The Public Square in a Private-Property Obsessed Country: What New York City’s POPS Regulations Get Right and Why Other Cities Should (Mostly) Copy Them

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, and yet, many plazas and arcades remained closed to the public. According to the NYT, building owners are simply paying the minimal fine to keep the space private and leaving the public out to dry. The discrepancy is best shown through an example in the NYT article: “the owners of 325 Fifth Avenue have been assessed a total of $54,000 in penalties since 2015. . . . [but] the bonus floor area that the developers gained could be worth approximately $80 million.” Despite that monumental failure, this Note argues that POPS regulations allow for more capable enforcement as they are currently written and that other cities should implement them for the same original reasons NYC did—the now-understood public physical and mental health benefits.