GeoJournal 58: 197-205, 2002. ) 2003 Kluwer Academic Publishers. Printed in the Netherlands. 197 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:[EMAIL PROTECTED]) 2Department of Geography, Syracuse University, Syracuse, NY 13244, U.S.A. (E-mail:[EMAIL PROTECTED]) 3Program on Political and Economic Change, Institute of Behavioral Science, University of Colorado, Boulder, CO 80309-0487, U.S.A. (E-mail: [EMAIL PROTECTED]) Key words: community gardens, property rights, public space, rights claims Abstract 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. Introduction 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. 198 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 destroyed: "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 199 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 spaces: "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 200 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 201 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 way: "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 202 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 203 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 shifted. 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 204 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. Conclusions 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 205 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. Acknowledgements 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. Notes 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. References Amar A.R., 1998: The Bill of Rights: creation and construction. Yale University Press, New Haven, CT. Barry D., 1999: Sudden deal saves gardens set for auction. New York Times, 13 May, B1. 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