States has identified three types of fora: the “traditional” public forum, the public forum created by government designation, and the nonpublic forum. Frisby, 487 U.S. at 479, 108 S.Ct. at 2500, 101 L.Ed.2d at 428; Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567, 580 (1985); Perry Education Assn. v. Perry Local Educators’ Assn. , 460 U.S. 37, 44, 103 S.Ct. 948, 955, 74 L.Ed.2d 794, 804-05 (1983). Traditional public fora are “those places which ‘by long tradition or by government fiat have been devoted to assembly and debate’.”
Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449, 87 L.Ed.2d at 580, quoting Perry Education Assn., 460 U.S. at 45, 103 S.Ct. at 954, 74 L.Ed.2d at 804. Streets, sidewalks, and parks historically have been associated with the free exercise of expressive activities, and therefore are generally considered to be traditional public fora. United States v. Grace, 461 U.S. 171, 178, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736, 744 (1983). See also Perry Education Assn. v. Perry Local Educators’ Assn. , 460 U.S. at 45, 103 S.Ct. at 954-55, 74 L.Ed.2d at 804; Hague v. Committee For Industrial Organization, 307 U.S. 496, 515-16, 59 S.Ct. 954, 964, 83 L.Ed. 1423, 1436 (1939) (”Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”).
The fora implicated in this case, a street and its adjoining sidewalks and walkways, therefore would constitute a traditional public forum, but for the fact that they are privately leased. Because the First Amendment applies to state actions and not the actions of private property owners, private property must assume significant attributes of public property dedicated to public use before the First Amendment’s protections will apply, and the fact that the public is generally invited to use the property for a designated use does not automatically extinguish the property’s private nature. Central Hardware Co. v. Nat’l Labor Relations Board, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972); Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131, 143 (1972).
In determining whether privately owned property is subject to the strictures of the First Amendment, Courts have looked to the following factors: whether the property shares physical similarities with more traditional public fora; whether the government has permitted or acquiesced in broad public access to the property; whether it historically has been used as a public forum; and whether expressive activity would tend to interfere in a significant way with the uses to which the government has as a factual matter dedicated the property. Int’l Soc’y for Krishna Consciousness, 505 U.S. at 698-99,112 S.Ct. at 2718, 120 L.Ed.2d at 563 (Kennedy, J., concurring in judgment).
In United States v. Grace, 461 U.S. at 171, 103 S.Ct. at 1702, 75 L.Ed.2d at 736, the United States Supreme Court addressed whether the sidewalk in front of the Supreme Court building constitutes a public forum. Emphasizing that the Supreme Court building and grounds are not public forum property, the Court then noted, conversely, that “[s]idewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally, without further inquiry, to be public forum property.” Id. at 179, 103 S.Ct. at 1708, 75 L.Ed.2d at 745. Emphasizing that “[t]here is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave,” the Court held that the sidewalk in front of the courthouse was a public forum for First Amendment purposes. Id. at 180, 103 S.Ct. at 1708, 75 L.Ed.2d at 745.
Applying the factors set forth in Grace, the Ninth Circuit Court of Appeals held in Venetian Casino Resort, LLC v. Local Joint Executive Board of Las Vegas, 257 F.3d 937 (9th Cir. 2001), that the sidewalk in front of the Venetian Casino in Las Vegas, although privately owned, constituted a public forum. In Venetian Casino Resort, the casino had entered into an agreement with the Nevada Department of Transportation to construct a sidewalk to replace the previously publicly owned sidewalk in front of the casino which was to attach on both sides of the Venetian’s property to public sidewalks “for the purpose of providing unobstructed pedestrian access,” whereby the casino agreed to “remove or modify the [Venetian’s] improvements at the [Venetian’s] expense if they become a hazard or obstruction to either pedestrian or vehicular traffic.” Id. at 940.
In declaring the private sidewalk to be a public forum, the Court noted that “[t]his replacement sidewalk is a thoroughfare sidewalk, seamlessly connected to public sidewalks on either end and intended for general public use,” that, “historically, the sidewalk in front of the Venetian and adjacent to Las Vegas Boulevard had been historically a public forum,” and that “[t]here is also little to distinguish the replacement sidewalk in front of the Venetian from the connecting sidewalk in front of the Venetian or from the connecting public sidewalks to its north and south.” Id. at 943, 944, 945.
In First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114 (10th 2002), the Salt Lake City Corporation sold to the Church of Jesus Christ of Latter-Day Saints a portion of Main Street in downtown Salt Lake City, which the Church closed to vehicular traffic and transformed into a pedestrian plaza. The City retained, however, an easement over the street for “pedestrian access and passage only” while declaring that “[n]othing in the reservation or use of this easement shall be deemed to create or constitute a public forum.” Id. at 1118.
The Court of Appeals for the Tenth Circuit held that, despite the easement’s express language to the contrary, the street remained a public forum because “it forms part of the downtown pedestrian transportation grid, and it is open to the public” and therefore “shares many of the most important features of sidewalks that are traditional public fora.” Id. at 1124. The Court further explained that “the use of this property, which is similar to a traditional public sidewalk, is compatible with expressive activities.” Id. at 1128. Thus, it concluded that, “[i]n retaining the easement, the City not only retained the most important functions of the property, but also the functions most often associated with speech activities.” Id. at 1131.
Similarly, in United Church of Christ v. Gateway Economic Development Corporation of Greater Cleveland, Inc., 383 F.3d 449 (6th Cir. 2004), the Sixth Circuit Court of Appeals held that the privately owned sidewalk outside of the Gateway Sports Complex constituted a public forum. The sidewalk, which encircles the complex, is owned by a private entity that retains the right to exclude “all persons from using the Gateway Sidewalk . . . to solicit, advertise, or protest.” Id. at 451.
The Court emphasized in its holding that there are “two key reasons” why the Gateway Sidewalks constitute a public forum: because it “blends into the urban grid, borders the road, and looks just like any public sidewalk” and is “made of the same materials and share the same design” as the public sidewalk; and because “like its publicly owned counterparts, [it] also is a public thoroughfare” and “contributes to the City’s downtown transportation grid.” Id. at 452. In sum, the Court concluded that the Gateway Sidewalk “differs from those sidewalks that have not been held to be public because it is fully integrated into the downtown and indistinguishable from its adjoining publicly owned sidewalk both physically and in its intended use.” Id. at 453. See also The World Wide Street Preachers’ Fellowship v. Reed, 2006 U.S.Dist. LEXIS 4763, *20 (M.D. Pa. 2006) (holding that a privately owned sidewalk constituted a public form because it was “contiguous with the other portions of the sidewalk”).
Conversely, courts have held that privately owned streets and sidewalks do not constitute public fora for First Amendment purposes when the public does not have the right to unrestricted passage on the street or sidewalk, and the street or sidewalk was readily distinguishable from other publicly owned thoroughfares. For example, in Gibbons v. Texas, 775 S.W.2d 790 (Tex. App. 1989), the Texas Court of Appeals held that a church-owned street was not a public forum. The street in Gibbons was bordered on both sides by church property, and the “church retain[ed] control of the privately owned street at all times and reserve[d] the right to close it off to the public at any time.” Id. at 793. In S.O.C., Inc. v. The Mirage Casino-Hotel, 117 Nev. 403 (Nev. 2001), the Supreme Court of Nevada determined that privately-owned sidewalks on the property of two Mirage Resorts were not public forums.
Both sets of sidewalks in that case contained signs posted at various points indicating that they are private property; one sidewalk also was constructed of wooden planks consistent with the theme of the casino, was elevated off the ground, and was separated from the road by a parallel publicly owned sidewalk, while the other sidewalk ran along the interior driveway of the casino and bordered the casino’s water attraction.
In this case, Interior Ellsworth and its adjoining sidewalks and walkways share physical similarities with more traditional public fora; have been reserved by the County for broad public access; have historically been used as public fora; and are conducive to expressive activity – that is, expressive activity does not interfere in a significant way with their use. More specifically, the streets, sidewalks and walkways in this case are not in anyway distinguishable from other, publicly owned streets, sidewalks or walkways; they form a part of both the vehicular and pedestrian transportation grids of downtown Silver Spring, and are not marked “private.”
Further, the Developer has no power under the lease to restrict pedestrian ingress or egress over these areas, and the Developer’s ability to restrict vehicular ingress and egress is substantially limited to occasional closures. Before the County leased these spaces to the Developer, they were public fora. Thus, interior Ellsworth is a public forum. Moreover, given the terms of the lease, there is little doubt that the Gateway Plaza, the Silver Spring Plaza and the area referred to as the “Breezeway Easement Area,” and all adjacent streets and ways thereto are public fora as well.
B. Limitations on Regulations:
In a traditional public forum, such as Ellsworth Drive, the government or government actor may implement and enforce either content-based regulations of protected speech that are necessary to serving a compelling state interest, and which are narrowly tailored to achieving that purpose (strict scrutiny analysis), Perry Education Assoc. V. Perry Local Educators’ Assoc., 460 U.S.37, 44, 103 S.Ct. 948, 955 (1983); or the government or government actor may impose time, place and manner regulations which are content-neutral, narrowly tailored to serve a significant government interest, and which leave open ample alternative channels of communication. Id. See also Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753 (1989).
In this context, “government actor” means the private entity that holds the private property interest, like the casino in Venetian Casino Resort and the church in First Unitarian Church of Salt Lake City. Although Developer is not the County’s agent, Developer is a government actor in the context of this discussion.
With regard to time, place and manner restrictions, the regulation does not have to be the least restrictive means of serving the government interest, so long as the means chosen are not substantially broader than necessary to achieve the government=s interest. Ward, 491 U.S. at 798-99, 109 S.Ct. at 680.
C. Photography and Freedom of Expression:
The First Amendment protection of speech engenders a penumbra of rights, such as the right to express ideas, to be exposed to ideas expressed by others, to communicate with the government, and to associate with others in the expression of ideas and opinions. Brown v. Glines, 444 U.S. 348, 362-63,100 S.Ct. 594, 606, 62 L.Ed.2d 540, 553 (1980) (Brennan, J., dissenting). Not all forms of expression are protected, however; thus, some forms of speech are not subject to the strictures of the First Amendment. For example, libel, child pornography, obscenity, and fighting words have been recognized as forms of speech which may be freely regulated. See R.A.V. v. St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 2542-43, 120 L.Ed.2d 305, 317 (1992).
Nevertheless, the United States Supreme Court has recognized that “in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression.” Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614 (1973). Thus, picketing, parading, boycotting, marching, demonstrating, as well as pamphleteering, are all forms of expression that the have been recognized as speech protected by the First Amendment. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982).
The First Amendment also protects expression in the form of entertainment such as motion pictures, programs broadcast by radio and television, as well as live entertainment, such as musical and theatrical performances. Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671, 678 (1981). And forms of artistic expression such as music, painting, poetry, pictures, drawings, engravings, and photographs, also are protected by the First Amendment.
See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569, 115 S.Ct. 2338, 2345, 132 L.Ed.2d 487, 501 (1995); Kaplan v. California, 413 U.S. 115, 119-120, 93 S.Ct. 2680, 2684, 37 L.Ed.2d 492, 497 (1973). See also Massachusetts v. Oakes, 491 U.S. 576, 591, 109 S.Ct. 2633, 2642 (1989) (Brennan, J., dissenting) (APhotography, painting, and other two-dimensional forms of artistic reproduction . . . are plainly expressive activities that ordinarily qualify for First Amendment protection.@).
Thus, the publication, dissemination, and display of photographs have long been recognized as protected speech. See Burnham v. Ianni, 119 F.3d 668 (8th Cir. 1997). Although the courts have not definitively resolved the issue of whether the taking, as opposed to the display, of photographs is a protected expressive act, we think it likely that a court would consider the taking of the photograph to be part of the continuum of action that leads to the display of the photograph and thus also protected by the First Amendment.
CONCLUSION
Ellsworth Drive is a public forum in which restrictions upon expressive activities are subject to the protection of the First Amendment. Thus, the Developer must comport with the First Amendment in exercising its right to implement reasonable rules and regulations to maintain order and promote the safety, security and economic success of the property.
(Original document in PDF format)
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By
wayan on July 25th, 2007
From the MoCo Gazette
“The developers of downtown Silver Spring cannot prohibit visitors from taking pictures on the Ellsworth Drive property, Montgomery County Executive Isiah Leggett announced Friday, publicly stating his position for the first time on a civil liberties controversy over use of the public-private space.
‘‘The [c]ounty considers Ellsworth to be a public forum permitting the free and unfettered exercise of First Amendment rights by residents of the county and its visitors,” Leggett (D) wrote in a letter to PFA Silver Spring LC and The Peterson Cos.
PFA Silver Spring is the name of holding company that developed downtown Silver Spring, including The Peterson Cos., the Foulger-Pratt Co. and Argo Investment Co. The Peterson Cos. leases the development and Ellsworth Drive from the county for $1.
Leggett was responding to an incident in June, when a security guard stopped amateur photographer and Silver Spring resident Chip Py from taking pictures of the property. Py, who said he was taking general photos of the area on a nice day, argued the street should be considered public property since $450 million in public funds has been invested into the property.”
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By
wayan on July 21st, 2007
From the Washington Post:
“County Executive Isiah Leggett weighed in on the debate over the protection of civil liberties in public-private space yesterday with a letter telling the developers of downtown Silver Spring that they cannot prevent people from taking pictures in public areas.
“The County considers Ellsworth to be a public forum permitting the free and unfettered exercise of First Amendment rights,” Leggett (D) said in the letter to PFA Silver Spring LC and the Peterson Companies.
A dispute over security vs. public access erupted after Chip Py, an amateur photographer, was stopped in June by a security guard while taking pictures on Ellsworth Drive in the heart of downtown and was told he needed permission. ”
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By
wayan on July 20th, 2007
From Marc Fisher, Washington Post:
“In the continuing saga of a private developer’s attempt to restrict freedom of speech in downtown Silver Spring, Montgomery County Executive Ike Leggett today delivered a powerful blow to those who would ban photography, political campaigning and other forms of speech on publicly-owned but privately-managed streets.
Leggett wrote to executives at The Peterson Companies and Foulger Pratt, the companies that built and control the $400 million downtown Silver Spring development, to make it clear that the county cannot stomach the developer’s position in the controversy that exploded this summer after nearby resident Chip Py was prevented from taking pictures on what appears to be a public space.”
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By
wayan on July 20th, 2007
Today Montgomery County Executive Ike Leggett wrote to PFA Silver Spring, the development partnership including the Peterson Companies, Foulger Pratt and Argo Investment, that developed Downtown Sliver Spring and manage Ellsworth Drive.
“The county considers Ellsworth [Drive] to be a public forum permitting the free and unfettered exercise of First Amendment rights by residents of the county and its visitors to the same extent as those rights are exercisable by residents and visitors to the county on any public sidewalk or public street within the county,”
Montgomery County Executive Ike Leggett’s full letter to PFC Silver Spring in PDF.
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By
wayan on July 18th, 2007
The Downtown Silver Spring photo contest pictures are now open for online voting
Free Our Streets recommends that photographers take a close look at all the entrants and pick the one that best visualizes the relationship of PFC Silver Spring LLC with photography and other First Amendment rights.
May we suggest Jesse Kornblum’s image of Free Speech being washed away after the July 4th Photo Walk.
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By
wayan on July 15th, 2007
From the Washington Post Editorials:
“THE DEVELOPERS who manage the heart of Silver Spring’s vibrant new downtown have backed away from their silly stance discouraging some sorts of street photography and video-making there, even going so far recently as to put up a banner over Ellsworth Drive welcoming picture-taking.
That’s an encouraging step, or rather half step. By continuing to insist that the area is private property and therefore subject to such prohibitions and policies as they see fit, the developers misread both the legal arrangements and what should be the governing spirit of the place.”
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By
wayan on July 6th, 2007
From the Montgomery County Sentinel:
A picture is worth 1,000 words, unless one of them is “No.”
The Rockville Town Square management company may enforce a policy similar to that in the Silver Spring Town Center. Two weeks ago, a security officer there stopped a man from taking pictures of that area’s open-air shops and restaurants even though the pictures were for his own recreational use.
“If you can’t take pictures, you can’t do a lot of other things like assemble, protest or run for office, or do other core, American values,” said Chip Py, the amateur photographer who was stopped by Silver Spring Town Center security guards as he was taking pictures of the town center’s landscape. “These are all basic, First Amendment rights.”
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By
wayan on July 6th, 2007
From Marc Fisher, Washington Post:
The battle over the right to treat downtown Silver Spring as if it were a real downtown–that is, a public space where people have the right to express themselves as the Constitution guarantees–continues. In the latest chapter, the developer has announced–get this–a photo contest in which winners will get $100 in coupons for doing what the developer still insists it has a right to prohibit: Take photos in an open public space.
But now, the battleground shifts a few miles to the north, to downtown Rockville, where the new town center–also a private development spurred by considerable public investment–is also making noises about preventing citizens from taking photos in what appears to any reasonable person to be a public space.
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By
wayan on July 5th, 2007
From Marc Fisher, Washington Post:
Dozens of photographers and people who believe in the right to take photos in public spaces spent the midsection of the Fourth not sitting at home watching America reclaim the Mustard Belt–the world title in competitive hot dog eating–but out in downtown Silver Spring, where until recently it was forbidden to take pictures on what looks like a public street.
Yesterday’s protest action–a simple stroll through the retail strip built by the Peterson Companies while taking pictures–is just one step in the grassroots effort to reclaim Silver Spring’s center as a public space.
The land is still owned by Montgomery County, but the lease under which the downtown development operates has been interpreted to mean that the developer may regulate visitors’ behavior as the owner of a shopping mall does, restricting political, religious and other forms of public expression. But the downtown street that Peterson manages is different, if only because the public perceives it as a seamless continuation of all the surrounding public streets.
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By
wayan on July 5th, 2007
From DC Examiner:
“More than 100 photographers and supporters used Independence Day to protest what they called the recent infringement on the freedom of a local shutterbug to take pictures at a Silver Spring development built with taxpayer help.
Chip Py, whose recent run-in with private security guards was the focus of the event, said the rally was aimed at confirming the First Amendment rights of photographers and others on property developed by public-private partnerships.
The conflict began June 12, when Py says a security guard told him he wasn’t allowed to take photos on the redeveloped Ellsworth Drive property. Py objected, citing the use of more than $100 million in taxpayer dollars to help redevelop the area and its status as a public-private partnership. Management ultimately allowed him to take the photos, but Py said he was concerned that he was stopped in the first place.
“Our rights to take photos in a public place don’t come from any company,” Py said. “They come from the Constitution.”
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By
wayan on July 4th, 2007
Today we celebrated a declaration of photographic freedom in Downtown Silver Spring.
A horde of photographers swarmed down Ellsworth Drive, exercising their First Amendment rights including freedom of assembly, petition, and speech.
The photographers demanded that the developers of Downtown Silver Spring welcome photography, videography, and other filming on Ellsworth Drive should be welcomed and protected, consistent with First Amendment rights as they would apply on any other public street.
On this day, July 4th, we did Free Our Streets from restrictions. We did show that our rights cannot be leased to PFA Silver Spring, LC, for $1 a year.
Now the question is, what will happen on July 5th?
Posted in Photo Walk News | 6 Comments »
By
wayan on July 4th, 2007
As you prepare for the big event, today’s Downtown Silver Spring Photo Walk, take a look at Ellsworth Drive as of 8pm last night.
Do you see anything different? Like a big banner saying “Welcome Photographers”? I didn’t think so.
While the PFA Silver Spring, LC, photo policy change was a first step, we stll need to show the developers of Downtown Silver Spring that photography, videography, and other filming on Ellsworth Drive should be welcomed and protected, consistent with First Amendment rights as they would apply on any other public street.
We’ll see you @ noon!
Posted in Ellsworth Drive | 2 Comments »
By
wayan on July 4th, 2007
Downtown Silver Spring Photo Walk
a declaration of photographic freedom
Wednesday, July 4, 2007 @ 12:00pm - Noon
As of June 29, PFA Silver Spring, LC, the developers of Downtown Silver Spring have now changed their photo policy.
And while Free Our Streets welcomes the change, we feel that they should welcome photography, videography, and other filming on Ellsworth Drive, consistent with First Amendment rights as they would apply on any other public street. Not a policy statement subject to change at any time.
The Downtown Silver Spring development includes $187 million in county and state funds and the once completely public property Ellsworth Drive, public investment that should come with public rights. Rights like the freedom to assemble, petition, campaign and protest.
So please meet up at the Green Turf on the corner of Ellsworth and Fenton Street at noon on July 4th. You can find more detailed directions in the ‘getting there‘ section of this site. There we will do introductions and brief everyone on the activity. Then we will enjoy our 1st Amendment photographic rights of Ellsworth Drive.
Please post questions in the comments below.
Posted in Photo Walk News | 15 Comments »
By
wayan on July 2nd, 2007
From the Metro Express:
“Its usually easy to tell which spaces are public or private. The Mall in Washington is public, the shopping mall near your house is private. But in this case, it’s a bit more tricky: Downtown Silver Spring — the mixed-use private development built in part with public funding that’s centered on Ellsworth Drive in Montgomery County might look public, but it’s not. And that catches some visitors by surprise.
Last month, a security guard stopped amateur photographer Chip Py as he was taking photos in Downtown Silver Spring, which was developed by Peterson Cos., which is also building National Harbor in Prince George’s County. The move to restrict photography incensed many who fumed that a private developer shouldn’t be able to dictate control of a space paid in part with public funding.”
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By
wayan on July 1st, 2007
From the Washington Post:
“The developer of downtown Silver Spring has backed off its policy of forbidding photography in the area without its explicit permission, but local photo enthusiasts are not satisfied.
A debate over the protection of civil liberties in public-private partnerships ignited when a security guard stopped amateur photographer Chip Py two weeks ago as he took pictures on Ellsworth Drive, a part of downtown developed by PFA Silver Spring LLC.
The developer of downtown had recently blocked Chip Py from taking pictures of the area, which was renovated with public money. Py and other photography enthusiasts reacted in outrage that a developer could control who took pictures in an place renovated with millions of county dollars.
“The issue that’s been burning up the minds and hearts of people has been: This is public money, and now it’s being run like a company,” Py said.”
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By
wayan on June 30th, 2007
From Marc Fisher, Washington Post:
“Chip Py’s run-in with the picture police of downtown Silver Spring has morphed into a good old American fight for the right to express oneself.
Py, a Silver Spring resident, discovered earlier this month that what looks and feels like any old public downtown is in reality a private, if roofless, shopping mall where private security guards can and will stop you from taking pictures just because the developer who controls the place feels like exercising its control jones.
Now, amateur photographers from all around the region have decided that they too can flex their muscles, and they plan to gather on Ellsworth Drive on the Fourth of July to demonstrate their right to take photographs in a public setting. The Free Our Streets movement is quickly gathering steam, and that’s caused something of a reaction from the powers that be.
The Peterson Companies, the developer that took advantage of $100 million in generous taxpayer support to get their lovely downtown retail strip going, is apparently running scared, and has offered what it terms a compromise. But it’s an empty offer. Peterson will put up a “Welcome Photographers” banner, but the reality is that the company is in no way conceding that the street it controls is open to the public in any meaningful way”
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By
wayan on June 30th, 2007
Have you looked at the Penguin poll on Ellsworth Drive photography lately?
There you’ll note that 91% of respondents so far believe that photography should be allowed in Downtown Silver Spring.
We at Free Our Streets agree, of course, but we also believe that photography on Ellsworth Drive should not be subject to a policy statement.
Our goal is to have PFA Silver Spring LC welcome photography, videography, and other filming on Ellsworth Drive, consistent with First Amendment rights as they would apply on any other public street. And we invite you to join us in our efforts.
You can contact your councilmembers to express your opinions on the matter and join us on the 4th of July for the Downtown Silver Spring Photo Walk.
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By
wayan on June 29th, 2007
From Just up the Pike:
“SIDE NOTE: I was accosted by security this afternoon while attempting to photograph the atrium of an office building on 12th Street in Downtown D.C. - while at work there . . .
This morning, the Peterson Companies has offered an olive branch of sorts to the photographers and bloggers it has recently slighted in Silver Spring (a detailed play-by-play of which can be found at the Baltimore Sun)….
…Peterson, owner of the Downtown Silver Spring complex, recently came under scrutiny for its “no photography” policy on Ellsworth Drive after security guards accosted photographer Chip Py two weeks ago. Py was unimpressed by the Peterson Companies’ reversal. On the Free Our Streets blog, he said that the photographers’ protest planned for July 4th on Ellsworth will go on as planned.”
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By
Chip Py on June 29th, 2007
I am a photographer. On September June 12 of this year, two representatives from the Peterson Companies, managers of the trademarked Downtown Silver Spring, asked me not to take pictures on Ellsworth Drive. At that time, the representatives misrepresented the facts regarding ownership of Ellsworth Drive, and made deliberately misleading statements over the questions that I raised regarding my First Amendment rights in a seemingly public place.
Immediately following this incident, I wrote a letter to the County Executive and to each of the members of the county council. I posted this letter on the popular photography site, Flickr.
My letter raised the question as to where the public’s civil rights end and the corporation’s privacy rights begin when there is a publicly funded/privately partnered development, in which public monies and land are developed, and then turned over to private corporations. These rights, I reasoned, not only included photography, but on a much more important note, the freedom to petition, campaign, assemble and protest, rights guaranteed by our Constitution. I asked the County Executive and members of the county council to begin a dialog about this important issue with the Peterson Companies.
In the last few weeks my letter, picked up off the Flickr site, has enjoyed wide circulation on the internet. Additionally, every major newspaper in this area reported on the issue and the questions I raised. My story was carried on national TV and syndicated public radio. Washington Post columnist Marc Fisher took a stance in his column last Thursday, which continued in his on-line chat room that afternoon. Local Listservs in the area are abuzz. Members of several prominent Blogs and newly formed photo rights groups in the area came together to organize a photo outing and protest in downtown Silver Spring this coming Independence Day to highlight the true issue here.
While council member Marc Erlich has spoken about this in the press, and I have heard from staff members and insiders that this has been hot topic in the county offices in Rockville the last two weeks, many council members and the county executive have yet to weigh in on the issue.
I am growing concerned that our elected representatives have not yet taken a decisive stance over the growing concern that in downtown Silver Spring, our civil rights may be in jeopardy.
This morning the Peterson Companies, managers and developers of the trademarked “Downtown Silver Spring,” issued a statement. They will allow photography and video taping on Ellsworth Avenue. They make provision, however, that the arrangement can be rescinded. The new policy makes no statement regarding the important issues that I have raised.
In my opinion, the Peterson Companies is missing the point. Not one of the media outlets covered this story out of a concern for the photo enthusiast. This issue has exploded in the minds and the hearts of the people hearing my story, because they fear that civil liberties are being trammeled in public/private partnerships.
With many more of these public/private partnerships now under consideration not only here in Montgomery County but also in nearby College Park and around the country these are questions that deserve to be addressed by not only by our citizens but by our public officials too.
Please join us at noon on the fourth of July. We will gather at the green turf to let our county officials know that the people of Silver Spring will not have their rights under minded and restricted in our town.
Posted in Why I Participate | 5 Comments »
By
wayan on June 29th, 2007
Below is the Downtown Silver Spring Center policy statement we received from PFA Silver Spring, LC:
“We welcome photography, videography and other filming at our Center. We permit all of these activities, as long as our patrons and tenants are neither harassed nor photographed or filmed over their objection. Also, any activity which would interfere with pedestrian or vehicular movement requires advance management approval. We continue to encourage patrons to report inappropriate behavior to police and security personnel. We reserve the right to modify this and other policies.”
Posted in Ellsworth Drive | 3 Comments »
By
wayan on June 29th, 2007
From the Baltimore Sun:
The snapshots seemed harmless, or so Chip Py thought.
Strolling around downtown Silver Spring on a recent afternoon, the amateur photographer began shooting the architecture of one of the city’s grandest revitalization efforts — a popular mix of shops, restaurants and outdoor gathering spaces that has transformed the once sleepy downtown area.
The photo shoot was cut short when a security guard ordered Py to stop, saying that photographs were not allowed on the private property.
Py was upset. Wasn’t downtown Silver Spring, a project built with millions in city and state funds, a public space?
According to the developers and Montgomery County officials, the answer is no. Py has since organized a group of about 250 concerned residents and consulted an attorney with the American Civil Liberties Union to fight what he called an attack on his First Amendment rights.
Last night, the development team, PFA Silver Spring LLC, issued a new policy, allowing photography in the area. And on July 4, it plans to display a “Welcome Photographers” banner on the site.
But Py insists photography is not his sole concern. All types of free expression should be permitted, from political campaigning to handing out fliers and other literature, he said. “They are telling us it’s OK to take pictures on the street, but we don’t have any other First Amendment rights,” he said. “They don’t want to talk about public-private rights on a street. … We are asking for some First Amendment considerations in our town.”
At noon on Independence Day, Py’s group is planning a march on Ellsworth Drive, which runs through the development.
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By
wayan on June 28th, 2007
If you, like we, are concerned about your ability to photograph in Downtown Silver Spring without undue restrictions from the development partnership including the Peterson Companies, and you are a Montgomery County voter, then we suggest you contact your duly elected representative and express your feelings on the matter.
Montgomery County Councilmember Contact Information
Posted in MoCo Politicians | 1 Comment »
By
wayan on June 28th, 2007
From Associated Content:
“Washington DC area photographers, fed up with developers and security officials attempting to restrain their right to take photographs in public spaces, will challenge the bans this Independence Day in the true spirit of American patriots.
Since 9/11, photographers have increasingly complained about security guards and others interfering with their right to photograph in public spaces. When amateur photographer Chip Py was stopped in downtown Silver Spring, Maryland, a Washington, DC suburb, in mid-June by a security guard who told him that photography was banned in downtown Silver Spring, his fellow photographers sprang into action, planning an Independence Day protest in the style of our founding fathers.”
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By
wayan on June 27th, 2007
From MoCo Gazette:
“It was a beautiful afternoon in downtown Silver Spring and Chip Py wanted to capture the images he saw on film while testing a new filter he had bought for his camera.
The Silver Spring resident stood on Ellsworth Drive and took a few pictures, but was approached almost immediately by a security officer who told him photography was not allowed.
Unconvinced, since he knew photography was allowed in public places, Py said he went to talk to the Peterson Co. management office, which oversees the development on Ellsworth Drive, including Silver Plaza.
‘‘On a public street, I can take pictures of anything I want,” Py said. ‘‘But I was told it wasn’t a public street.”
Py, 43, said he was told by management that the no-photography policy protects the company from people who might want to say or write negative things. In addition, many of the chain stores do not want their concepts to be photographed. There was also concern that Py might sell his photographs.”
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By
Chip Py on June 27th, 2007
I am a longtime resident of Silver Spring. Back in the mid nineties through my involvement with the Greater Silver Spring Chamber of Commerce and what was then called the Silver Spring Urban District, I participated in many of the activities leading up to the development of the new Downtown Silver Spring.
I have many hobbies and one of them is Photography. One could describe the kind of pictures that I take as “Urban Landscape”. Through the popular photography website Flickr, I participate in a photography group known as “DC Neighborhoods” where we pick a neighborhood, photograph its character and ambiance, and then post it to this site to share with the group and others.
Last Tuesday, I went to downtown Silver Spring, had lunch, and then took out my camera and standing on Ellsworth Avenue, I began taking shots of the buildings with the blue sky and clouds as a backdrop. Almost immediately, a security guard approached and told me “there was no picture taking allowed in Downtown Silver Spring.” What do you mean” I said, “I am on a city street, in a public place, taking pictures is a right that I have protected by the first amendment.” The guard told me to report to the management office.
There, Stacy Horan informed me that Downtown Silver Spring including Ellsworth Avenue is private property, not a public place, and subject to the rules of the Peterson Companies. They have a no photography policy to “Protect them from people who might want to use the photographs as part of a story in which they could write bad things about us.”
And she told me that many of the chain stores in Downtown Silver Spring don’t what their “concepts” to be photographed for security reasons. There was also a concern that I might sell my photographs and that is not allowed. I told her that I was well aware of my rights to take pictures on public property, any pictures that I take I have a right to sell, and questioned how they could have a policy that limits our individual rights when Downtown Silver Spring was built with public money.
I found out later that it is true Ellsworth Avenue was turned over to Peterson Companies through the process of condemnation. So now I’m wondering: If this is a $1.2 billion public/private investment as stated in Tuesday’s New York Times article about the downtown renaissance, where do the public’s rights end and the private corporations policies takeover??
In discussing this with fellow Silver Spring residents I have been told that we are not allowed to campaign, petition or protest in Downtown Silver Spring. These are basic American values, true to our beliefs, and in the Downtown Silver Spring they are banned?? In this age of eroding individual rights should the people of Silver Spring accept this??
It is my understanding that the county continues to spend public funds promoting Downtown Silver Spring and I wouldn’t discourage this, but I think that the county should have a conversation with the Peterson Companies about their policies in regards to these basic American values and freedoms.
I don’t think that the people of this county are willing to trade their rights of free speech or the right to petition assemble and protest in their own downtown for a Starbucks or a Potbelly’s.
Posted in Why I Participate | 2 Comments »
By
katmere on June 27th, 2007
I created DC Photo Rights in response to the numerous instances of harassment local area photographers have cited. I am an amateur photographer who has been shooting for about two years. I have found the DC amateur photographer society, especially through Flickr, to be a very supportive atmosphere. The metropolitan area itself, however, seems to pose a constant challenge, especially to beginners.
The specific impetuous was a photographer, Chip Py, who was harassed for taking photos from the street in Downtown Silver Spring, MD. This struck a chord with me. I live and work in Silver Spring, and I have been a supporter of the development projects in the downtown area. These projects have faced some resistance, and I was saddened to hear that the downtown area that I often defend is associated with this sort of behavior.
I am specifically interested, also, in the role that security guards at Federal Buildings play in this. Many incorrectly inform photographers that photos are illegal. While this is prevalent with security guards everywhere, I find it more disturbing when Federal security guard do this; many people regard their claims of protecting national security interests more seriously. And of course, in a few cases, photos of Federal buildings are not allowed. So this often leave photographers, amateurs especially, on uncertain grounds where they easily become victims of harassment.
Posted in Why I Participate | 2 Comments »
By
cweaver on June 26th, 2007
The rights of photographers are slowly being eroded, bit by bit. To use an old simile, it’s like flies eating a racehorse. Sure, the flies only take a nibble here and there but if the horse didn’t have that giant tail to shoo them off with, they could very well eat him up.
It’s the same thing with our rights. Little by little, we are being more and more restricted in how we can express ourselves and what we can record with our cameras. Some people are saying this particular issue isn’t a big one and are questioning whether we want to fight this battle.
Wars are won and lost on the battlefield. If we do nothing to support rights guaranteed to us by the Constitution and the Supreme Court, we may as well not have those rights. The freedoms we have are not granted to us by the government; they simply have not yet been taken away. They are the DMZ and up for grab if we don’t stand up to fight for them.
July 4th is the perfect day to come out in a show of unity and stand together to celebrate the right to photograph in public. If we don’t do this now, we will be fighting something else more drastic later on.
Posted in Why I Participate | No Comments »
By
tbridge on June 26th, 2007
I’m not a protestor by nature. I don’t carry signs. I don’t chant catchy slogans. I don’t give up sleep to protest on the steps of the Supreme Court or at City Hall. Most of that just passes me by. But I’ll be there on the Fourth of July to exercise my right to photography in a public place. Why? What’s so different this time? That’s a good question.
As part of a program in Science and Technology Studies, I got to read Martin Heidegger last summer. He’s a bit of a bore, and the people who did his translation pretty much suck at writing, but he has this basic important concept called dasein, or “Being-in-the-world.” Heidegger argues that human beings cannot be viewed except through the context that they share. Capturing that context, that essential viewpoint by way of photography becomes part of Being in the World.
It’s an expression of self and viewpoint that should not be obstructed in the commons that are owned by the Government.Clearly there are lines of demarcation that exist to protect Secret from Public, but in this case, there’s no reason for Ellsworth Drive to be a point for harassment. Thus, I will be out with my 10D and my 50mm prime lens to snap some shots of the buildings at Ellsworth Drive. Come help contextualize the world with me.
Posted in Why I Participate | No Comments »
By
Don on June 26th, 2007
There’s a number of things that get together to make this a big issue for me, though I think any one of them would do.
Top of the list has to be my concerns about public-private partnerships. When an organization enters into a deal with the government I think it’s easy for them to forget who their customer really is. It’s not whoever happens to be the politician in charge that day, it’s the citizenry whose land they’re using and money they’re spending. When a group like Peterson gets the use of some prime land for one dollar a year I feel pretty cheated when they try to limit my rights on that property. Someone who pays so little to use the public’s property is for all intents and purposes a guest, and they should treat us with the same respect we would expect from any guest in our home.
Posted in Why I Participate | No Comments »
By
wayan on June 26th, 2007
From the Silver Spring Penguin:
“Is the Downtown Silver Spring shopping center public or private space?
Local shutterbug Chip Py was snapping pics along Ellsworth Drive recently when security guards asked him to stop. It turns out Ellsworth Drive and the entire Downtown Silver Spring shopping district is leased to a private company, which deems photography a no-no”
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By
wayan on June 25th, 2007
Back in 1997, I was arrested for photography in Moscow. While you might expect that in Russia, we live in a country founded on freedoms of expression, one of which the Supreme Court has now enshrined as photography.
Unrestricted photography by private citizens has played an integral role in protecting the freedom, security, and well-being of all Americans by contributing to improvements in civil rights, labor practices, and police activity.
Yet American photographers are being stopped, harassed, and even intimidated when expressing their freedom to photograph under the guise of “security” and misguided fears about terrorism. Even when the proliferation of digital camera and camera phones are actually preventing crimes, catching criminals, and generally preserving public order.
I was recently harassed for taking photographs on a public street in Washington DC, and have often be questioned when photographing WMATA.
And now a private company who took over a public street in Silver Spring, a DC suburb, has banned photography and hassled a photographer who tried to take photos.
To me that is one step too far. One photographer harassment too much. And its time for a show of rights. Its time to join Metroblogging DC in a declaration of photographic freedom, a Silver Spring Photo Outing to remind Washingtonians that photography is NOT a crime.
Posted in Why I Participate | No Comments »
By
wayan on June 25th, 2007
Free Our Streets researcher Adam P has looked into the background on Ellsworth Drive and PFA Silver Spring LC, a development partnership including the Peterson Companies, Foulger Pratt and Argo Investment.
Here’s the results of our research on the status of Ellsworth Drive between Georgia and Fenton.
Ellsworth Drive is separated into two pieces, both of which are owned by Montgomery County. The eastern segment starts at Fenton, proceeds west and terminates at the edge of City Place Mall.
This segment is indistinguishable from Fenton Street and the portion of Ellsworth to the east of the intersection. It is a county-owned, county-controlled road.
The western segment, which stretches between the City Place edge and Georgia, is also owned by the county but is leased to PFA Silver Spring LC, a development partnership including the Peterson Companies, Foulger Pratt and Argo Investment. The parcel is designated as Map JN33, Parcel N315, district 13, account number 03279403, plat 21283. In 1998, the county agreed to “abandon” this portion of Ellsworth, meaning it would no longer be traditionally used as a county road. The abandonment was subject to county council resolution 13-1429, which stated as a condition for the abandonment: “The granting of an easement for public access on Ellsworth Drive pursuant to the General Development Agreement.”
The General Development Agreement states the following in Section 14:
“The County agrees to seek County Council approval of the abandonment of Interior Ellsworth Drive. Upon execution of Ground Leases for both Sections B and C of the Project, the County shall enter into an unsubordinated Ground Lease for a ninety-nine year term with Developer or an association formed by Developer for Interior Ellsworth Drive. The Ground Lease for Interior Ellsworth Drive shall be terminated upon a termination due to default under the Ground Lease for either Section B or C and shall not be subordinated to Developer’s Construction Financing or Permanent Financing. Devevloper shall not have an option to purchase Interior Ellsworth Drive. The Ground Lease shall be triple net at nominal rent of One Dollar ($1.00) per year and other than the cost of the initial design, development and construction thereof pursuant to a Public Improvement Contract, the Developer shall assume all cost, liability, maintenance (ordinary and capital), security, and other responsibilities incidental to ownership of and associated with Interior Ellsworth Drive. The Ground Lease shall provide that Interior Ellsworth Drive shall be used for vehicular and pedestrian traffic with an easement across it for public access to the Silver Circle Garage and access from Georgia Avenue to Fenton Street and that Interior Ellsworth Drive shall be closed up to four (4) times per year (on dates and at times to be reasonably agreed to by the Developer) to allow the County to conduct public festivals coordinated through the Silver Spring Urban District Corporation (or the County if the Silver Spring Urban District Corporation is not formed). No changes to the alignment or construction of Interior Ellsworth Drive may be made without the county’s consent. No more than a to be agreed upon number of parking spaces may be created on Interior Ellsworth Drive.”
So the GDA makes the developer responsible for security, but ensures “an easement across it for public access.” The GDA also refers to a separate Declaration of Easements in Section 13. Item 6 in that declaration states:
“6. Public Use Easements
Declarant [county] hereby establishes and grants for the use and benefit of the general public, those certain easements and rights (collectively the “Public Use Easements”) more particularly described below. Pursuant to the plans for the Downtown Silver Spring Project as approved by the applicable governmental authorities, the Public Use Easements have been designated and shall be deemed for all purposes of this Declaration to constitute Public Use Space as such term is defined in Section 59-A-2.1 of the Zoning Ordinance of Montgomery County, as the same may be amended from time to time. The Public Use Easements are described and depicted on Exhibit H attached to and made a part of this Declaration and shall consist of the following…
(iii) a perpetual non-exclusive easement and right of passage and use, free of charge, for vehicular and pedestrian ingress and egress on, over and across Ellsworth Drive…”
Section 59-A-2.1 of the county’s zoning ordinance defines public use space as: “Space required by the sector plan and other space devoted to such uses as space for public enjoyment consisting of such things as, but not limited to, green areas, gardens, malls, plazas, walks, pathways, promenades, arcades, lawns, fountains, decorative plantings, passive or active recreational areas. Such space may also consist of space and/or amenities recommended by an approved urban renewal plan. Such space shall not include parking or maneuvering areas for vehicles. Area devoted to this purpose shall be easily and readily accessible to the public without restrictions to particular segments of the public. In areas where pedestrian walkways are shown on an approved and adopted master plan or sector plan, such area within the percentage required for public space as is necessary shall be devoted to the provision of pedestrian walkways or paths for general public use.”
However, Exhibit G of the Ground Lease states: “Subject to the terms of the Declaration [of Easements] and the terms of this Lease, Tenant [developer] shall have the sole and exclusive right to manage and program the uses of the Project and to impose and enforce such reasonable rules and regulations as Tenant deems necessary to maintain order and to promote the safety, security and economic success of the Downtown Silver Spring Project.”
So both the General Development Agreement and the Declaration of Easements provide protections for the public, defined as public “access” in the GDA and “right of passage and use” in the Declaration. The Declaration even goes so far as to designate the area as “Public Use Space.” However, these rights are not absolute as Peterson has broad management authority so long as its rules are “reasonable.”
Posted in Ellsworth Drive | 4 Comments »
By
wayan on June 25th, 2007
From On The Commons:
“Amateur photographer Chip Py was wandering around the newly developed downtown section of Silver Spring when he decided to snap a few pictures. He thought the building rooftops set against the blue sky made for a handsome image. A security guard promptly rushed out to tell him that he was not allowed to take pictures; the Peterson Companies, the developer of Ellsworth Street, prohibited it.
Welcome to the latest enclosure of the commons: privately controlled public streets. Even if streets may be nominally public, companies have few qualms about claiming them as private and bullying people into forfeiting their rights as citizens.”
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