To Have or to Hold

Originally Posted on The Yale Herald - Medium via UWIRE

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Last month, in the span of 48 hours, 95 people overdosed on the New Haven Green. First responders arrived at the Green to treat one overdose, then another, and then another. Paul Bass wrote in the pages of the New Haven Independent, “For a day or two, the New Haven Green became a scene out of the Night of the Living Dead.” As the news circulated, community members were left wondering what could have caused the chaos on the Green.

The drug to blame for the overdoses was K2, a synthetic cannabinoid that is unregulated and whose chemical composition varies dramatically from batch to batch. In an email to the Yale community, Ward 1 Alder Hacibey Catalbasoglu, DC ’19, wrote that an individual was reportedly handing out free samples of the drug, hoping to acquire new clients. While no one died, the incident put all eyes on the Green.

The first day, Aug. 15, there were 76 overdoses. While many rushed to the Green to provide help, another more official meeting was underway nearby. The Committee of the Proprietors of the Common and Undivided Lands of New Haven (also called the “Proprietors of the Green,” or, more often, just the “Proprietors”) had come together for what was supposed to be a routine conference.

The Proprietors make up a group even older than Yale. They are a private organization and a committee of five, serving life terms and electing their own successors. Their organization has only one role, but it’s a role that the Proprietors, the City, and its residents have been parsing and refining almost since the group’s inception: the Proprietors own the New Haven Green.

At present, the Chair of the Committee is US District Judge Janet Bond Arterton. The other Proprietors are former Albertus Magnus College President Julia McNamara, retired banker Robert B. Dannies, Jr., social justice advocate Kica Matos, and Anne Tyler Calabresi, a philanthropist and descendant of Theophilus Eaton, one of the founders of New Haven.

On Aug. 15, the Committee was meeting to discuss some amendments to their official Regulations Governing the Use of the Green — they fixed some phrasing here and a typo there, and added a clause prohibiting smoking. Typically, they meet every six or weeks, according to Arterton. That the timing of their meeting aligned with what Arterton called the “Great K2 Catastrophe” was an unexpected and ironic twist. In that meeting, and in the ensuing weeks, “Our level of dismay was huge,” Arterton said. “How did this happen?”

As with many things where the Green is concerned, it is hard to say. Practically by definition, a privately owned public space creates situations that are logistically complex and without legal precedent. As Arterton herself is quick to point out, “although five proprietors hold this land in trust for the public, that’s what we are — five people.” The Proprietors work closely with the City and rely on it to tidy, care for, and police the Green. In essence, the arrangement between New Haven and the Proprietors hinges on treating the Green like a public park. At the same time, though, both parties must readily acknowledge that it isn’t one.

This set-up is not without its faults and convolutions. The news of last month’s overdoses and the resulting conversations make this an opportune moment to revisit the history, both recent and distant, of how the Green has fit into the fabric of the city. For, as lawyers, city officials, and the Proprietors themselves will all tell you: there is no other arrangement like this in the country.

In 1638, minister John Davenport, merchant Theophilus Eaton, and around 500 other colonists arrived at Quinnipiac land on the shore of the Long Island Sound and decided to call it their own. As Leonard M. Daggett, a New Haven lawyer and a Proprietor himself, wrote in his 1942 history of the Committee, “The Proprietors’ Committee of New Haven,” these men “came by consent of the Massachusetts Bay but so far as I know without any reservation of jurisdiction or control in that company. They simply chose their home and settled here.”

According to Daggett, the Quinnipiac people “asserted in their recitals that they had an absolute and independent power to give, alien, dispose, or sell the lands.” That said, he wrote, they noticed that other native communities living in close proximity to colonists enjoyed secure alliances and protection. For this, they agreed to sell the land for what amounted to pocket change. On Nov. 24, 1638, a written deed confirmed the purchase of the New Haven Colony.

The same year, Davenport and Eaton laid out a design for the village at the heart of the colony: the famed Nine Square Plan of New Haven. The story goes that Ezekiel’s Israelite Encampment in the Bible inspired Davenport to create an ordered, symmetrical, utopic city — a square of squares, each identical in size. Eight squares ring one 16-acre plot in the center, what we now know as the New Haven Green.

As more colonists came to New Haven, the eight outer squares and the land surrounding them were divided up and settled by newcomers. As Daggett explained, people with some claim to the land — i.e. male members of the Church — would set up their home lots on one of the squares and then allot plots in the outlying fields. The land that was not divvied up, including the central square, was deemed “common and undivided” and was owned jointly by all of the landowners in the colony.

“As we use the term, ‘proprietors’ were the original grantees or purchasers of a tract of which they and their heirs or successors and those whom they admitted afterwards to their privileges held absolute ownership and control,” Daggett wrote. However, as ownership of the common and undivided lands was passed down from generation to generation, the number of owners became unmanageably large. In 1805, the many owners voted to put together a self-perpetuating committee of five that would be responsible for maintaining and preserving the common and undivided lands — the Green chief among them — as open, common space. Five years later, the General Assembly of the State of Connecticut officially recognized Jeremiah Atwater, Levi Ives, Abraham Bishop, Francis Brown, and Thomas Painter as the first Committee of Proprietors.

In colonial New England, most town greens had a similar proprietary model. What sets the New Haven Green apart is that it has remained in private hands since its establishment more than 300 years ago. “Most New England towns had commons when they were colonies but all have been subsumed into city ownership” except New Haven’s, Arterton said.

As such, the City’s distinctive arrangement has long induced head scratching. When Daggett wrote his history of the Proprietors in 1942, he did so in an attempt to explicate and legitimate the group’s existence. “Mr. Burt, Examiner of Public Records, asks what authority our Committee has, stating that no such committee exists in any other town of the State and that he cannot find authority for our Committee,” he offered as an explanation of his purpose.

Even today, it seems, aspects of the Proprietors’ history are mysterious or ambiguous even for those most intimately involved in the Green’s affairs. The regulations that govern the Green were initially adopted in May of 1973, and it is unclear what, if any, guidelines were in place before then. Arterton said she’s not even sure what the impetus or context for drafting the 1973 regulations was.

“There is no other piece of property in the United States that is similarly managed and maintained. It is a unique land use,” Norm Pattis offered as he leaned back at his desk chair, long gray ponytail swinging behind him. With a laugh, he added, “And when you said earlier that you had difficulty understanding it all, I still do, okay?”

This is a strong statement coming from Pattis, a criminal defense and civil rights attorney who has been practicing in New Haven since 1993. More than anyone else, he is aware of the legal oddities surrounding the Green, as the only person to ever bring a case against the Proprietors.

On Oct. 15, 2011, a group of Occupy New Haven protesters established a tent city on the upper Green. To the surprise of many, the tent city persisted through winter. Just as springtime thaw began, the City and the Proprietors jointly sent a memorandum to the thirty-odd protesters requesting that they pack up and leave on Mar. 11. The note concluded: “Both the City of New Haven and the Proprietors of the Green appreciate the dedication you have brought to the cause of economic justice, and we wish you well as you move forward elsewhere.”

From there, new questions arose for the protesters, who had no intentions of leaving. “Clearly if the city owned the property, it could ask the people to leave,” Pattis pointed out. “But what if the city didn’t? And then who had the authority to make decisions about the Green? And regardless, didn’t the First Amendment protect the right of tent cities to exist as a [form] of symbolic speech?” The more Pattis read about the Proprietors (whom he called “a secret society that is repulsive and obnoxious”), the more he wanted to take them to court. He even found reason to dispute the legitimacy of the proprietors’ claims of ownership in general. “I’m a sucker for a David versus Goliath fight,” he said. “I want to be standing next to David throwing pebbles.”

Pattis represented the protesters in a case they brought against the city, then-Mayor John DeStefano, then-Police Chief Dean Esserman, and the Proprietors. In the end, both the US District Court and the US Court of Appeals in the Second Circuit ruled in favor of the City and the Proprietors. Pattis’s clients’ tent city was forcibly dismantled on Apr. 18, just in time for Yale’s Commencement. As Pattis wryly noted, “there’s always this great Potemkin exercise in the spring.” Arterton, for her part, said the Proprietors appreciated the protesters’ right to free speech but eventually became concerned about the delicate trees their tents sat atop. Plus, she said, after four months the Occupy protesters had become “not altogether law-abiding.”

In theory, the protesters could have requested a permit from the Proprietors and the city to continue their work, although this would no doubt have required them to do away with their tents and stick to daytime hours. Instead, most chose to take their fight to new places. Pattis said there was talk of bringing a case against either the City or the Proprietors “to determine once and for all who owns [the Green], and what the responsibilities were.” But Pattis had poured hours of pro-bono work into the Occupy case, and didn’t think he could do that again. “That was not a fight that I was willing to take,” he said. “I don’t know if someone else has.”

No one has taken up that fight, at least not yet. Despite the eventual outcome, the decision of the late Judge Mark Kravitz at the District Court makes an interesting attempt at picking apart some of the confusion surrounding the ownership of the Green. Kravitz did his part to acknowledge, on paper and in a court of law, some of the contradictions inherent in the Green’s dual public-private status.

In particular, he parsed the arrangement whereby the City is expected to help enforce the Green’s regulations even though they differ from those of public parks. “These are, admittedly, murky matters,” he said in the decision. “It is one thing, legally, for the Proprietors to establish rules governing the use of land they claim to own. It is another and more troubling thing for a private group to require a public official to enforce those regulations and, especially, to do so in a manner and on a schedule decreed by the Proprietors.”

The Occupy case may not have interrogated the existence of the Proprietors. But it identified the importance of thinking and talking more concretely about their relationship to the City, and to day-to-day life on the Green.

When John Rose, Jr., LAW ’66, assumed the role of Corporation Counsel for the City in 2015, he quickly realized his law school connections were going to come in handy. At the time, he said, Mayor Toni Harp was hoping to apply for money from the state to make improvements to the Green. Drew S. Days III, LAW ’66, former Solicitor General, was then a professor at Yale Law and the Chair of the Proprietors. The hope was that Rose would be able to reconnect with a former classmate and thereby mobilize the City’s capital improvement plan.

It worked out just as planned. Together with the Proprietors’ legal counsel, Rose wrote a Memorandum of Understanding between the City and the Proprietors. When it was made official on Sept. 30, 2015, the Memorandum marked the first time the relationship between New Haven and the Committee had been formalized on paper, according to Arterton. Among other things, the document states plainly, “the Green has historically served as a public park and has been administered as such by the city.” Importantly for Arterton, it “confirmed the Green as a private space [where] we have approval authority on what would go where.”

The main objective of the memorandum was to ensure the support and cooperation of the Proprietors during each stage of the city’s improvement plan, for which New Haven received $1 million from the state. So far, Arterton reported, the Green’s electrical and sewer systems have been redone, and wifi has been set up for the first time. But, there are other plans whose status she was unsure of; there was talk of appointing a permanent project manager for the capital improvements but, she said, “I’ve never heard about him since.”

And while the memorandum may have clarified the relationship between New Haven and the Proprietors in writing, it did not eliminate the challenges that arise when two organizations are each overseeing different aspects of the same space. Rebecca Bombero, Director of the Department of Parks, Recreation, and Trees, explained, “obviously the Proprietors would like to see more maintenance on the Green, but we have to balance what we can do in relation to the other spaces that we manage.”

Bombero understands the wishes and workings of the Committee of Proprietors better than most. In her role as Director, she also serves as their point person at City Hall, attending meetings and working closely with the five Committee members. Arterton urged that the Green “needs [its] priorities to be taken care of when there’s an extreme shortage of money.” But, as Bombero pointed out, budget cuts and a shrinking staff (the department currently has half the employees it did in 2001), make even everyday tasks a challenge.

It is also worth noting that, while the Proprietors collaborate on and assist financially with many projects each year, the cost of maintaining and policing the Green falls on the City’s shoulders. “They have not supplemented our operating dollars at all,” Bombero said. Arterton pointed out that the Committee regularly meets with the Engineering and Parks departments.

The Proprietors also works on supplementary projects, many of which focus on beautification. They have spearheaded planting initiatives to enhance the Green’s springtime bloom. They bought wrought iron trash cans for the Green because the white plastic ones that had been there were, she said, “singularly ugly.” And this year, they will set up lighting for 14 trees on the upper Green. In the words of Arterton, “[We’re] using our trees as sculpture.”

At the moment, however, the City, Proprietors, and New Haven community members must deal with more than just making the Green beautiful. They (if we’re being honest, we) have to think carefully about how to make the Green safer and more livable for all. In the wake of August’s overdoses, this would be a tall order even without the Green’s complicated ownership.

In the last month, the Proprietors have been brainstorming and crowdsourcing new ways to invigorate the Green and make it a better public space. The Mayor and the Police Chief have agreed to have six permanent officers just for the Green, according to Arterton. And Bombero added that one of the main goals of the Proprietors going forward will be to increase events on the Green. “They’re going to be working to program the Green with more positive activity,” she said.

In the seven years since she became a Proprietor, Arterton said the way the organization functions has changed dramatically. When she was first appointed, they met four times a year; in recent years, they’ve been meeting every six weeks. And, she added, “we have become more active, inviting many representatives of organizations and the community to our meetings.” She said the Proprietors see themselves as catalysts to get people thinking about their community space. After all, “looking at five people for blame or ideas is limiting and limited.”

She’s right. But given that the Proprietors really are just five people, one can’t help but wonder why New Haven needs them at all. Pattis has his own theory about the Committee’s continued existence. “The city has never made a takings claim to the Green as it should and could, and I suspect that’s because it doesn’t really want to own it,” he said. That way, “it can avoid ownership of some of the problems that might occur there.” As for the Proprietors, Pattis said, “[their] interest in continuing to manage this as a public space struck me as quaint and bizarre.”

Paradoxically, that’s one thing Pattis and Arterton can agree on. “It’s archaic,” Arterton said of the Committee. But, she added, the organization “has a purpose, and that purpose has maintained the Green as an open urban space for a long time.” As she sees it, the Green would have been built up and commercialized long ago were it not for the continued existence of the Proprietors. Whether you see the Proprietors as integral or vestigial, attentive or insidious, the sentiment she is trying to get us to agree on is true. 16 acres of untouched, green land can be hard to come by in any city.

To Have or to Hold was originally published in The Yale Herald on Medium, where people are continuing the conversation by highlighting and responding to this story.

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